The course of evidence Flashcards
What is the Judges role in a trial by Jury?
- To decide all questions concerning admissibility of evidence.
- To explain and enforce the general principles of law applying to the point at issue.
- To instruct the Jury on the rules of law by which the evidence is to be weighed once it has been submitted.
Witnesses who are 12 years of age and under must take an oath of affirmation before giving evidence. Witnesses under 12 must:
- Be informed by the judge of the importance of telling the truth and not telling lies, and
- After being given that information makes a promise to tell the truth before giving evidence
Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant, counsel or the Judge may comment on the fact that the defendant did not give evidence at their trial.
What is the purpose of the examination in cheif
To elicit testimony that supports the case of the party calling that witness
Define leading questions and what the general rule in relation to leading questions is
- A leading question is one that directly or indirectly suggests a particular answer to the question.
- The general rule is that leading questions may not be asked during evidence in chief or re-examination
The general rule about leading questions is that leading questions are not to be put to a witness during evidence in cheif or re-examination. What are the 3 reasons why leading questions are not generally permitted.
- There is a natural tendency for people to agree with suggestions put to them by saying “yes”
- Counsel asking leading questions of their own witnesses can more easily get the answer they wish to receive.
- There is a danger that leading questions will result in the manipulation or construction of evidence between the counsel and the witnesses.
When are leading questions permitted?
- When the question related to introductory or undisputed matters, or
- When the questions are put with the consent of all other parties, or
- When the judge, in the exercise of the judge’s discretion, allows the question
Can a witness refresh their memory before court, explain
- Witnesses may, before they give evidence in court, refresh their memory by reference to statements or briefs of evidence or check their recollection with the officer that interviewed them, and so forth.
- The requirement is that the document relates to matters which are within their own knowledge.
If a witness wishes to consult a document whilst giving evidence, the following conditions must be satisfied: Or…. can a witness refresh their memory in court. Or…. What three conditions must be satisfied for a witness to consult a document in court.
- The leave of the judge must be obtained
- The document must be shown to all parties in the proceeding
- The document needs to have been made or adopted by a witness at a time their memory was fresh
What is the previous consistent statement rule.
A previous statement of a witness that is consistent with the witness’s evidence is only admissible if the statement
- Responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on previous inconsistent statement of the witness or on a claim of invention on the part of the witness, or
- Forms an integeral part of the events before the court, or
- Consists of mere fact that a complaint has been made in a criminal case
If a witness is declared hostile the witness may be asked questions in the manner of cross-examination to the extent that the judge considers necessary. List four things this may include
- Asking leading questions
- Asking questions designed to probe the accuracy of memory and perception
- Asking questions as to prior inconsistent statements
- Other challenges to veracity, including evidence from other witnesses
Define Hostile Witness
- Exhibits a lack of veracity when giving evidence unfavourably to the party who called the witness on a matter about which the witness may reasonable be supposed to have knowledge of.
- Give evidence that is inconsistent with a statement made by that witness in a manner that exhibits an intention to be unhelpful to the party who called the witness
- Refuses to answer questions or deliberatley withholds evidence
A witness is deemed to be hostile when: (M/C)
Refuses to answer questions or deliberatley withholds evidence.
Destinction between hostile and unfavourable witnesses …. or … if a witness has memory loss can they be called hostile?
Witnesses who simply fail to come up to brief may be unfavourable to the party who called the witness, but they are not necessarily hostile. Witnesses who suffer memory loss or provides evidence inconsistent with another statement does not necessarily justify finding the witness as hostile.
What is the purpose of cross-examination
- To elecit information supporting the case of the party conducting the cross-exmination
- To challenge the accuracy of the testimony given in evidence in chief