The Course of Evidence Flashcards
When a judge is presiding over a trial by jury, he or she must:
- decide all questions concerning the admissibility of evidence
- explain and enforce the general principles of law applying to the point at issue
- 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 or older must take an oath or affirmation before giving evidence . Witnesses under the age of 12 must:
- be informed by the judge of the importance of telling the truth and not telling lies, and
- after being given that information, make a promise to tell the truth, before giving evidence.
Who can comment on the defendant electing his right to silence
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.
The purpose of evidence in chief is to
elicit testimony that supports the case of the party calling that witness.
Define a leading question
a leading question as one that directly or indirectly suggests a particular answer to the question
The prohibition on leading questions is based on the belief that it will produce unreliable evidence for the following reasons:
What reasons are given for the prohibition on asking leading questions
- 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 elicit the answers which they wish to receive,
- There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise,
Leading questions are statutorily permitted in evidence in chief in some circumstances:
In what situations can leading questions be asked
(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the Judge, in exercise of the Judge’s discretion, allows the question
It is likely that leading questions may be allowed under s 89(1)(c) in the following circumstances:
- To direct the witness’s attention to the subject of identification evidence
- In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue,
- To assist counsel in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence.
- Where the witness has been declared hostile.:
Hostile Witness is defined in section 4 of the Evidence Act 2006. In relation to a witness, means the witness
- exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
- gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
- refuses to answer questions or deliberately withholds evidence.
There are two purposes of cross-examination:
- to elicit information supporting the case of the party conducting the cross-examination
- to challenge the accuracy of the testimony given in evidence-in-chief
In what situations can evidence be called in rebuttal of something arising during the trial
- relates to a purely formal matter
- relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen
- was not available or admissible before the prosecution’s case was closed, or
- is required to be admitted in the interests of justice for any other reason.
If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—
(a) whether to accept the evidence:
(b) the weight to be given to the evidence.
Witnesses who are 12 years of age or older must take an oath or affirmation before giving evidence (s 77). Witnesses under the age of 12:
− must be informed by the judge of the importance of telling the truth and not telling lies, and
− must, after being given that information and before giving evidence, make a promise to tell the truth.
What is the role of a judge in a trial by jury?
When a judge is presiding over a trial by jury, his or her role is to:
− decide all questions concerning the admissibility of evidence
− determine whether there is any evidence that is fit to be submitted to the jury for its consideration
− explain and enforce the general principles of law applying to the point at issue
− instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
Define “leading question” under s 4 of the Evidence Act 2006
A leading question is one that directly or indirectly suggests a particular answer to the question.
What is the purpose of cross-examination?
There are two purposes of cross-examination:
− to elicit information supporting the case of the party conducting the cross-examination
− to challenge the accuracy of the testimony given in evidence-in-chief, for example, by casting doubt on the witness’s veracity, or by eliciting contradictory testimony.
A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—
(a) the age or maturity of the witness:
(b) the physical, intellectual, psychological, or psychiatric impairment of the witness:
(c) the trauma suffered by the witness:
(d) the witness’s fear of intimidation:
(e) the linguistic or cultural background or religious beliefs of the witness:
(f) the nature of the proceeding:
(g) the nature of the evidence that the witness is expected to give:
(h) the relationship of the witness to any party to the proceeding:
(i) the absence or likely absence of the witness from New Zealand:
(j) any other ground likely to promote the purpose of the Act
In giving directions under subsection 103 (alternative way of giving evidence) the Judge must have regard to—
the need to ensure—
(i) the fairness of the proceeding; and
(ii) in a criminal proceeding, that there is a fair trial; and
(b) the views of the witness and—
(i) the need to minimise the stress on the witness; and
(ii) in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence; and
(c) any other factor that is relevant to the just determination of the proceeding.
A Judge may direct, under section 103, that the evidence of a witness is to be given in an alternative way so that—
(a)the witness gives evidence—
while in the courtroom but unable to see the defendant or some other specified person; or
(ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; or
(iii) by a video record made before the hearing of the proceeding:
What would be covered in the crowns opening address
detailed explanation of the charge or charges,
The burden and standard required
Summarise the case against the defendant
The evidence that the Crown proposes to call.
Define unfavorable witness
A witness who simply fails to come up to brief to the party calling them
Unacceptable questioning - the judge may disallow or direct that a witness is not obliged to answer any question the judge considers
improper, unfair, needlessly repetitive, or expressed in a language that is too complicated for the witness to understand
Section 7 Evidence Act
Fundamental principal that relevant evidence is admissible
All relevant evidence is admissible in a proceeding except
Inadmissible under this act or any other act or
Excluded under this act or any other act
Evidence that is not relevant is not admissible in a proceeding
Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding
Section 35 Evidence each
Previous consistent statement rule
A previous statement of a witness that is consistent with the the witness evidence is not admissible unless:
To respond to a challenge to the witnesses veracity or accuracy
The circumstances relating to the statement provide reasonable reassurance that the statement is reliable and
The statement provided the court with information that the witness is unable to recall
