The Course of Evidence Flashcards
The Course of Evidence:
Features of adversarial justice system - During the trial itself, the judges function…(pg 77)
- During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility
The Defendants Failure To Give or Offer Evidence:
Commenting on the defendants right to silence - Restrictions on comment on defendants right of silence at trial (pg 82)
In a criminal proceeding, no person other than the defendant or the defendants counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.
Evidence in Chief - purpose (pg 83)
The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.
Refreshing memory out of court (pg 86)
Witnesses may, before giving evidence in court, refresh their memory by reference to statements, briefs of evidence or a deposition statement
Previous consistent statement rule (pg 87)
s35 - Previous consistent statement rule
1) a previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) applies to the statement
2) a previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement
a) responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness
b) forms an integral part of the events before the court
c) consists of the mere fact that a complaint has been made in a criminal case
Unfavorable witness (pg 90)
Witnesses who simply fail to come up to brief may be unfavorable to the party calling them, but the are not necessarily hostile. ie suffers a loss of memory
Referring to your notebook (pg 100)
- ask the courts permission
- introduce the material properly - eg by saying “I interviewed the defendant and wrote the answers in my notebook at the time”
- Remember that the defence and the jury are entitled to view your notes, so seal off entries
- Remember that you are only allowed to refresh your memory, you cannot read the whole entry unless you have permission to read the notes of the interview
Features of the adversarial justice system:
- The facts of the case and evidence relevant to those facts emerge by questions put by the Prosecution and Defence to witnesses called by them.
- Its up to each party to decide what witnesses to call, the order and questions to ask.
- Each party has the right to test the testimony of witnesses called by opposing party though cross-examination.
- During the trial, the judges function to ensure the evidence is produced according to established rules, ruling on admissibility if necessary.
- Niether Judge nor jury are entitled to go beyond the evidence presented by the parties and all witnesses or pursue enquiries on their own.
With a Judges permission a witness of any age may give evidence w/o taking an oath, making an affirmation or a promise to tell the truth. If the Judge gives such permission he/she must:
- Inform the witness of the importance of telling the truth and not lies before the witness gives evidence.
- The evidence of the witness must be treated as if it had been given on oath.
Permission will be given for witnesses such as adult with intellectual disability, or where a child witness unable to promise to tell the truth
Unacceptable questions, Section 85(2) Evidence Act 2006, the judge may have regard to:
- Improper
- Unfair
- Misleading
- Needlessly repetitive
- Language to complicated
Section 125, Directions about evidence given by children:
Section 125 - provides that evidence given by children in criminal case should be treated in the same way as evidence given by adults, thus it prohibits:
• the Judge from giving warnings about absence of corroboration where a warning would not have been given in the case of an adult complainant
• Any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinize children’s evidence with special care, or that children generally have a tendency to invent or distort.
Witnesses (O/C should):
- Advise of time, date & place of trial, and exhibits to be produced.
- Have they given evidence before, if not advise of procedure.
- Advise can refresh memory from statement before giving evidence.
- Ensure witness remains within call of courtroom,
- Check jury list to ensure none are known to witnesses.
- Warn not to mix with or speak to jurors.
- Advise of witness expenses.
O/C Case, General:
- Ensure you look, stand and speak correctly.
- ID the Defendant.
- Locate and help your witnesses.
- Don’t mix or gossip with jurors or members of the defense.
O/C case, giving evidence:
- Take care to answer the question asked.
- Say you don’t know rather than guess.
- Don’t be flippant.
- Address the judge as Sir/Ma’am or your honour.
- Address the Prosecutor & Defence as Sir/Maam.
- Advise Judge of any mistakes you have made asap, or advise the Prosecutor, if you have finished giving evidence.
What is the general rule about leading questions?
Leading questions may not be asked during evidence in chief or re-examination (s89 EA06)
