The Course of Evidence Flashcards
What is the role of a judge in a trial jury
- 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
What is the difference in oaths/affirmations for those 12yrs and over v those under 12yrs
- 12 or over - must take an oath or affirmation
- under 12 - must be informed by the judge of the importance of telling the truth and not telling lies, and must make a promise to tell the truth
Who may comment on the fact that the defendant did not give evidence at their trial
(right to silence)
- defendant
- defendant’s counsel
- judge
What is the purpose of evidence in chief
To elicit testimony that supports the case of the party calling the witness
What is the definition of a leading question
A question that directly or indirectly suggests a particular answer to the question
What are the three reasons why leading questions are generally not permitted
- .there is a natural tendency for people to AGREE with suggestions put to them by saying “yes” even if those suggestions do not precisely accord with their own view of what happened
- counsel asking leading questions of their own witnesses can more easily ELICIT the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony
- danger that leading questions will result in the MANIPULATION or CONSTRUCTION of the evidence through collusion, conscious or otherwise, between counsel and the witness
Leading questions must not be asked in evidence in chief or re-examination unless…..
- question relates to introductory or undisputed matters
- question is put with the consent of all other parties
- judge allows the question, in exercise of the judges discretions
In what circumstances is it likely that leading questions will be allowed by the judge in exercise of the judges discretion
- identification evidence
- assisting memory
- hostile witness
- young persons, english second language, limited intelligence
What must be done if a witness wishes to consult a document to refresh their memory while giving evidence in court
- leave of the judge must be obtained
- the document must be shown to every other party in the proceeding
- the document must have been made or adopted by a witness at a time when their memory was fresh
How may a witness refresh their memory out of court
Referencing statements which they may have made before. The requirement is that the document relates to matters which are within the witnesses own knowledge
When is a previous consistent statement is admissible
- responds to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness
- forms an integral part of the events before court
- consists of the mere fact that a complaint has been made in a criminal case
If an application is granted to declare a witness “hostile”, what questions can they be asked
- leading questions
- questions designed ato probe the accuracy of memory and perception
- questions at to prior inconsistent statements
- challenges to veracity, including evidence from other witnesses
What is the definition of a hostile witness
Means the witness:
- exhibits/appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on the matter about which the witness may reasonably be supposed to have knowledge
- 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
- refuses to answer questions or deliberately withholds evidence.
What are the two purposes of cross-examination
- elicit information supporting the case of the party conducting the cross-examination
- challenge the accuracy of the testimony given in evidence in chief
When is there a duty to cross examine
- the cross examination deals with significant matters in the proceeding
- the matters are relevant and in issue in the proceeding
- the matters contradict the evidence of the witness
- the witness may reasonably be expected to be in a position to give admissible evidence on those matters
In relation to unacceptable questions what type of questions might a judge disallow
- improper
- unfair
- misleading
- needlessly repetitive
- expressed in complicated language
When can leave be given to give rebuttal evidence
- 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 prosecutions case was closed
- required to be admitted in the interests of justice for any other reason
What are some examples of judicial warnings where a judge may direct the jury that evidence should be scrutinised with care or given less weight
- unreliable evidence
- certain ways of giving evidence
- lies
- children’s evidence
- identification evidence
- delayed complaints or failure to complain in sexual cases
When might a judge give a warning that evidence may be unreliable
- hearsay evidence
- evidence of a statement by the defendant if that evidence is the only evidence implicating the defendant
- evidence by a witness who may have a motive to give false evidence
- evidence of a statement by the defendant to another person while both were in prison or other place of detention
- evidence about conduct of the defendant if the conduct was more than 10 years ago
When a warning for lies is given what direction should be included
- the jury needs to be satisfied that the defendant did lie before they use the evidence
- people lie for various reasons
- the jury should not necessarily conclude that just because the defendant lied that they are guilty
What should the O/C advise witnesses of in preparation for trial
- time, date, place of trial and exhibits required
- advise them of procedure for giving evidence
- refresh memory from statement before court
- remain within call if excluded from courtroom
- check witnesses are not known to jurors
- warn not to mix or speak with jurors
- witness expenses
What should you do if you need to refer to your notebook in court
- ask the courts permission
- introduce the material properly
- seal of other entires as defence and the jury are entitled to view your notes
- are only allowed to refresh your memory - cannot read the whole entry unless permission is granted
