Trial I Flashcards
What does it mean if a witness if ‘competent’?
They are permitted to give evidence to the court
Who is a competent witness?
Generally anyone with a few exceptions
Is a defendant a competent witness?
Not to be a prosecution witness, but competent to give evidence on own behalf or on behalf of co-D
Can a defendant ever be a prosecution witness?
Not until proceedings are completed against them so they are no longer a defendant in the case
Are children/people with a disorder or disability competent witnesses?
If they can understand questions and give comprehensible answers - yes!
At what age is a child a competent witness?
Age is not the determining factor - is about the understand questions/give comprehensible answers test
Is a spouse/CP competent?
Yes - for any party in the case
Are deaf/speech impaired people competent witnesses?
So long as they understand the solemnity of taking the oath or affirmation (can give evidecnce with help of interpreters, handwriting, sign language etc.)
How is ‘compellability’ different to competence?
Compellability refers to if a witness can be compelled to give evidence, rather than if they can
Are defendants, children and those with a disorder/disability compellable?
- D - can give evidence on own behalf but cannot be compelled (cannot be compelled for prosecution because not competent)
- Children or persons with disorder/disability - if competent, they are compellable
Can spouses be compelled to give evidence for both proscution and defence?
- Defence = yes
- Prosecution = only if offence charged against partner is domestic violence, (threat of) child abuse, child sexual offence, or attempts of any of these
Logic: spouses/CPs should not normally have to act against the interests of their partners unless the partner is inflicting domestic violence or abusing children - courts can then force spouses to attend and give evidence against consent; can be arrested if refuse to attend or held in contempt if they refuse to answer
What happens if someone is compelled and refuses to attend?
Can be arrested / held in contempt of court
What is the only time courts will hear opinions from witnesses?
Witnesses are generally called upon only to be witnesses of fact (and not opinion) - it is for jury to decide on what conclusions to make from factual evidence
- Opinion evidence - opinion given re commonplace occurence about which witness’ perception appears relevant and proper
- Expert evidence
Regarding opinion evidence, on what basis will the court not restrict a statement that would usually be considered an opinion?
E.g. ‘a man was drunk’ = opnion so not normally admissible
Where it is factual observation of a commonplace assessment e.g. speech slurred, walking unsteadily (observation) = drunk (assessing drunkness)
I.e. opinions acceptable as having been derived from observed facts
- Statement is a way of expressing in summary the factual observations witness made (speech slurred, walking unsteadily)
- Assessment is sufficiently commonplace a task; an everyday thing (assessment of drunkness)
If a party seeks to rely on expert evidence, what must they establish?
That the expert has sufficient expertise (level of which may be set by law)
What are the duties of an expert witness?
- Play a neutral and objective role
- (If multiple) establish matters they agree/disagree on and narrow down/explain disagreements
- Define boundaries of expertise (if questioning goes beyond)
- Not answer questions requiring opinion on ‘final issue’ in case e.g. caused death
Is a jury obliged to accept expert evidence if it is not contradicted?
No; a jury is not obliged to accept expert evidence and can accept alternative conclusion
Will a jury ever be directed to accept expert evidence?
Only if expert’s opinion and all other evidence inevitably leads to one conclusion
What are the 2 types of privilege to be aware about in a criminal trial?
- Against self-incrimination
- Legal professional privilege
What does the ‘against self-incrimination’ privilege mean the courts will do?
Uphold witness’ right to refuse to answer questions/disclose documents that would make that person liable to incriminate themselves
What are the limits of self-incrimination?
Whose behalf it can be claimed on, if it is claimed…
- Cannot claim it to protect another person (even spouse) or in civil court
- If privilege claimed = claimer cannot prvent same information being acquired by other routes (investigatory body can consider how else to access)
What is legal professional privilege and what are the two kinds?
The privilege that exists when a client communicates with a lawyer
- Litigation privilege - where purpose of communication is to advance/act in process of litigation
- Advice privilege - obtain advice generally
As the two types of legal professional privilege are quite similar, what is the difference between the two?
Third party communication will only be protected by litigation privilege
- Third party communication generated during or in contemplation of litigation = privilege
- Third party communication and no litigation = no privilege (because not advice from a lawyer)
Who can waive privilege and how?
- Only by client/person entitled to privilege (not law firm)
- Can be waived fully either explicitly or by conduct
What is the difference between oath and affirmation? What is the general rule with them?
No difference in eyes of law - all witnesses must take oath or make affirmation before giving evidence
What is the only exception by which evidence can be received unsworn?
In the case of children and those with an unsound mind
Courts can receive evidence but would be wrong to make witness take the oath
What is the test for children/those with unsound mind regarding whether they can give evidence unsworn?
They have sufficient appreciation of the solemnity of the occasion and or particular responsibility to tell the truth which is involved in taking an oath
Re an oath, is the ultimate issue whether the words on the oath card perfectly match variant of religion witness adheres to?
No - rather to assess if oath is one that witness would find binding on one’s conscience
What can refustal to take an oath result in?
Punishment for contempt of court
EXAMINATION IN CHIEF
What is the form of questioning to be used and what if it is not used? What is the exception to this?
- Non-leading (evidence adduced from leading Qs may be deemed inadmissible)
- Exception = leading questions may be allowed on issues not in dispute or where witness is hostile
Leading = Qs that prompt/encourage the answer wanted
EXAMINATION IN CHIEF
As statements made out of court are considered hearsay (if they seek to prove truth of their contents), what are the 3 ways a witness statement may be used in court?
- Statement read out if contents of statement are agreed upon
- Witness can ask to refresh their memory from statement (normally uncontroversial)
- In cross-examination on a previous inconsistent statement
EXAMINATION IN CHIEF
If a witness statement is used to refresh memory, what is best practice that should be noted?
- Permissible where earlier written account provides a ‘significantly better’ recollection than could be achieved without it
- Evidence given afterwards should be from a recovered memory (not just reading out statement)
Witness does not have to read statement in witness box where undesirable e.g. a dyslexic witness may wish to withdraw to a quiet room
EXAMINATION IN CHIEF
If a witness refreshes their memory, what can they be cross-examined on?
The contents of the statement they used to do so without that statement coming into evidence
Where material other than that which witness used to refresh memory is raised in questioning, this entitled other side to apply to put statement into evidence so jury can form own view about basis for the cross-examination
EXAMINATION IN CHIEF
When can a party calling a witness apply to the judge to treat the witness as ‘hostile’? What does this allow a party to do?
- Can apply if a witness gives an account inconsistent with original statement when they are called to give evidence
- Means party can cross examine them and put previous statement to them as truth of the matter (even though statement was deemed inadmissible hearsay before witness contradicted it)
E.g. domestic abuse victim retracts statement after pressure from offending partner
EXAMINATION IN CHIEF
What is the general rule on previous consistent statements?
Court hears witness make allegation in court and it is not generally admissible to elicit evidence that witness made earlier consistent allegations/statements
Due to general principle that an allegation made by a witness does not become more reliable simply through witness repeating on numerous occasions
EXAMINATION IN CHIEF
What are the exceptions to the general rule on previous consistent statements i.e. court will hear evidence of an earlier consistent complaint/statement?
- Res gestae - instantaneous reaction by victim of crime will be admissible
- Suspect’s response to police allegation - responses to police are admissible whether confssional or involve self-serving denials of guilt
- Complaints - admissible if complaint testifies that earlier complaint was made and was true (quicker complaint made = more likely to be reliable)
- Rebuttal of ‘recent fabrication’ allegation - witness can negate allegation by showing earlier statement made to same effect
CROSS-EXAMINATION
What form of questioning can be used in cross-examination?
Leading questions - contain factual statements that indicate what answer the advocate wants witness to make
CROSS-EXAMINATION
If a witness’ account is not challenged by cross-examiner, what will it be deemed to have been?
Tacitly accepted
CROSS-EXAMINATION
Can leading questions be used for both factual challenges (promoting alternative factual case to one being expressed by witness) and imputations on witness’ character (done plainly to witness’ face)?
Yes!
CROSS-EXAMINATION
Can a witness be asked to comment on another?
No, this is improper questioning e.g. ‘Well, you can’t both be right, so are you calling X a liar?’
CROSS-EXAMINATION
When can police witness statement (classifies as hearsay) become admissible? What can then be done with it?
- Where witness in box materially departs from the statement (contradicts/adds something new)
- Can be shown to witness to challenge discrepancy, referring to how it was made closer to incident and that it is a signed and sworn statement
CROSS-EXAMINATION
Will all discrepancies mean previous inconsistent (witness) statements can be presented to witness to challenge discrepancies?
No - minor discrepancies are expected as witnesses can become flustered and make mistakes
CROSS-EXAMINATION
Is upsetting a witness a permissible thing to do?
No unless it serves a clear and useful purpose (determined by judge)
CROSS-EXAMINATION
Why would a judge use time limits on questioning?
If they feel like issues have been sufficiently covered/are peripheral
CROSS-EXAMINATION
What kinds of questions are carefully guarded by law?
Questions put to victims/complainants of sexual offences
What is the rule of finality to collateral matters do?
Prevents trials from splintering into multiple insignificant disputes about credibility related matters that are collateral to issues in the case - answers will be taken as final
E.g. witness to bank robbery asked in cross examination if they have lied on mortgage application and they say no, defence prohibited from adducing evidence of mortgage application; matter collateral to main issues and “no” is final in eyes of the law
When will court be more lenient on the rule of finality to collateral matters?
If a witness is based or partial
RE-EXAMINATION
When may the party calling witnesses ask further questions after cross-examination (in re-examination)? What rules should these questions follow?
- If matters are raised in cross-examination which could not reasonably have been covered in examination in chief
- These questions should follow the same rules in examination in chief (no leading questions, witnesses can refresh their memory etc.)
