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Criminal Litigation > Unit 16 - Opinion Evidence, Experts and Privilege > Flashcards

Unit 16 - Opinion Evidence, Experts and Privilege Flashcards

1
Q

TRUE or FALSE. The general rule is that witnesses may only give evidence of facts they personally perceived and not evidence of their opinion.

A

TRUE.

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2
Q

What are the exceptions to the general rule of witness evidence?

A

A statement of opinion of any matter not calling for expertise is admissible as evidence of what the witness perceived.

Statements of opinion on any relevant matter calling for expertise may be made by a witness qualified to give such an expert opinion.

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3
Q

If expert opinion is objected to, who has bears burden?

A

The party proffering the evidence has to prove its admissibility (Atkins)

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4
Q

TRUE or FALSE. Whether a witness is properly qualified in the subject calling for expertise is ultimately a question for the court.

A

TRUE.

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5
Q

TRUE or FALSE. Self-certification of expertise is sufficient.

A

FALSE.

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6
Q

What can expert opinion evidence be called for?

A

Subjects calling for expertise, which a lay person could not be expected to possess to a degree sufficient to understand the evidence given in the case unaided.

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7
Q

TRUE or FALE. There is an old-common law rule that witnesses should not express opinions on ultimate issues ( those being tried by court).

A

TRUE, but it is basically ignored.

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8
Q

TRUE or FALSE. Experts should not usurp the role of fact-finder as the ultimate decision-maker on matters that are central to the outcome of the case.

A

TRUE.

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9
Q

TRUE or FALSE. Lawyers should only diclose material to their expert which supports their case.

A

FALSE. They should disclose all relevant material, including that adverse to their case.

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10
Q

TRUE or FALSE. An expert’s main duty is to their counsel.

A

FALSE. To the court.

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11
Q

TRUE or FALSE. The judge must tell the jury to accept expert evidence if uncontradicted.

A

FALSE. They may find other good reason to not accept it.

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12
Q

If medical evidence of diminished responsibility is uncontradicted, there are no facts/circumstances to throw doubt on that opinion, yet the jury convict D of murder, is the verdict proper?

A

No - it is not a true verdict in line with the evidence.

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13
Q

How can evidence be excluded via privilege?

A

Self-incrimination;

Legal professional privilege.

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14
Q

Can a person entitled to privilege refuse to answer a question?

A

Yes.

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15
Q

Can person entitled to privilege refuse to disclose a sought document?

A

Yes.

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16
Q

If D waives privilege, can anyone else object?

A

No.

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17
Q

Can adverse inferences be drawn against a party claiming privilege?

A

no.

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18
Q

Are witnesses bound to answer questions in court, if doing so would have a tendency to expose them to criminal charges, penalty or forfeiture which is reasonably likely to be sued for?

A

No.

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19
Q

Can the court promise not to follow up on incriminating information in later proceedings?

A

Yes.

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20
Q

Can a witness claim privilege on the basis that their answer will expose them to civil liability?

A

No.

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21
Q

TRUE or FALSE. The incriminatin in question must be that of the person claiming privilege.

A

TRUE.

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22
Q

What are the two forms of legal professional privilege?

A

Legal advice privilege;

Litigation privilege.

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23
Q

Who bears the evidential burden for showing/disproving that a document is privileged?

A

The party claiming privilege has to pass the evidential burden.

24
Q

Can a court inspect documents to see if privilege is made out?

A

As a last resort. Should not do so unless there is credible evidence that those claiming privilege have misunderstood their duty/not trusted/no reasonably practical alternative.

25
Q

Legal advice privilege covers…

A

…communications between clients and legal advisers for the dominant purpose of obtaining or giving legal advice.

26
Q

Does LAP cover corporate clients?

A

Only communications with employees expressly designated to act a the client (but docs sent to Board of Directors is fine);

Not documents prepared by any other employees.

27
Q

Sir Terence Etherton set out 5 principles of litigation privilege:

A

Engaged when litigation is in reasonable contemplation;

Covers communications for the dominant purpose of obtaining information in connection with litigation;

Includes deciding whether to litigate/settle;

Documents entangled with such info are covered;

No separate head of privilege covering communications outside the ambit of this privilege.

28
Q

What is an exception to the principle of legal professional privilege.

A

Communications in furthereance of crime or fraud.

29
Q

TRUE or FALSE. Communications between D and his solicitor prior to interviews by the police are subject to privilege.

A

TRUE.

30
Q

if D doesn’t answer interview questions, and their reason is that the are following solicitor advice, does that amount to a waiver of privilege?

A

No.

31
Q

If D wants to avoid adverse interference from failure to answer questions, what may they have to do in relation to solicitor advice

A

Waive it.

32
Q

TRUE or FALSE. A person may only give an expert opinion in a criminal case if he or she has acquired their expertise in the course of a profession and / or has professional qualifications.

A

FALSE.

it is possible to give expert evidence provided that the court is satisfied of a witness’s expertise irrespective of any professional background or qualifications (although these make it easier for the Judge to be satisfied that the witness is appropriately qualified).

33
Q

TRUE or FALSE. A non-expert may give evidence of opinion about a voice which he recognises

A

True (Deenik)

34
Q

TRUE or FALSE. The unfitness of the accused to drive, on a charge of driving whilst drunk, is not a matter calling for expertise.

A

FALSE. The fitness of the accused to drive is a matter calling for expertise, though a non-expert may give evidence of his impression as to whether the accused had taken drink, providing he describes the facts on the basis of which he formed that impression

35
Q

TRUE or FALE. A non-expert may give evidence of opinion as to the speed of a vehicle

A

TRUE.

36
Q

Can an expert give evidence that they think the accused’s testimony/statement is unreliable?

A

No.

37
Q

TRUE or FALSE. Experts, when giving evidence, draw the court’s attention to any question to which the answer would be outside his area or areas of expertise.

A

TRUE.

38
Q

TRUE or FALSE. A legal adviser must refuse to give oral evidence or to produce documents relating to communications between the client and his legal adviser made for the purpose of enabling the client to obtain or the adviser to give legal advice about any matter.

A

TRUE.

39
Q

Does privilege attach to documents emanating from, or prepared by, independent third parties and passed to a lawyer for the purposes of advice?

A

No.

40
Q

TRUE or FALSE. An expert’s competence can only stem from formal experience.

A

FALSE.

41
Q

TRUE or FALSE. Expert evidence may be given where it deals with areas within the experience and knowledge of the tribunal of fact.

A

FALSE. It must be outside their experience and knowledge.

42
Q

What can non-expert witnesses state their opinion on?

A

Matters not calling for particular expertise, as a way of conveying the facts which he has personally perceived.

43
Q

Can expert evidence be accompanied by animations and graphic 3D reconstructions to illustrate their opinion?

A

Yes.

44
Q

Can experts express opinions on ultimate issues?

A

Only if the actual words employed are not noticeably the same as those which will be used when the issue falls to be considered by the court.

45
Q

TRUE or FALSE. Experts are banned from giving opinion evidence in response to hypothetical questions.

A

FALSE. There is no such rule.

46
Q

TRUE or FALSE. Statements in rebuttal of allegations of recent fabrication fall within an exception to the rule against previous consistent statements.

A

TRUE.

47
Q

TRUE or FALSE. It is open to an accused to attempt to rebut an inference of recent fabrication by showing that the relevant facts were communicated to a third party, usually the solicitor, at about the time of the interivew.

A

TRUE.

48
Q

TRUE or FALSE. Using previous instructions to solicitor to rebut inference of recent fabrication waives privilege.

A

FALSE, if it was the solicitor to whom the fact was communicated.

49
Q

TRUE or FALSE. Statements in rebuttal of allegations of recent fabrication fall within an exception to the rule against hearsay.

A

TRUE.

50
Q

Does a client waive privilege with their solicitor if there is no way of dealing with an allegation made by the prosecution other than by revealing what was said between them?

A

No.

51
Q

Can privilege be waived by a Defendant giving evidecne on the voir dire?

A

Yes, where not repeated before the jury.

52
Q

TRUE or FALSE. The amount of alcohol likely to have been eliminated in the period between driving and providing a specimen is a matter calling for expertise.

A

TRUE.

53
Q

TRUE or FALSE.

The likely deterioration of memory of an ordinary witness is a matter calling for expertise.

A

FALSE.

54
Q

TRUE or FALSE. Whether the fact that a call was routed through a particular cell site is consistent with the phone and its user having been at a particular location is a matter calling for expertise.

A

TRUE.

55
Q

TRUE or FALSE. The state of knowledge and skill of a physician as shown by his treatment of the case in question is a matter calling for expertise.

A

TRUE.

Criminal Litigation (18 decks)

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