Unit 7 - Evidentiary aspects Flashcards
Discuss the adversarial system.
- The presiding officer (judge) acts as a neutral facilitator who intervenes minimally in the proceedings.
- The parties (defense and prosecution in criminal cases, plaintiff and defendant in civil cases) are responsible for presenting their own cases and calling their witnesses.
What are the methods of securing attendance of witnesses ?
- Informal request.
- Subpoena.
Discuss subpoenas.
- Formal order that requires a witness to appear in court and/or provide documents.
- Non-compliance with a subpoena can lead to serious consequences, such as: in civil cases a warrant of arrest or imprisonment for up to 3 months or a fine of up to R300; in criminal cases imprisonment for failure to comply.
When may a subpoena be set aside ?
If the evidence requested is irrelevant; privileged; or if issuing the subpoena constitutes an abuse of power.
Discuss witnesses called by the court in criminal cases.
- Section 186 of the Criminal Procedure Act allows the court to subpoena witnesses when their testimony is deemed essential for justice.
- The court may also recall a witness to provide further evidence.
- If a witness is adverse to the party who initially called them, the party may rebut the witness’s testimony.
- Cross-examination of court-appointed witnesses is allowed only with the court’s permission.
Discuss recusal from legal proceedings.
- Judicial impartiality is a cornerstone of fair trials.
- A judge must not be biased or have preconceived ideas about the case.
- Recusal occurs if there is a reasonable apprehension that the judge may not be impartial.
Le Grange.
What are the exceptions for new evidence to be presented after a party closes their case ?
- Rebuttal of new evidence (criminal).
- Incriminating statements by the co-accused (criminal).
- Balance of prejudice (civil).
Discuss the memory of a witness.
- A witness is allowed to give evidence from memory, and such evidence is usually admissible as long as it’s accurate and reliable.
- When a witness is unable to recall specific events, they can refresh their memory by consulting a document that records the relevant facts.
Which factos contribute to memory loss ?
- Delay between the event and the trial date.
- Repeated retelling of the event to various people, such as law enforcement or lawyers.
- Distorting cues from questions during examination-in-chief or cross-examination.
- Anxiety or distress caused by the courtroom setting.
What are the common law requirements for refreshing of memory ?
- Personal Knowledge (direct experience with events).
- Inability to Recollect.
- Verification of the Document.
- Freshness (the document used should have been created or checked when the events were still fresh in the witness’s mind).
- Use of orignal document.
- Production of original document.
What are the requirements for the production of the document ?
- Original document must be produced.
- The document must be authenticated.
Discuss secondary evidence being the only means of proving the original document and the requirements under this exception.
- Document is lost or destroyed.
- Document is in the possession of the
opposing party. - The document is in possession of a 3rd party.
- It is impossible or inconvenient to produce
the original. - It is permitted by statute.
Weltz case.
Discuss section 211 of the Criminal Procedure Act.
- Evidence of an accused’s previous convictions is generally not admissible in criminal proceedings.
- Except in cases where the fact of a previous conviction is an element of the offence being charged; the accused has testified and revealed their prior conviction voluntarily.
What are the impact of interpreters and intermediaries on the cross-examination ?
- Hinder the flow of cross-examination.
- Cause delays.
- Lead to nuances in testimony being lost in translation.
Discuss section 78(1) of the Criminal Procedure Act.
A person is not criminally responsible if they could not understand the wrongfulness of their actions or act accordingly due to mental impairment.
