Witnesses Flashcards
Who is generally considered competent?
Anyone is competent
Who is not competent to be a prosecution witness?
- D is not competent to be a prosecution witness
- Co-D can also not be a prosecution witness for another D
What does competence refer to?
Competence depends on understanding questions and providing comprehensible answers.
Age and disability are not relevant.
Can most individuals be compelled to give evidence?
Yes, most can be compelled, but some cannot
D cannot be compelled.
Who cannot be compelled to give evidence?
The defendant
Under what circumstances can spouses be compelled to give evidence for the prosecution?
If the crime is domestic violence, child violence, or child sexual violence
Otherwise, they are not compellable for the P.
Can spouses be compelled by the defence?
Yes.
What is the general rule regarding opinion evidence.
It is inadmissiable.
When can opinion evidence be admitted?
If the opinion is a commonplace occurense where W’s perception is relevant - e.g X was drunkg, it is X’s handwriting
Who must establish an expert’s sufficient expertise?
The party seeking to rely on the expert evidence
What should be encouraged among multiple experts in a case?
They should meet and discuss before
Can experts be asked to give an opinion directly on the final issue?
No
Is the jury obliged to accept expert evidence?
No
What is the privilege against self-incrimination
Witness can refuse to answer questions if to do so would make the person liable to incriminate themselves
This cannot be invoked to protect another.
What is legal professional privilege?
All direct communication between lawyer and client is privileged.
When can third-party communication attract privilege?
If generated during or in contemplation of litigation
Can legal professional privilege be waived?
Yes
What must all witnesses do before giving evidence?
All must take an oath
What form of questioning does Examination in Chief take?
Non-leading
What is memory refreshing in Examination in Chief?
Witnesses can ask to refresh their memory from their witness statement
Can leading questions be asked after memory refreshing?
Yes, leading questions can be asked on these.
What defines a hostile witness?
A witness who gives an account inconsistent with their original statement.
What can be done if a witness is hostile?
An application can be made to the judge to treat them as hostile.
What can be put to a hostile witness?
Previous inconsistent statements can be put to them, even if they would have been inadmissible hearsay before.
What is the general rule regarding previous consistent statements?
Generally, it is not admissible to elicit evidence of earlier consistent allegations or statements.
What are the exceptions to the rule on previous consistent statements?
- Res Gestae: Immediate reactions of a victim are admissible.
- Statements made by suspects on accusation by the police.
- Complaints: Quicker complaints are more likely to be reliable.
- To rebut an accusation that the witness has recently made up.
What type of questioning is used in Cross Examination?
Leading questions
What happens if a witness’s account is not challenged?
It is deemed to have been tacitly accepted.
Should witnesses be encouraged to give opinions during Cross Examination?
No, witnesses should not be encouraged to give opinions.
What can be put to a witness during Cross Examination?
Previous inconsistent statements can be put to the witness.
What are the restrictions during Cross Examination?
Upsetting a witness should not be done gratuitously.
What does it mean if the court determines finality on collateral matters?
If there is an irrelevant fact, the W’s answer will be deemed final, and you cannot adduce evidnece on this issue.
What is Re-examination?
If matters are raised in Cross Examination that could not have been reasonably covered in Examination in Chief, the witness may be examined in chief on those matters with the same rules (non-leading questions)
