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Criminal Law and Practice > Witnesses at Trial > Flashcards

Witnesses at Trial Flashcards

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1
Q

What is the competence of a witness?

A

Whether the witness is permitted to give evidence to the court

(A witness is competent if a person ‘may lawfully be called to testify’)

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2
Q

Is the defendant/accused a competent witness for the prosecution?

A

No

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3
Q

What is the case where there are multiple defendants and them being competent witnesses for the prosecution?

A

None of them can be prosecution witnesses for the other unless proceeding are completed against one of them

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4
Q

Who can the defendant and co-defendant’s be competent witnesses for?

A

Themselves or co-defendants

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5
Q

What is the test for children and persons with a disorder or disability being competent witnesses?

A
  • age alone is not the determining factor

Test:

(1) whether they can understand questions AND

(2) can give comprehensible answers

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6
Q

Can spouses/civil partner be competent witnesses for either party?

A

Yes - competent witness for either party.

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7
Q

Can deaf or speech impaired witnesses be competent witnesses?

A

Yes so long as they understand the solemnity of taking the oath or affirmation. They can give evidence using interpreters, handwriting, sign language or any combination of these

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8
Q

Is the defendant a compellable witness to either side?

A

No - cannot be compelled by either side to give evidence

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9
Q

Are children or persons with a disorder or disability compellable witnesses?

A

If they are competent then they are compellable

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10
Q

Spouses and civil partners cannot normally be compelled by the prosecution to give evidence against their partner. What four exceptions are there to this rule?

A

They can be compelled where their partner is compelled with:

  • assault on, or injury or threat of injury to that spouse or partner (ie domestic violence)
  • assault on or injury or threat of injury to a child under 16
  • a sexual offence against someone under the age of 16
  • attempts, conspiring, aiding and abetting any of the above
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11
Q

Can a spouse or civil partner be compelled to give evidence for their spouse or partner’s defence?

A

Yes

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12
Q

What happens if someone is compelled to be a witness but fails to turn up/fails to answer questions?

A
  • if they refuse to attend, they can be arrested
  • if they refuse to answer questions they can be held in contempt of court
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13
Q

Witness are generally only there to be witnesses of facts. When can witnesses can opinions to the court?

A
  • they can give their opinion in relation to commonplace occurrences about which the witness’s perception appears relevant and proper or
  • if the witness is an expert
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14
Q

What are examples of opinion evidence that is admissible from a lay person?

A
  • drunkenness
  • opinions on identification - tall old etc
  • recognition of voice and handwriting
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15
Q

What sort of things would require expert evidence?

A

Technical matters of science, medicine, psychology etc

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16
Q

How can expertise be acquired?

A

Through a course of study or practical experience

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17
Q

Who has the burden of establishing that an expert has sufficient expertise?

A

The party seeking to rely on the expert evidence

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18
Q

Are experts partisan?

A

No their role is to be neutral and objective - primary duty to the court

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19
Q

What should be done if there are multiple experts on a case?

A
  • They should meet to establish matters they agree and disagree on
  • narrow the issues between them and to explain the basis on which any disagreement is founded
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20
Q

Is a jury obliged to accept expert evidence, even if it is not contradicted?

A

No

21
Q

What should the judge do if expert opinion and all other evidence leads inevitably to only one conclusion?

A

The judge should direct the jury to accept the opinion as correct

22
Q

What is the right against self-incrimination for all witnesses other than the defendant?

A

Witness can refuse to answer questions or disclose documents if to do so would be self-incriminating

23
Q

What are the limits on the privilege of witness not to self-incriminate?

A
  • privilege protects only them and no one else
  • protects against criminal not civil liability
  • does not prevent the privileged information being obtained by other routes
24
Q

What are the two forms of legal advice privilege?

A
  • litigation privilege - purpose of communication with a lawyer is to advance or act in a process of litigation
  • advice privilege - to obtain advice more generally
25
Q

When will third party communication be protected by litigation privilege?

A

If it is generated during or in contemplation of litigation but not if no litigation is involved

26
Q

How can legal privilege be waived?

A

By conduct or explicitly by client

27
Q

What must witnesses do in court before giving evidence?

A

They must either give an oath or make an affirmation

28
Q

When might unsworn evidence be received by the court?

A

When evidence is given by children and those of unsound mind

29
Q

What is the test for children and those with unsound mind for taking an oath?

A

Whether they have sufficient appreciation of the solemnity of the occasion and of particular responsibility to tell the truth which is involved in taking the oath

30
Q

What is the principle regarding oaths?

A

Oath should be one that the witness would find binding on their conscience

31
Q

What happens if a witness refuses to take an oath or affirmation?

A

They can be punished for contempt of court

32
Q

What form should questioning not take?

A

Questioning should not be leading

33
Q

If questioning is leading, what is the consequence for any evidence obtained?

A

It may be considered inadmissible or carry less weight

34
Q

When may leading questions be used?

A

May be allowed on issues not in dispute or where the witness has been deemed hostile

35
Q

What are the three ways in which an out of court written statement may be used in court?

A

a) statement may be read out if contents of statement are agreed. Jury will be directed to value statement as if given as oral evidence in court

b) can be used to refresh witnesses memory

c) in cross-examination on a previous inconsistent statement

36
Q

What limits are there on witness using a witness statement to refresh their memory?

A
  • permissible where the earlier written account provides a significantly better recollection than could be achieved without it
  • evidence given in court should be as a result of a recovered memory rather than just witness reading out statement
37
Q

What happens if a witness is called to give evidence and gives an account inconsistent with their original statement to the point the judge forms the view that the witness is not desirous or telling the truth?

A
  • the party calling that witness may apply to the judge to treat them as hostile
  • that party is then free to cross examine them and put their previous statement to them as truth of the matter
38
Q

Is an inconsistent statement presentment to a witness to prove the truth of its content not inadmissible due to hearsay?

A

No admissible notwithstanding that it is hearsay as the witness contradicted it in evidence

39
Q

What are the four exceptions whereby the court will hear evidence of an earlier consistent complaint or statement?

A
  • res gestate
  • suspect’s response to police allegation
  • complaints
  • recent fabrications
40
Q

What is res gestate? And why is it admissible?

A

Statement made by victim as an immediate reaction and is admissible

Admissible because person would not have had any time to conjure up a false response if you only look at what was said in the immediate aftermath of an incident

41
Q

What is the rule in relation to complaints and how can they be used?

A

Common law principle that the quicker someone complains about an allegation, the more likely the complain is to be reliable

CJA 2003 - complaints admissible where complainant testifies that the earlier complaint was made and was true

Can show consistency in complaining and prove truth of complaint

42
Q

How can previous consistent statements be used in relation to recent fabrications?

A

Witness can negate allegation of recent fabrication by showing earlier consistent statement

43
Q

What is the effect of a witness’s account not being challenged on a particular point?

A

Point is deemed to have been tacitly accepted

Rule applies to both factual challenges and imputations on the witness’s character (which must be done to their face)

44
Q

When will police witness statements be admissible even though they are hearsay? What can it be used to show?

A

When a witness in the box materially departs from that statement, either by contradicting it or adding new information

Can highlight that statement was given nearer the time and signed and sworn

Can highlight credibility of witness

45
Q

When may barristers upset a witness?

A

Where is serves a clear and useful purposes

Never just for the sake of it

46
Q

What must be obtained to ask victim’s of sexual offences about their promiscuity or other sexual behaviour?

A

Leave of court

47
Q

What is the rule of finality of collateral matters?

A

Witnesses responses to questions on collateral matter are to be accepted and not further challenged to prevent trials from splintering into multiple insignificant disputes abut credibility related matters collateral to the issues in the case

48
Q

What evidence is likely to be allowed to be admitted in relation to collateral issues?

A

Evidence in relation to witness being biased or partial.

If a witness denies this, then counter-evidence is admissible

49
Q

What happens if matters are raised in cross-examination which could not reasonably have been covered in examination in chief?

A

Party calling the witness may ask further questions after the cross-examination (re-examination)

Criminal Law and Practice (20 decks)

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