Workshop 7: Trial and Hearsay

Question 1

What must all witnesses do before giving evidence or making an affirmation?

Answer 1

Take an oath

Question 2

What is the test for children and those with an unsound mind when receiving evidence?

Answer 2

Whether they ‘have sufficient appreciation of the solemnity of the occasion and for the particular responsibility to tell the truth which is involved in making an oath’

Question 3

What could happen if you refuse to take an oath?

Answer 3

Punished as contempt of court

Question 4

What type of questions should be asking for ‘examination in chief’?

Answer 4

Non-leading

Question 5

How many evidence adduced from a leading question be considered?

Answer 5

Inadmissible or carry less weight

Question 6

What are statements made out of court seeking to provide the truth if considered to be?

Answer 6

Hearsay

Question 7

What three ways may an out of court written witness statement be used in court?

Answer 7

1. May be read out if contents are agreed
2. Witness can ask to ‘refresh their memory’ from their statement
3. In cross-examination on a previous inconsistent statement

Question 8

Can a witness who deems it undesirable to read their statement in a witness box refuse?

Answer 8

Yes, e.g., a dyslexic witness may wish to withdraw to a quiet room to do so

Question 9

What may a witness be cross examined on following the ‘refreshing of their memory’?

Answer 9

On contents used to refresh their memory without the statement coming into evidence

Question 10

When may the judge form the view a witness is not ‘desirous of telling the tuth’ and then a party calling the witness as ‘hostile’?

Answer 10

When they give account for evidence that is inconsistent with their original statement

Question 11

What can a party do when a witness is deemed as being ‘hostile’?

Answer 11

A party is free to cross examine them and put their previous statement to them as the truth of the matter

Question 12

Can inconsistent statements be presented to a witness to prove the truth of its contents, even if it is deemed as inadmissible hearsay before the witness contradicted it in evidence?

Answer 12

Yes

Question 13

What is the general rule regarding a witness’s allegation being repeated on numerous occasions regarding its reliability in court?

Answer 13

That it is heard in court but not generally admissible to elicit evidence from the witness’ earlier consistent allegations/statements

Question 14

What are the exceptions to the rule that a witness’ consistent allegations/statements will not be heard as evidence in court?

Answer 14

• Res gestae
• Suspect’s response to police allegation
• Complains
• Recent fabrication

Question 15

What two things must be considered when an exception of when the court will hear the evidence of an earlier consistent complaint or statement?

Answer 15

1. Whether the consistent statement can be used to prove the statement itself is true
2. Whether the consistent statement only proves the consistency of the person making the earlier statement

Question 16

What is ‘Res gestae’?

Answer 16

A stataement made as an immediate reaction to a crime being committed agaist the statement maker

Question 17

Are Res gestae admissible?

Why/why not?

Answer 17

Yes - it would be admissible to prove the truth of the (implied) allegation

Because the persona would not have had any time to conjure a false response

Question 18

Are the responses to all police allegations admissable?

Answer 18

Yes

Question 19

What types of responses within statements made by suspects on accusation by the police are admissible in court?

Answer 19

• Confessional
• Involve self-serving denials of guilt

Question 20

Can a suspect’s whole denial of an offence to the police prove the truth of the denials?

Answer 20

No

Question 21

Can a suspect’s whole denial of an offence to the police be used for the jury to assess the overall conduct of the defence and the consistency of the defence’s denials?

Answer 21

Yes

Question 22

What is the ‘doctrine of recent complaint’?

Answer 22

A principle where complaints are simply made admissible when the complainant testifies that the earlier complaint was made and true

s.120 Criminal Justice Act 2003

Question 23

What does the Criminal Justice Act 2003 allow regarding the earlier complaint of a complainant?

Answer 23

To show consistency in complaining and prove the truth of the complaint

Question 24

How can a witness refer to previous consistent statements when rebutting ‘recent fabrication’ allegation in the court?

Answer 24

By showing that their earliest statement was made to the same effect as the statement impugned as being a recent fabrication

Question 25

When can a witness refer to previous consistent statements when rebutting ‘recent fabrication’ allegation in the court, and that be admissible in the court?

Answer 25

When being challenged in the box about the witness having just made something up in court

Question 26

What is a ‘leading question’?

Answer 26

Questions that contain factual statements that indicate what answer the advocate wants to witness to make

Question 27

When can witnesses be encourage to give opinions?

Answer 27

On ‘everyday matters’

E.g., giving opinion that someone was drink

Question 28

Why do the courts generally not admit police witness statements into evidence?

Answer 28

Because it classifies as hearsay

Question 29

When may police witness statement be admissible into evidence?

Answer 29

If the witness in the box giving live evidence departs materially from the statement

Question 30

What may ‘departing materially’ from statement look like when a witness is giving live evidence in the witness box?

Answer 30

• Contradicting the statement
• Adding something to the statement that was no there originally

Question 31

How may the party using the statement in cross-examination refer to previous original statements when challenging the discrepancy of account when a witness is testing in the witness box live?

Answer 31

That the original statement was made much closer to the incident and its common for inconsistencies to arise between evidence the statement and evidence in the box

Question 32

What restrictions are in place on cross-examination in the court?

Answer 32

1. Upsetting a witness should only ever be done when serving a clear and useful purpose, not for its own sake
2. Time limits on time dedicated issues
3. Carefully guarded law surrounding victims/complainants of sexual offences; can’t question one’s sexual behaviour without leave of the court

Question 33

When may ‘re-examination’ be requested’?

Answer 33

When matters raised in cross-examination may not have been reasonably covered in ‘examination in chief’ and after ‘cross-examination’

Question 34

What structure should the form of questioning follow in ‘re-examination’?

Answer 34

No leading questions unless the matter is not in dispute - exactly as ‘examination in chief’

Question 35

Is a witness allowed to refresh their memory in ‘re-examination’?

Answer 35

Yes