The Course of Evidence Flashcards
Judges Role in Jury Trial
JUDGE ROLE IN JURY TRIAL
- Decide all concerning the admissibility of evidence
- Determine whether any evidence is fit to be submitted for the jury to consider
- Instruct jury on rules of the law by which the evidence is to be weighed on once it’s submitted
How to Address Judge
Your honour or Sir/Ma’am
Oath and Affirmation
OATH AND AFFIRMATION
12+ must take an oath/affirmation before giving evidence
-12 need to be done informed by the judge the importance of telling the truth and not lying AND make a promise to tell the truth before giving evidence
Oath and Affirmations (2)
OATH AND AFFIRMATION (2)
Witness of any age can give evidence without oath/affirmation/promise.
If judge allows it they must inform them the importance of telling the truth/not telling lies then accepted as if given in oath.
Considered for adult witnesses with intellectual disabilities or child witness unable to promise to tell the truth
Purpose of Examination-in-Chief
To elicit testimony that supports the case of the party calling the witness.
Refreshing Memory
REFRESHING MEMORY
- Using statements, brief of evidence or deposition prepared on statements made months before - only documents that witness has knowledge of.
- Out of Court (prior) and In Court: S90(5) - with leave by judge can consult a document made at time their memory was fresh
What is a Leading Question
LEADING QUESTIONS
A question that directly or indirectly suggests a particular answer to the question (S4)
A general rule is they cannot be asked during chief of re-examination (S89)
Leading Questions Allowed
LEADING QUESTIONS ALLOWED - S89
General rule is they may not be asked during examination-in-chief or re-examination. Unless question relates to introductory/undisputed matters, hostile witnesses, it is put with the consent of all other parties or judge allows the question with their discretion (89(1)(c)).
S89(1)(c) Discretion such as - witness has been labelled as hostile, assist counsel to elicit evidence from young people who have difficulty speaking English/intellectual issues, direct witness to the subject of identification of evidence, questions around surrounding circumstances as long as the answer is not suggested.
Why Are Leading Questions Not Allowed
LEADING QUESTIONS NOT PERMITTED
- Counsel asking questions of their own witnesses can elicit the answers they want more easier, reducing genuineness of testimony
- Will result in manipulation of the evidence through collusion between counsel and witness, consciously or not.
- Natural tendency for people to agree with suggestions by saying yes even if not exactly what they remember.
Hostile Witness
HOSTILE WITNESS - S4 EA06
- Witness the refuses to answer questions or deliberately withholds evidence
- Witness shows a lack of veracity when giving evidence unfavourable to party who called the witness when they are supposed to have knowledge on a matter
- Gives evidence thats inconsistent with a statement previously made by them which shows an intention to be unhelpful
- Just because they suffer memory loss, provide adverse evidence or inconsistent statement/evidence by itself doesn’t justify hostile - unfavourable witness
Hostile Witnesses and Leading Questions
HOSTILE AND QUESTIONING
- Can ask leading questions (challenged with regard to how they know the facts about that which they are testifying and tested on such matters as to their accuracy of memory and perception).
- Ask questions as to prior inconsistent statements
- Ask questions designed to get the accurate memory/perception
- Other challenges to veracity
Previous Consistent Statement
PREVIOUS CONSISTENT STATEMENT
Generally inadmissible - repetition of an allegation doesn’t make it true. Fact that it was repeated/heard more puts danger on getting more weight than it warrants.
Prevents court getting inundated with repetitive material that’s trying to boost witness’s consistency
Exceptions to Prohibition in Previous Consistent Statement (S35)
PREVIOUS CONSISTENT STATEMENT ADMISSIBILITY - Only admissible if (S35(2)):
- Forms an integral part of the events before the court
- Responds to a challenge that will/has been made about witnesses veracity based at on previous inconsistent statements or claim of invention of part of that witness
- Consists of the mere fact that a complaint had been made in a criminal case
Once admitted it is admissible to prove anything that is of consequence (S7).
Purpose of Cross-Examination
- To elicit info supporting the case by the party doing the cross examination
- To challenge accuracy of a testimony given in chief (try cast doubt on witness veracity)
Duty to Cross-Examine
DUTY TO CROSS EXAMINE - S92(1)
- It deals with significant matters in the proceeding
- Matters are relevant and in issue in the proceeding
- Matter will contradict the evidence of the witness
- Witness may reasonably be expected to be in a position to give admissible evidence on those matters
