Trial I Flashcards
What does it mean if a witness if ‘competent’?
They are permitted to give evidence to the court
Who is a competent witness?
Generally anyone with a few exceptions
Is a defendant a competent witness?
Not to be a prosecution witness, but competent to give evidence on own behalf or on behalf of co-D
Can a defendant ever be a prosecution witness?
Not until proceedings are completed against them so they are no longer a defendant in the case
Are children/people with a disorder or disability competent witnesses?
If they can understand questions and give comprehensible answers - yes!
At what age is a child a competent witness?
Age is not the determining factor - is about the understand questions/give comprehensible answers test
Is a spouse/CP competent?
Yes - for any party in the case
Are deaf/speech impaired people competent witnesses?
So long as they understand the solemnity of taking the oath or affirmation (can give evidecnce with help of interpreters, handwriting, sign language etc.)
How is ‘compellability’ different to competence?
Compellability refers to if a witness can be compelled to give evidence, rather than if they can
Are defendants, children and those with a disorder/disability compellable?
- D - can give evidence on own behalf but cannot be compelled (cannot be compelled for prosecution because not competent)
- Children or persons with disorder/disability - if competent, they are compellable
Can spouses be compelled to give evidence for both proscution and defence?
- Defence = yes
- Prosecution = only if offence charged against partner is domestic violence, (threat of) child abuse, child sexual offence, or attempts of any of these
Logic: spouses/CPs should not normally have to act against the interests of their partners unless the partner is inflicting domestic violence or abusing children - courts can then force spouses to attend and give evidence against consent; can be arrested if refuse to attend or held in contempt if they refuse to answer
What happens if someone is compelled and refuses to attend?
Can be arrested / held in contempt of court
What is the only time courts will hear opinions from witnesses?
Witnesses are generally called upon only to be witnesses of fact (and not opinion) - it is for jury to decide on what conclusions to make from factual evidence
- Opinion evidence - opinion given re commonplace occurence about which witness’ perception appears relevant and proper
- Expert evidence
Regarding opinion evidence, on what basis will the court not restrict a statement that would usually be considered an opinion?
E.g. ‘a man was drunk’ = opnion so not normally admissible
Where it is factual observation of a commonplace assessment e.g. speech slurred, walking unsteadily (observation) = drunk (assessing drunkness)
I.e. opinions acceptable as having been derived from observed facts
- Statement is a way of expressing in summary the factual observations witness made (speech slurred, walking unsteadily)
- Assessment is sufficiently commonplace a task; an everyday thing (assessment of drunkness)
If a party seeks to rely on expert evidence, what must they establish?
That the expert has sufficient expertise (level of which may be set by law)
What are the duties of an expert witness?
- Play a neutral and objective role
- (If multiple) establish matters they agree/disagree on and narrow down/explain disagreements
- Define boundaries of expertise (if questioning goes beyond)
- Not answer questions requiring opinion on ‘final issue’ in case e.g. caused death
Is a jury obliged to accept expert evidence if it is not contradicted?
No; a jury is not obliged to accept expert evidence and can accept alternative conclusion
Will a jury ever be directed to accept expert evidence?
Only if expert’s opinion and all other evidence inevitably leads to one conclusion
What are the 2 types of privilege to be aware about in a criminal trial?
- Against self-incrimination
- Legal professional privilege
