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Criminal Litigation > Unit 9: Witness Evidence > Flashcards

Unit 9: Witness Evidence Flashcards

1
Q

A witness is competent if:

A

They may lawfully be called to testify; and

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2
Q

A witness is compellable if:

A

Being competent, the witness may be compelld by the court to testify.

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3
Q

What are the two exceptions to the presumption that all persons are competent to give evidence?

YJCEA s53

A

If the person is unable to understand questions put to him or her as a witness and to give answers to them which can be understood.

An accused is not competent to give evidence for the prosecution.

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4
Q

What are the four exceptions to the general rule that all competent witness are compellable

(hint: only need to know about the first two tbh)

A

The accused is not a compellable witness for the defence;

An accused’s spouse or partner is, except for a few specified offences, not compellable for either prosecution or co-accused;

The Sovereign, heads of other sovereign states and diplomats;

Bankers.

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5
Q

What are a few reasons why a co-accused may ‘no longer be liable to be convicted’ under s53(4) YCJEA?

A

Acquitted;

To be tried separately;

AG enters a nolle prosequi (no longer prosecuting);

If they plead guilty.

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6
Q

Is D required to give evidence in a voir dire?

A

No - they can elect to do so.

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7
Q

Which two sections/acts govern the competence and compellability of spouses/civil partners?

A

section 53(1) YJCEA 1999

section 80 PACE 1984

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8
Q

What are the ‘specified offences’ for which a spouse/CP can be compelled to give evidence?

A

Assaults/threat of injury/injury to the spiuse or civil partner OR to a person under 16;

A sexual offence alleged in respect of a person who was under 16 at the time;

Attempting or conspiring to commit, or aiding/abetting/counselling/procuring/inciting the commission of either of the above offences.

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9
Q

If someone used to be married/CP to the accused, but no longer is, can they be compelled to give evidence?

A

Yes; it is as if they were never married.

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10
Q

When can a spouse/civil partner be compellable to give evidence for the prosecution?

A

Only in respect of the specified offences.

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11
Q

Can a spouse/civil partner be compelled to give evidence for the prosecution if they are also charged in the proceedings?

A

No.

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12
Q

What are the five propositions from Barker [2010] relating to the competency of child witnesses?

A

The section 53 question is entirely witness/child specific;

No presumptions/preconceptions;

W does not need to understand the importance of telling the truth; does not need to be able to understand and answer every question;

The child should have the ability to understand the questions put by both D and P and to provide understandable answers;

Section 53 is not a discretionary exercise, but a judgment as to whether W fulfils the criteria.

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13
Q

What are the conditions for a child to be sworn for the purpose of giving evidence on oath? (YJCEA s55)

A

Be 14;

Have a sufficient appreciation of the selmnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.
(giving an intelligible testimony is evidence of this)

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14
Q

Who must prove that a child witness satisfies the criteria of s55 YJCEA?

A

The party seeking to have the witness sworn. Any proceedings held to determine this should be held in the absence of the jury.

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15
Q

Before giving evidence, a witness must…

A

take an oath or affirm (unless legislation provides otherwise)

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16
Q

If a witness is competent but is not permitted to be sworn, they shall…

A

Give their evidence unsworn.

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17
Q

At common law, does a witness called merely to produce a document need to be sworn?

A

No.

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18
Q

What is the impact of not being sworn?

A

W will not be liable for cross-examination.

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19
Q

Under YJCEA s56(5), where a witness gives evidence unsworn, can a conviction/verdict/finding be taken to be unsafe for the purposes of a grounds of appeal by reason of the fact that W was a person within s55(2) and so should have given evidence on oath?

A

No.

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20
Q

When can Mags Court 1 (who has just convicted D) remit the offender to Mags Court 2 (where he has previously be convicted but waits for sentence) remit the offender to that court to deal with the instant offence?

A

D is over 18;

The other court consents;

The instant offence is either imprisonable or punishable with disqualification from driving.

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21
Q

Who bears responsibility for attendance of witnesses?

A

Police: prosecution witnesses

Defence solicitor: defence witnesses

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22
Q

When can a witness summons be applied for?

A

Where Pros of def wish to secure the attendance of a witness but are not satisfied that the witness will attend voluntarily.

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23
Q

What happens if P disobeys a witness order/summons without just excuse?

A

They will be guilty of contempt of court.

They can be summarily punished, maximum penalty is 3 months imprisonment.

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24
Q

What are the exclusionary rules of general application?

A

Hearsay;

Opinion;

Character of the accused.

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25
Q

Is evidence elicited by leading questions inadmissible?

A

No, but the weight to be attached to it may be substantially reduced.

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26
Q

Are leading questions allowed to identify persons/objects in court?

A

Yes; virtually impossible otherwise!

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27
Q

Are leading questions allowed for formal/introductory matters?

A

Yes.

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28
Q

Are leading questons allowed for facts not in dispute?

A

yes.

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29
Q

Are leading questions allowed if the party is given leave to treat them as hostile?

A

Yes.

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30
Q

What are the two conditions for referring to a document to refresh memory?

A

Give evidence that the document records recollection at the time it was made;

Recollection at that time is likely to have been significantly better than at the time of the oral evidence.

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31
Q

Can a trial judge refuse applications for refreshing under s139?

A

Yes; they have a residual discretion.

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32
Q

Can a judge implement the memory-refreshing procedure?

A

Yes, if it is in the interests of justice to do so.

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33
Q

Can memory-refreshing be implemented in cross-examination?

A

Yes

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34
Q

Do the memory-refreshing conditions apply to refreshing memory prior to going into the witness box?

A

No!

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35
Q

Is there a problem with several witnesses being handed statements in circumstances where they can compare with each other what they all said?

A

Yes.

If it emerges in XX that discussions may have led to fabrication, it may be unsafe to leave any of the evidence to the jury. It may just requrie a direction on the implications of their conduct.

36
Q

Under s120 CJA, the witness’s complaint is admissible subject to a number of conditions:

A

W testifies that they made the statement and it is true;

W claims that an offecne was committed against him/her;

The offence is one to which the proceedings relate;

The complaint is about conduct which would constitute the offence or part of it.

37
Q

Why is evidence of previous consistent/self-serving statements excluded?

A

Such evidence is easily manufactured and of no evidential value. The fact that D said the same thing to someone else on a previous occasion does not confirm evidence.

38
Q

List a few exceptions to the general rule against consistent statements:

A

Complaints;

Previous identification and description;

Statements in rebuttal of allegations of recent fabrication

39
Q

Is a party entitled to impeace the credit of their own witness?

A

Generally, no. They can if evidence of bad character is not for damaging credibility, but instead supports some other discrete part of the prosecution case.

40
Q

When a witness appears hostile to the judge, what is the impact on the general rule against impeaching credit of own witnesses?

A

Two modifications:

  • That party may, by leave of the judge, prove a previous inconsistent statement of the witness;
  • The party calling them may XX by asking leading questions.
41
Q

When should an application to treat W as hostile first be made?

A

When the witness first shows unmistakable signs of hostility (Pestano).

42
Q

If a witness gives evidence contrary to an earlier statement, should the party instantly apply to treat them as hostile?

A

No - consider inviting them to refresh their memory.

43
Q

Does the judge have absolute discretion to determine a witness to be hostile?

A

Yes.

44
Q

When assessing whether a witness is hostile under s3 CPA, what factors will a judge consider?

A

Whether W is in a position to assist;

Whether W has indicated a willingness to assist;

Previous accounts given;

Demeanour in the witness box;

It does not solely depend on whether W has been previously inconsistent.

45
Q

The second rule in s3 CPA concerns:

A

A party contradicting a hostile witness by calling over witnesses to prove that which W failed to establish.

46
Q

The third rule of s3 CPA allows:

A

The judge to give leave to prove that W has made at other times a statement inconsistent with the previous testimony.

47
Q

What does CJA s120 stipulate?

A

A statement by a witness admitted as evidence to rebut a suggestion that his or her oral evidence has been fabricated will be admissible for the truth of its contents and to support W’s credibility.

48
Q

Can leading questions be asked in re-examination?

A

No.

49
Q

What questions should be asked during re-examination?

A

Matters arising out of XX, except with leave of the judge.

50
Q

Can memory be refreshed during re-examination?

A

Yes.

51
Q

What does s119 CJA 2003 stipulate?

A

If in criminal proceedings W gives oral evidence and admits making a previous inconsistent statement, that statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.

52
Q

TRUE or FALSE. Statements admissible under s119 CJA can be used against co-accused.

A

FALSE. They are only admissible for truth as evidence against their maker.

53
Q

What is ‘tendering’ by the prosecution?

A

Where P calls the witness, swears them in, asks no questions in chief other than name and address, and leaves them to the defence.

54
Q

The YJCEA protects three categories of witness from cross-examination by an accused in person:

A

No person charged with a sexual offence may cross-examine in person the defendant;

No person charged with a specified offence can XX a protected witness;

The court has a general power, for other cases, to give direction prohibiting XX where:

  • Quality of evidence is likely to be diminished by XX;
  • It would not be contrary to the interests of justice.
55
Q

Can a legal representative be imposed to XX the witness, where the accused is disallowed from XXing them in person?

A

Yes.

56
Q

What directions must the judge give to the jury when they refuse permission for them to XX the witness?

A

Any warning considered necessary to ensure that D is not prejudiced by inferences that may be drawn from the prevented XX/ XX by an appointed representative.

57
Q

What are the 3 objects of XX?

A

To elicit from the witness evidence supporting the cross-examining party’s version of the facts in issue;

To weaken or cast doubt upon the accuracy of the evidence given by the witness in chief;

In appropriate circumstances, to impeach the witness’s credibility.

58
Q

Can the judge ask a witness questions necessary in the interests of the accused?

A

Yes.

59
Q

What happens if a judge interrupts a barrister during their cross-examination too much?

A

The Court of Appeal has previously said that if this hampers counsel, it may count as a material irregularity.

60
Q
  1. A party who fails to XX a witness upon a particular matter in respect of which it is proposed to contradict the witness or impeace his or her credit by calling other witnesses…
  2. What is the reason for this?
A
  1. …tacitly accepts the truth of the witness’s evidence in chief on that matter, and will not thereafter be entitled to invite the jury to disbelieve the witness in that regard.
  2. It is unjust to not provide W with the opportunity to offer an explanation/defend themselves against conclusions.
61
Q

Should counsel comment during cross-examination?

A

No - stick to questions.

62
Q

Are statements such as “I suggest to you that…” ; “Do you ask the jury to believe that…” acceptable in XX?

A

These should be avoided; keep these to opening/closing speeches.

63
Q

Do the exclusionary rules of evidence (hearsay/opinion/privilege, etc) apply to cross-examination?

A

Yes.

64
Q

Can the judge limit the length of XX?

A

Yes. Reasonable time limits can be imposed in certain situations.

65
Q

Is cross-examination on bad character allowed?

A

If it falls within a specified category of admissibility in s100/101 CJA.

66
Q

What is the rule of finality re collateral matters?

A

Evidence is not admissible to contradict answers given by a witness to questions put in cross-examination which concern collateral matters.

67
Q

AG v Hitchcock stipulates to test for whether a matter is collateral:

A

If the answer is one which you could be allowed on your own part to prove in evidence then it is a matter on which you may contradict the witness.

68
Q

What is the litmus test of the special measure regime?

A

The court must consider which measures will maximise the quality of the evidence.

69
Q

Give a list of statutory special measures for vulnerable/intimidated witnesses:

A

Screening W from D;

Give evidence by live link;

Give evidence in private;

Ordering removal of wigs and gowns;

Video recording of evidence in chief, XX and re-examination;

Examination through an intermediary;

Provision of aids to communication;

A witness anonymity order.

Restrictions on reporting/public access to W’s identity;

Complainant anonymity in sex offence cases;

Prohibition of XX by accused for child complaints/witnesses to sexual offences, violence, cruelty, kidnapping, false imprisonment or abduction OR adult complainants in sexual offences.

Pre-trial depositions of children/young persons.

70
Q

What are the eligibility categories for special measures?

A

All witnesses under 18;

Vulnerable witnesses affected by a mental or physical impairment;

Witnesses in fear or distressed about testifying;

Adult omlainants of sexual offences of Modern Slavery Act offences;

Any witness to a case involving a ‘relevant offence’, currently defined as homicide or firearm/knife offences.

OTHERWISE, the court must determine whether W’s condition will diminish evidence quality.

71
Q

What must the court be satisfied of to enable testimony of a witness via live link?

A

It would be in the interests of justice; and

The live link would enable the accused to participate more effectively as a witness.

72
Q

For which witnesses/defendants should intermediaries be used?

A

For those most in need.

73
Q

TRUE or FALSE. An intermediary usually only intervenes where miscommunication is likely to have occurred.

A

TRUE.

74
Q

Can a witness wait inside the courtroom?

A

No, unless:

  • They are a party;
  • they are an expert witness; or
  • the court directs otherwise
75
Q

Where must a witness give evidence?

A

The witness box, or wherever is designated for that purpose

76
Q

When can a witness’ address be announced?

A

Where it is relevant to an issue in the case.

77
Q

Can a legal adviser ask a witness questions?

A

Yes

78
Q

If the court admits the evidence of a witness in writing, what must be done?

A

The court must read the statement;

If any public member is present, each relevant part of the statement must be read or summarised aloud.

79
Q

Where a fact is admitted as evidence, must a written record be made of the admission?

A

Yes, unless the court directs otherwise.

80
Q

If the prosecutor is absent, can the court deal with the case as if they were present?

A

Yes, if the court has received evidence.

If they have not, the court may enquire into the reasons for absence and can exercise its power to dismiss the allegation.

81
Q

Where the defendant is absent, what is the general rule?

When does the general rule not apply?

A

Proceed as if they were present and pleaded not guilty. The court must give reasons if it does not do so.

It does not apply if D is under 18. The rule is subject to a summons/requisition being served on D within a reasonable time, and whether D had reasonable notice of when an adjourned hearing would continue.

82
Q

Where the defendant is absent, what powers must the court exercise?

A

Power to issue a warrant for arrest.

83
Q

What is a previous consistent statement?

A

Anything X has said previously that is consistent with what they say now.

84
Q

If a previous consistent statement is entered under s120(7) CJA, does it go towards consistency or truth of contents?

A

Truth of contents.

85
Q

When the judge is considering the question of whether a witness is hostile, the jury should always be excluded from the proceedings.

A

FALSE. Although the jury may be excluded for the formal application of whether the witness should be treated as hostile, there are often circumstances where the jury should be present, at least in part, so that they are able to judge the evidence and demeanour of the potentially hostile witness and should generally not be excluded entirely from all stages of the application (F6.49-51 BCP 2020) – Hopes [2011] EWCA Crim 1869, R v Khan [2003] Crim LR 428.

Criminal Litigation (18 decks)

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