Evidence Flashcards by Mark Buckley

What is evidence?

The whole body of material a court may take into account in reaching their decision

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Rules of evidence - 3 categories (HWT)

HOW evidence may be given.
WHO may give evidence.
TYPE of material that may be given in evidence.

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What is Relevant evidence?

Evidence that has a tendency to prove or disprove anything of consequence to the determination of a proceeding

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Sec.7 Evidence Act 2006
All relevant evidence is admissible except evidence that is?

*Inadmissible
*Excluded
*Not relevant

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What is prejudicial evidence?

Evidence adverse to a party’s case; jury may give it more weight than it deserves

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Ways of Giving evidence

*Ordinary way - orally in court, or by consent, or reading a written statement if agreed upon by prosecution &defence
*Alternative way - in court but unable to be seen by defendant, including AVL
*any other way

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Definition of a witness

Person who gives evidence and is able to be cross-examined

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Definition of child complainant and child witness

Complainant/witness U/18 years when charges filed

Note - does not include defendant who is a child

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Definition of veracity

Person’s disposition to refrain from lying

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Sec.8 General Exclusion:
A judge must exclude evidence if?

Its probative value is outwieghed by the risk the evidence will
*have an unfairly prejudicial effect on the proceeding
*needlessly prolong the proceeding

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What is the Sec.8 General Exclusion test regarding evidence?

Balancing the probative value of evidence against the risk it will
*have an unfairly prejudicial effect on the proceeding
*needlessly prolong the proceeding

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Definition of Admissible Evidence

Evidence that is legally able to be received by a court

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What is the Woolmington Priciple?

The Burden of Proof lies with the prosecution in relation to all the elements of the offence

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Definition of Beyond Reasonable Doubt

A very high standard of proof

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Definition of Balance of Probabilities

More probable than not

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If the defence suggest an explanation for the defendant’s actions, such as acting in self-defence, what is this known as?

Evidential Burden, on the defence.

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The conduct of criminal trials follows what systems of justice?

Adversarial or Accusatorial

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What ages must take an oath or affirmation before giving evidence?

Witnesses 12 years or older

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If a witness is under 12 years old, what must a judge do before they give evidence?

Inform them of the importance of telling the truth and not lies; and
make a promise to tell the truth

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Definition of a hostile witness?

*Witness who exhibits a lack of veracity
*Gives evidence inconsistent with their statement with intention to be unhelpful
*Refuses to answer, or deliberately withholds evidence

When is Initial Disclosure made?

within 15 working days after start of proceedings

Initial Disclosure is limited to what documents?

*SOF
*Charging document
*Maximum penalty for offence
*Previous convictions (QHA)
*Previous Youth history
*Summary of defendant’s right to apply for further info

When should Full Disclosure be made?

As soon as practicable after:
- defendant has pleaded not guilty
- CYP, first appearance in Youth Court

Sec.103 EA 2006
Grounds for evidence being given an alternative way by witness

*age/maturity
*physical, intellectual impairment
*trauma
*fear
*linguistic, cultural, religious background
*nature of proceeding
*relationship to defendant
*absence from NZ

Definition of Propensity

A person's tendency to act in a particular way, or have a particular state of mind

Definition of Circumstantial Evidence

Evidence of circumstances that don't directly prove a fact in issue, but allow inferences to be drawn

Definition of hearsay?

A statement made by a person other than a witness (second hand)

Define Facts in Issue

Facts which the prosecution must prove to establish the elements of the offence

Define Weight of Evidence

Evidence's value in relation to the facts in issue

Define Probative Value

How strongly evidence points to the inference it is said to support

Define Prejudicial

Evidence adverse to a party's case - jury may give it more weight than it deserves

Define Direct Evidence

Evidence by a witness as to a fact in issue (e.g. witness who states they saw the defendant stab the victim with a knife)

What is a statement?

*A spoken or written assertion by a person; or *Non-verbal conduct of a person, intended as an assertion

Why is hearsay evidence generally not admissible?

The maker of the statement is not able to be cross-examined and its reliability determined (e.g.Chinese whispers)

Sec.18 What are the exceptions to the general admissibility of a hearsay statement?

*Reliability (of the statement) *Unavailability (maker of statement) *Undue expense or delay (if maker of statement required to be a witness)

What is a business record?

*A document/record of that business; and *From info supplied directly/indirectly by a person who court reasonably supposed had personal knowledge of the matters dealt with in the info supplied

What is Visual Identification evidence?

*An assertion based wholly/partly on what the person saw; or *An account (written/oral) of an assertion

Under Sec.122 what must a judge consider?

Uncorroborated evidence such as hearsay may be unreliable. Judge must consider whether to warn jury about the need for caution

Sec.121 Uncorroborated Evidence

Except for Perjury, False Oaths/Statements and Treason there is no requirement for a judge to give a warning about uncorroborated evidence

Refreshment of memory in court (whilst giving evidence)

*Leave of judge must be obtained *Document must be shown to every other party *Document must have been made by witness when memory was fresh

Refreshment of memory out of court (before giving evidence)

*Defence should be advised *If requested, copy of statement made available

Explain the difference between communication assistance for a defendant and a witness in a trial

*Defendant entitled to enable understanding of entire proceeding *Witness entitled to allow them to give evidence only

Sec.103 Grounds for witness evidence to be given in alternative way

*age/maturity *physical/intellectual impairment *trauma suffered *fear of intimidation *linguistic/cultural background *nature of proceeding *nature of witness evidence *absent from NZ

Sec.73 When is a co-defendant (associated) compellable to give evidence against a defendant?

*Tried separately from the defendant *Proceeding against co-defendant has been determined

Examples of privilege (communications with...)

*Legal advisors *Religious ministers *Self-incrimination *Informers (CHIS) *Solicitors' trust accounts *Info obtained by psychologists

Sec.41 Propensity evidence offered by the defence of a defendant's good character allows for what response from the prosecution?

Rebuttal evidence (with judge's permission) - to prevent judge or jury forming the wrong impression about the defendant's character

Sec.44 (Propensity) Evidence of complainant's sexual experience in sexual cases

Only allowed with permission of the judge

Sec.45 Visual Identification This section applies to any person? True or false?

False. This only applies to persons alleged to have committed and offence.

Sec.46 Voice Identification. The prosecution must prove this beyond reasonable doubt or on the balance of probabilities?

Balance of probabilities - i.e., that it is probably reliable (more probable than not)