Evidence Flashcards
Who generally bears the legal burden on any fact in issue in a civil trial?
The party who is asserting a fact. He who asserts must prove, not he who denies
A builder alleges breach of contract because he says he has not been paid for building work. Who holds the burden of proof? What must be prove?
The builder must prove:
i) That a contract existed
ii) That he has not been paid
Can parties fix who holds the legal burden on a certain issue by the express terms of a contract?
Yes
What is the standard of proof in civil cases?
The balance of probabilities. More probable than not.
The balance of probabilities does not apply in which scenarios?
- Contempt of Court
- Where a person’s liberty is at stake
- Where statute demands the criminal standard.
What is the general rule at common law regarding the competence and compellability of witnesses?
All witnesses are competent and all competent witnesses are compellable
Can a child give evidence?
- Children can give evidence if they understand the nature of the oath that they swear to tell the truth
- Children who do not understand the nature of the oath can give evidence if they understand that it is their duty to tell the truth – though this evidence may be unsworn.
Can unsworn witnesses give evidence in civil evidence?
No, unless an exception applies
What are two exceptions to the rule that unsworn witnesses cannot give evidence in civil proceedings?
- If the case is on the small claims track the Court does not require evidence on oath (CPR 27.8
- Children may give unsworn evidence as long as they know their duty to tell the truth (s96 Children Act 1989)
What must a witness statement include for a witness statement to be relied upon?
A statement of truth
What form should a witness statement take?
Written in the first person expressing the witness’ experiences in their own words
What should be done when adducing hearsay evidence in a witness statement?
- Notice is given by serving the witness statement
- The hearsay and maker of the hearsay statement must be identified
- If the witness is not attending trial the party intending to rely on the hearsay evidence must, when serving the witness statement, informing the other party of this and give reasons for not calling the witness
When does exchange of witness statements take place on the small claims track?
On the small claims track the parties must file and serve all documents on which they wish to rely at the hearing at least 14 days before the hearing.
When will the Court make an order regarding when witness statements are to be exchanged on the fast and multi track?
The Court will make an order on the fast and multi-track regarding when witness statements are to be exchanged when directions are made allocating a case to a track or at a case management conference.
How are witness statements ordinarily exchanged?
Witness statements are normally mutually exchanged (IE simultaneously) but the Court may make a different order (CPR 32.4(3)).
What happens if a witness statement is served late?
If a witness statement s served late then the party who wishes to rely on it cannot do so unless the Court gives permission (CPR 32.10)
A party who serves a witness statement and wishes to rely on it at trial must call the witness unless what two exceptions are met?
An order has been made under CPR 32.2(2)(b) that the witness statement is to be read
The statement is put in as hearsay evidence pursuant to CPR 32.5(1)
What is the use of a witness statement at trial?
Exchanged witness statements will ordinarily stand as a witnesses examination in chief.
On what basis should a witness be cross examined?
A witness may be cross examined on any part of their witness statement
Can a witness statement be relied upon by other parties? How?
If a party serves a witness statement and then decides not to rely on the statement, another party can introduce the witness statement as hearsay evidence.
Can a party introduce in evidence a witness statement that contradicts their case or that they say is untrue?
No. There is a general rule that you cannot impeach your own witnesses.
Inspection of witness statements- can the public ask to see them?
Witness statements that stand as evidence of examination in chief are open to the public during the course of the trial, unless the Judge rules otherwise CPR 32.13