Evidence Flashcards
(90 cards)
1
Q
What is Evidence?
A
“Evidence” is the term for the whole body of material which a court or tribunal – ie in criminal cases the Judge or jury – may take into account in reaching their decision.
Evidence may be in oral, written or visual form.
2
Q
What is Admissible evidence?
A
Evidence is admissible if it is legally able to be received by a court.
3
Q
What is Relevance?
A
Evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding”
4
Q
What is Facts in issue?
A
Facts in issue are those which:
• the prosecution must prove to establish the elements of the offence, or
• the defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof.
5
Q
What are Exclusionary rules?
A
These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it).
6
Q
What is Weight of evidence?
A
The “weight” of evidence is its value in relation to the facts in issue. The value will depend on a wide range of factors, such as:
• the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
• the extent to which it is supported or contradicted by other evidence produced
• the veracity of the witness.
7
Q
What is giving an offering evidence?
A
“Giving evidence” is included in “offering evidence”: a witness “gives evidence”; a party “offers evidence”. A party who testifies both gives and offers evidence.
8
Q
How may evidence be given?
A
- in the ordinary way either orally in a courtroom in the presence of a judge (or judge and jury),
- in an alternative way – in the courtroom but unable to see the defendant or other person; outside the courtroom; or by video recording made before the hearing.
- in any other way provided for by the Evidence Act 2006 or any other relevant enactment.
9
Q
What is Incriminate?
A
To incriminate is to provide information that is reasonably likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.
10
Q
What is a Statement?
A
This is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter.
11
Q
What is Hearsay statement?
A
This is a statement that was made by a person other than a witness, and is offered in evidence in the proceeding to prove the truth of its contents.
12
Q
What is Veracity?
A
This is the disposition of a person to refrain from lying, whether generally or in a proceeding.
13
Q
What is Propensity?
A
Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved.
14
Q
What is Direct evidence?
A
This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced (e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife).
15
Q
What is Circumstantial evidence?
A
This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn
16
Q
What is the Woolmington Principle?
A
This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
17
Q
Exceptions of Woolmington Principle?
A
− the defence of insanity is claimed
− specific statutory exceptions exist
− the offence is a public welfare regulatory offence.
18
Q
Explain Discharging burden of proof?
A
In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”. Any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.
19
Q
How should Beyond Reasonable Doubt be described to a jury?
A
R v Wanhalla - an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence
20
Q
Presumption of evidence?
A
You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.
21
Q
Balance of Probabilities
A
it must simply show that it is more probable than not.
22
Q
Purpose of Evidence Law as outlined in s6 Evidence Act 2006
A
6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by—
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
23
Q
Two exceptions when no evidence needs to be given of facts because:
A
- judicial notice is taken
* the facts are formally admitted.
24
Q
What is Judicial Notice?
A
When a court takes judicial notice of a fact, it declares that it will find that the fact exists, or will direct the jury to do so even though evidence has not been established that the fact exists.
25
What is meant by Facts formally admitted
In a trial, the counsel for either party can accept that some evidence is accepted or proven at the outset, so it need not be discussed. Sections 9(2) and 9(3) of the Evidence Act 2006 provide that the defendant or the prosecution may admit any fact, and therefore dispense with proof of that fact.
26
R v Burrows
The party wishing to bring the evidence has the burden of showing the evidence is admissible. It is illogical to require the Crown to show admissibility beyond reasonable doubt because circumstantial facts do not have to be proved to that standard.
27
Three points when determining if evidence is admissible
* relevance
* reliability
* unfairness
28
Relevant evidence?
evidence that has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding
29
Reliable Evidence?
relevant evidence may sometimes be excluded - or if admitted may attract a judicial warning because it is regarded as unreliable
30
Two points when evidence would be seen unfair?
* Evidence may be excluded if it would result in some unfair prejudice in the proceeding.
* Evidence not prejudicial in itself in terms of the actual verdict may still be excluded where it has been obtained in circumstances that would make its admission against the defendant unfair.
31
What is the general exclusion provision?
The s8 test involves balancing the probative value of evidence against the risk that it will:
• have an “unfairly prejudicial effect on the proceeding” (s8(1)(a)), or
• “needlessly prolong the proceeding” (s8(1)(b)).
32
What is a voir dire?
Section 15 of the Evidence Act 2006 governs evidence given by a witness to prove the facts necessary for deciding whether some other evidence should be admitted in a proceeding. Such a hearing is commonly referred to as a “voir dire”, particularly where the jury is excluded from the courtroom for the duration of the admissibility hearing. Facts determined at a voir dire are sometimes referred to as “preliminary facts”.
33
What was held in R v Hart
the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.
34
What is character evidence?
- Veracity
| - Propensity
35
Substantial Helpfullness is not a sufficient test in two instances
* where the prosecution wish to offer evidence about a defendant’s veracity (s38), and
* where a defendant offers veracity evidence about a co-defendant (s39).
36
In order to be able to offer evidence of a defendant’s veracity:
* the prosecution must show that veracity is relevant – permission for the prosecution to offer evidence about the veracity of a defendant will only be granted if the defendant’s veracity is in issue.
* the defendant has offered evidence about his or her veracity (by testifying or questioning witnesses) or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue (the defendant must be responsible for the evidence – i.e. must have orchestrated it);
* the proposed evidence must meet the substantial helpfulness test.
* The prosecution must get permission from the judge to offer the evidence.
37
In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, the judge may take into account (s38(3)):
* the extent to which the defendant’s veracity, or the veracity of a prosecution witness, has been put in issue in the defendant’s evidence
* the time that has elapsed since any conviction about which the prosecution seeks to give evidence
* whether any evidence given by the defendant about veracity was elicited by the prosecution.
38
General rule of propensity evidence
The general position is that a party may offer propensity evidence about any person. This is, however, subject to some restrictions relating to propensity evidence about a defendant, and in sexual cases, propensity evidence about a complainant’s sexual experience,
39
Propensity evidence does not include
* evidence of an act or omission that is one of the elements of the offence for which the person is being tried
* evidence that is solely or mainly about veracity (which is governed by the veracity rules set out in s37).
40
Propensity evidence includes
* propensity as to actions
| * propensity as to state of mind (eg a lack of inhibition, a love of violence).
41
Section 41(1) allows propensity evidence about good character it also allows
* evidence of disreputable conduct about him or herself (something which a defendant may want to do for tactical reasons), or
* neutral propensity (eg evidence that the defendant attends an evening class every Tuesday and has attended without fail for the last term may provide an alibi – it displays a propensity that is neither good nor bad).
42
Requirements for admission of propensity evidence
a) constitute “propensity evidence”, that is evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which the appellant is alleged to have been involved;
b) have a probative value “in relation to an issue in dispute” and other matters that may be relevant, including those prescribed in s43(3); and
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
43
Does the defendant have to be convicted for an earlier wrong doing for it to be used as propensity?
No
44
What is a hearsay statement?
“a statement that –
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents”
45
Is a hearsay statement admissible?
Hearsay statements are not admissible except where there is provision for admissibility in the Evidence Act 2006 or any other Act; or where there is express provision that the hearsay rules do not apply (section 17 Evidence Act 2006).
46
What does section 18 of the Evidence state when Hearsay statements are admissible?
(1) A hearsay statement is admissible in any proceeding if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2) This section is subject to sections 20 and 22.
47
Two criteria for hearsay admissibility?
* reliability, and
| * unavailability, or that “undue expense or delay would be caused”.
48
What are the issues around reliability of a hearsay statement?
* where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
* the rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
* there is a danger that witnesses will make mistakes about the meaning or content of statements made by other people. The game of “Chinese Whispers”, where inaccuracies and mistakes are created through the repetition of a phrase amongst a group of people, is illustrative of this point.
49
What are the circumstances that a witness is unavailable?
the person—
(a) is dead; or
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.
50
What is a business record?
• to comply with a duty or in the course a of business, and as a record or part of a record of that business,
• from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied.
This definition includes a statement made to a police officer and written down in his or her notebook or job sheets.
51
What is the rule with an opinion statement?
Section 23 states that opinions are not admissible to prove the truth of what is believed or inferred.
52
In order to be admissible under s24, the statement of opinion must fulfil two basic criteria:
* opinion must be the only way in which to effectively communicate the information to the finder of fact,
* the witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.
53
If the evidence is opinion evidence, then in order to comply with s25, the opinion must
* be that of an “expert”
* comprise “expert evidence”, and
* offer substantial help to the fact-finder in understanding other evidence or ascertaining any fact in the proceeding.
54
What is an expert?
Section 4 of the Act defines an “expert” as “a person who has specialised knowledge or skill based on training, study or experience”.
55
When should notice provision around hearsay evidence be done?
admissibility decisions should be made pre trial
56
When is a witness eligible?
A witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence. A witness is compellable if they can be required to give evidence against their will for both prosecution and defence. Once a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.
57
What is an associated defendant?
An “associated defendant” is someone against whom a prosecution has been initiated for an offence arising out of the “same events” as the offence for which the defendant is being tried (s73(4)(a)), or “that relates to, or is connected with,” the offence for which the defendant is being tried (s73(4)(b)).
58
What is a privilege in relation to giving evidence?
the right to refuse to disclose or to prevent disclosure of what would otherwise be admissible. Privileged evidence can arise from the contents of the evidence, the class of the evidence, or because of the nature of a particular relationship.
59
Types of privileges
* communications with legal advisors – section 54
* solicitors’ trust accounts – section 55
* preparatory materials for proceedings – section 56
* settlement negotiations or mediation – section 57
* communications with ministers of religion – section 58
* information obtained by medical practitioners and clinical psychologists – section 59.
60
What are five important points of communication with legal advisers?
1. The communication must be intended to be confidential.
2. The communication must be made for the purposes of obtaining or giving legal services.
3. The privilege is vested in the person seeking or receiving the legal services.
4. The privilege does not extend to communications made for any dishonest purpose, or to enable or aid anyone to commit or plan to commit an offence.
5. Provided that it was intended that the communication be confidential, the fact that the conversation was inadvertently overheard by others does not necessarily abrogate the privilege, even if no precautions to preserve confidentiality were taken
61
What are Preparatory materials for proceedings?
1. The privilege applies to a communication or information made, received, compiled, or prepared for the primary purpose of preparing for a proceeding or an apprehended proceeding.
2. A person has a privilege if they are, or on reasonable grounds contemplate becoming, a party to the proceeding or apprehended proceeding.
3. The privilege can be in respect of:
• a communication between the party and any other person
• a communication between the party’s legal adviser and any other person
• information compiled or prepared by the party or the party’s legal adviser
• information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person.
4. Communications will still be protected if they were actually undertaken by an “authorised representative” of the privilege holder or his or her legal adviser.
5. Documents which are in themselves not privileged become so when “compiled”. This is because the compilation may disclose tactics planned for the litigation.
62
What is Corroboration?
“Corroboration” is not defined in the Act. It is independent evidence that tends to confirm or support some fact of which other evidence is given and implicates the defendant in the crime charged.
63
Two types of offences where corroboration is required
1. Perjury
| 2. Treason
64
Judge warning jury of uncorroborated evidence
Under s122, if the judge is of the opinion that uncorroborated evidence may be unreliable, he or she may warn the jury of the need for caution, notwithstanding the general provision in s121(2). This would not necessarily take the form of the warning envisaged under s121(2)(a) and (b), but could do so.
65
Corroboration with child complainant
Section 125(1) prohibits a corroboration warning in cases involving child complainants where the warning would not have been given had the complainant been an adult.
66
Judges role in jury trial
* decide all questions concerning the admissibility of evidence
* explain and enforce the general principles of law applying to the point at issue
* instruct the jury on the rules of law by which the evidence is to be weighed once it has been submitted.
67
Two types of conduct of criminal trials
adversarial” or “accusatorial” system of justice
68
Witnesses under 12 must?
* be informed by the judge of the importance of telling the truth and not telling lies, and
* after being given that information, make a promise to tell the truth, before giving evidence.
69
Sequence of jury trial
1. After the jury has been empanelled and a foreperson selected, the judge commences the trial with some brief opening instructions, which cover such things as the role of the jury, the mechanics of jury service, the need to keep an open mind during the trial, the burden and standard of proof etc.
2. The Crown then makes an opening address, in which the prosecutor will provide a detailed explanation of the charge or charges, reiterate the burden and standard of proof, and summarise the case against the defendant and the evidence that the Crown proposes to call.
3. Following the Crown opening, the case for the Crown is then presented. Each prosecution witness is called and questioned by the prosecutor (“evidence in chief”); the defence has the opportunity to question and challenge the testimony of each witness (“cross-examination”); and, if required, the prosecution may follow that by further questioning of the witness to clarify or qualify any matter which was raised during the cross-examination (“re-examination”). The judge may ask a witness any question that, in the judge’s opinion, is required in the interests of justice (s100 Evidence Act 2006).
4. If the defence intends to call evidence, it will open its case at the conclusion of the Crown case by making an opening address to the jury. In some cases, this simply consists of general statements about the role and task of the jury and the burden of proof. In others, it goes further and provides an outline of the evidence that is to be called and its relationship to the Crown case.
5. The defence then presents its case by calling its witnesses, who are subject to the process of evidence in chief, cross-examination and re-examination as set out above.
6. The Crown then concludes by making a closing address to the jury. This is intended to summarise the case for the prosecution; no new information may be introduced or new issue raised during the closing address.
7. Following the Crown closing, the defence makes a closing address to the jury. Again, this is for the purpose only of summarising the defence case.
8. Finally, the judge sums up to the jury before it retires to consider its verdict.
70
Types of trials
judge alone trials but with the ability for election of trial by jury for Category 3 offences (punishable by two years’ imprisonment or more); and Category 4 offences, which a limited list of offences in schedule 1 of the Act that are tried by a High Court jury unless a judge alone trial is ordered in long and complex cases/ cases involving issues of juror intimidation).
71
What is a view
A “view” is an inspection of a place or thing that is not in the courtroom (for example, an inspection of a scene or building where the alleged offending took place). The judge decides whether or not a view should be held. If a view is held, all parties and their lawyers are entitled to attend.
72
Restrictions on comment on defendants right to silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.
73
Evidence in chief purpose
The purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.
74
What is a leading question?
The Evidence Act 2006 defines a leading question as one that directly or indirectly suggests a particular answer to the question (s4).
75
Why leading questions are likely to produce unreliable evidence?
* There is a natural tendency for people to agree with suggestions put to them by saying “yes”, even if those suggestions do not precisely accord with their own view of what happened.
* Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the spontaneity and genuineness of the testimony.
* There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.
76
When leading questions are permitted
(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the Judge, in exercise of the Judge’s discretion, allows the question.
77
When may a judge permit leading questions in respect to s89(1)(c)
* To direct the witness’s attention to the subject of identification evidence (for example, “Was that the car you saw?”).
* In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue, provided that the answer to the central question is not suggested in the question.
* To assist counsel in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence. If allowed, the judge must ensure that the questions are genuinely necessary to elicit reliable evidence. It may be that allowing evidence to be given in an alternative way or providing a support person are better ways of addressing the problems of eliciting evidence from young or vulnerable witnesses.
* Where the witness has been declared hostile.
78
If a witness wishes to consult a document while giving evidence, the following conditions, designed to ensure so far as possible the accuracy of the document, must be satisfied:
* the leave of the judge must be obtained
* the document must be shown to every other party in the proceeding
* s90(5) requires the document to have been “made or adopted” by a witness “at a time when his or her memory was fresh”. Whether a document was made while the memory was fresh depends on the circumstances of the individual case. In Cameron v R30, the Court stated that there is a non-exhaustive set of factors that can be considered, including the significance of the events to the witness; the time elapsed between the events and the making or adoption of the document; evidence from the witness about the freshness of their memory; and the detail and lucidity of the recollection recorded in the document.
79
Previous consistent statements admissible?
No,
admissible if the statement—
(a) responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
(b) forms an integral part of the events before the court; or
(c) consists of the mere fact that a complaint has been made in a criminal case
80
What are hostile witnesses
Hostile Witness is defined in section 4 of the Evidence Act 2006. In relation to a witness, means the witness
• exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
• gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
• refuses to answer questions or deliberately withholds evidence.
81
Purposes of cross examination
* to elicit information supporting the case of the party conducting the cross-examination
* to challenge the accuracy of the testimony given in evidence-in-chief (for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony).
82
What is the duty to put the case
Whenever a party is intending to call evidence that will contradict the evidence in chief of a witness called by an opposing party, there is an obligation to put that contradictory material to the witness during cross-examination, so that he or she has an opportunity to comment on or explain it.
83
If party fails to cross exam witness before giving contradicting evidence the judge may
(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or
(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
(c) exclude the contradictory evidence; or
(d) make any other order that the Judge considers just.
84
Unacceptable questions
In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.
85
Limits on re examination
After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross-examination, but may not be questioned on any other matter, except with the permission of the judge.
86
Evidence during rebuttal
Such leave may be given to the prosecution if the further evidence:
• relates to a purely formal matter
• relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)
• was not available or admissible before the prosecution’s case was closed, or
• is required to be admitted in the interests of justice for any other reason.
Evidence in rebuttal may be permissible up to the time when the jury retires
87
Times Judicial warning may be given to jury about evidence
* judicial warning that evidence may be unreliable – s122
* judicial directions about certain ways of giving evidence – s123
* judicial warnings about lies – s124
* judicial directions about children’s evidence – s125
* judicial warnings about identification evidence – s126
* delayed complaints or failure to complain in sexual cases – s127.
88
When judge warns jury of lies they should
* the jury needs to be satisfied that the defendant did lie before they use the evidence,
* people lie for various reasons, and
* the jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.
89
O/C case responsibilities with witnesses
* Advise witnesses of the time, date, and place of the trial, and the exhibits to be presented at the trial.
* Check whether they have given evidence before. If not, advise them of the procedure. For example, where they are to stand, that they should speak slowly and clearly, tell the truth, and say, “I do not know“ rather than guess an answer.
* Advise witnesses that if they have made a written statement, they may read it to refresh their memory before giving evidence. However, they cannot read other documents, such as the job sheets or briefs.
* Ensure witnesses remain within call if they are excluded from the courtroom.
* Check the jury list to make sure that none of the jurors are known to the witnesses.
* Warn the witnesses that they are not to mix with or speak to jurors.
* Advise the witnesses about witness expenses.
90
Referring to notebook
* Ask the court’s permission.
* Introduce the material properly – for example, by saying, “I interviewed the defendant and wrote the answers in my notebook at the time”.
* Remember that the defence and the jury are entitled to view your notes, so seal off other entries.
* Remember that you are only allowed to refresh your memory – you cannot read the whole entry unless you have permission to read the notes of the interview.
