Examination of a Witness Flashcards
(32 cards)
What is the general rule that witnesses must do before giving evidence?
Take an oath or make an affirmation
What is the exception to the oath / affirmation rule for witnesses?
Case of children or those of unsound mind
What is the test for children and those with unsound mind?
Do they have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath?
What is the importance of oath cards?
Not necessarily the wording / religion, but where it would find ‘binding on one’s conscience.’
What is the form of questioning that examination in chief should adopt?
Non-leading questions
What are the three ways in which an out of court written witness statement may be used in court?
1) May be read out if contents are agreed
2) Witness can ask to ‘refresh their memory’ from statement
3) In cross-examination on a previous inconsistent statement
When could a witness read their statement outside of witness box?
If, for example, dyslexic, can be read in a quiet room
What is a hostile witness?
If witness called to give evidence but then gives an account inconsistent with their original statement damaging to the party calling them
What is the view of a judge on a hostile witness?
Not serious of telling the truth
What could one side do if their witness turns hostile?
Can put their previous statement to them and cross examine
Does repeating a statement from out of court make a witness more reliable?
It does not automatically
What witness evidence does court focus most on?
Witness evidence said in court, rather than out of court
In which 4 situations can an earlier statement of a witness be used rather than what is said in court?
1) Res gestae
2) Suspect’s response to police allegation
3) Complaints
4) Recent fabrication
What is res gestae?
A statement made at time of the event (type of admissible hearsay)
What is suspect’s response to police allegation?
If suspected reacted in a way that is relevant (i.e. stayed silent when expected to respond)
What is the doctrine of complaints?
If witness made a complaint soon after the incident – admissible where complainant testifies that earlier complaint was made and true
What is recent fabrication?
If witness new evidence accused of making up story, their earlier statement can be used to show they were consistent
What type of questions can lawyers ask in cross-examination?
Leading questions
What is a legal rule if a lawyer does not challenge something that a witness says?
The court assumes they accept it as true
What must a lawyer do if they disagree with a witness?
Must confront them about it during questioning
Why must a lawyer confront if they disagree with a witness?
To ensure fairness – witness must be given chance to respond to challenges
Should witnesses be encouraged to give opinions?
No – unless on about everyday matters such as giving opinion that someone was drunk
Do courts generally accept police witness statements as evidence?
Typically not, as they are hearsay
When could a previous statement be used against a witness?
If a witness gives live evidence that significantly differs from original statement
