Witnesses at Trial

Question 1

What is the competence of a witness?

Answer 1

Whether the witness is permitted to give evidence to the court

(A witness is competent if a person ‘may lawfully be called to testify’)

Question 2

Is the defendant/accused a competent witness for the prosecution?

Answer 2

No

Question 3

What is the case where there are multiple defendants and them being competent witnesses for the prosecution?

Answer 3

None of them can be prosecution witnesses for the other unless proceeding are completed against one of them

Question 4

Who can the defendant and co-defendant’s be competent witnesses for?

Answer 4

Themselves or co-defendants

Question 5

What is the test for children and persons with a disorder or disability being competent witnesses?

Answer 5

• age alone is not the determining factor

Test:

(1) whether they can understand questions AND

(2) can give comprehensible answers

Question 6

Can spouses/civil partner be competent witnesses for either party?

Answer 6

Yes - competent witness for either party.

Question 7

Can deaf or speech impaired witnesses be competent witnesses?

Answer 7

Yes so long as they understand the solemnity of taking the oath or affirmation. They can give evidence using interpreters, handwriting, sign language or any combination of these

Question 8

Is the defendant a compellable witness to either side?

Answer 8

No - cannot be compelled by either side to give evidence

Question 9

Are children or persons with a disorder or disability compellable witnesses?

Answer 9

If they are competent then they are compellable

Question 10

Spouses and civil partners cannot normally be compelled by the prosecution to give evidence against their partner. What four exceptions are there to this rule?

Answer 10

They can be compelled where their partner is compelled with:

• assault on, or injury or threat of injury to that spouse or partner (ie domestic violence)
• assault on or injury or threat of injury to a child under 16
• a sexual offence against someone under the age of 16
• attempts, conspiring, aiding and abetting any of the above

Question 11

Can a spouse or civil partner be compelled to give evidence for their spouse or partner’s defence?

Answer 11

Yes

Question 12

What happens if someone is compelled to be a witness but fails to turn up/fails to answer questions?

Answer 12

• if they refuse to attend, they can be arrested
• if they refuse to answer questions they can be held in contempt of court

Question 13

Witness are generally only there to be witnesses of facts. When can witnesses can opinions to the court?

Answer 13

• they can give their opinion in relation to commonplace occurrences about which the witness’s perception appears relevant and proper or
• if the witness is an expert

Question 14

What are examples of opinion evidence that is admissible from a lay person?

Answer 14

• drunkenness
• opinions on identification - tall old etc
• recognition of voice and handwriting

Question 15

What sort of things would require expert evidence?

Answer 15

Technical matters of science, medicine, psychology etc

Question 16

How can expertise be acquired?

Answer 16

Through a course of study or practical experience

Question 17

Who has the burden of establishing that an expert has sufficient expertise?

Answer 17

The party seeking to rely on the expert evidence

Question 18

Are experts partisan?

Answer 18

No their role is to be neutral and objective - primary duty to the court

Question 19

What should be done if there are multiple experts on a case?

Answer 19

• They should meet to establish matters they agree and disagree on
• narrow the issues between them and to explain the basis on which any disagreement is founded

Question 20

Is a jury obliged to accept expert evidence, even if it is not contradicted?

Answer 20

No

Question 21

What should the judge do if expert opinion and all other evidence leads inevitably to only one conclusion?

Answer 21

The judge should direct the jury to accept the opinion as correct

Question 22

What is the right against self-incrimination for all witnesses other than the defendant?

Answer 22

Witness can refuse to answer questions or disclose documents if to do so would be self-incriminating

Question 23

What are the limits on the privilege of witness not to self-incriminate?

Answer 23

• privilege protects only them and no one else
• protects against criminal not civil liability
• does not prevent the privileged information being obtained by other routes

Question 24

What are the two forms of legal advice privilege?

Answer 24

• litigation privilege - purpose of communication with a lawyer is to advance or act in a process of litigation
• advice privilege - to obtain advice more generally

Question 25

When will third party communication be protected by litigation privilege?

Answer 25

If it is generated during or in contemplation of litigation but not if no litigation is involved

Question 26

How can legal privilege be waived?

Answer 26

By conduct or explicitly by client

Question 27

What must witnesses do in court before giving evidence?

Answer 27

They must either give an oath or make an affirmation

Question 28

When might unsworn evidence be received by the court?

Answer 28

When evidence is given by children and those of unsound mind

Question 29

What is the test for children and those with unsound mind for taking an oath?

Answer 29

Whether they have sufficient appreciation of the solemnity of the occasion and of particular responsibility to tell the truth which is involved in taking the oath

Question 30

What is the principle regarding oaths?

Answer 30

Oath should be one that the witness would find binding on their conscience

Question 31

What happens if a witness refuses to take an oath or affirmation?

Answer 31

They can be punished for contempt of court

Question 32

What form should questioning not take?

Answer 32

Questioning should not be leading

Question 33

If questioning is leading, what is the consequence for any evidence obtained?

Answer 33

It may be considered inadmissible or carry less weight

Question 34

When may leading questions be used?

Answer 34

May be allowed on issues not in dispute or where the witness has been deemed hostile

Question 35

What are the three ways in which an out of court written statement may be used in court?

Answer 35

a) statement may be read out if contents of statement are agreed. Jury will be directed to value statement as if given as oral evidence in court b) can be used to refresh witnesses memory c) in cross-examination on a previous inconsistent statement

Question 36

What limits are there on witness using a witness statement to refresh their memory?

Answer 36

- permissible where the earlier written account provides a significantly better recollection than could be achieved without it - evidence given in court should be as a result of a recovered memory rather than just witness reading out statement

Question 37

What happens if a witness is called to give evidence and gives an account inconsistent with their original statement to the point the judge forms the view that the witness is not desirous or telling the truth?

Answer 37

- the party calling that witness may apply to the judge to treat them as hostile - that party is then free to cross examine them and put their previous statement to them as truth of the matter

Question 38

Is an inconsistent statement presentment to a witness to prove the truth of its content not inadmissible due to hearsay?

Answer 38

No admissible notwithstanding that it is hearsay as the witness contradicted it in evidence

Question 39

What are the four exceptions whereby the court will hear evidence of an earlier consistent complaint or statement?

Answer 39

- res gestate - suspect's response to police allegation - complaints - recent fabrications

Question 40

What is res gestate? And why is it admissible?

Answer 40

Statement made by victim as an immediate reaction and is admissible Admissible because person would not have had any time to conjure up a false response if you only look at what was said in the immediate aftermath of an incident

Question 41

What is the rule in relation to complaints and how can they be used?

Answer 41

Common law principle that the quicker someone complains about an allegation, the more likely the complain is to be reliable CJA 2003 - complaints admissible where complainant testifies that the earlier complaint was made and was true Can show consistency in complaining and prove truth of complaint

Question 42

How can previous consistent statements be used in relation to recent fabrications?

Answer 42

Witness can negate allegation of recent fabrication by showing earlier consistent statement

Question 43

What is the effect of a witness's account not being challenged on a particular point?

Answer 43

Point is deemed to have been tacitly accepted Rule applies to both factual challenges and imputations on the witness's character (which must be done to their face)

Question 44

When will police witness statements be admissible even though they are hearsay? What can it be used to show?

Answer 44

When a witness in the box materially departs from that statement, either by contradicting it or adding new information Can highlight that statement was given nearer the time and signed and sworn Can highlight credibility of witness

Question 45

When may barristers upset a witness?

Answer 45

Where is serves a clear and useful purposes Never just for the sake of it

Question 46

What must be obtained to ask victim's of sexual offences about their promiscuity or other sexual behaviour?

Answer 46

Leave of court

Question 47

What is the rule of finality of collateral matters?

Answer 47

Witnesses responses to questions on collateral matter are to be accepted and not further challenged to prevent trials from splintering into multiple insignificant disputes abut credibility related matters collateral to the issues in the case

Question 48

What evidence is likely to be allowed to be admitted in relation to collateral issues?

Answer 48

Evidence in relation to witness being biased or partial. If a witness denies this, then counter-evidence is admissible

Question 49

What happens if matters are raised in cross-examination which could not reasonably have been covered in examination in chief?

Answer 49

Party calling the witness may ask further questions after the cross-examination (re-examination)