Witnesses - preliminary issues

Question 1

Give four preliminary issues relating to witnesses

Answer 1

• competence
• compellability
• opinion evidence & experts
• privilege

Question 2

What is meant by competence of a witness?

Answer 2

Whether the witness is permitted to give evidence to the court
- a witness is competent if a person ‘may lawfully be called to testify’
- anyone is a competent witness

Question 2

Are there exceptions to the general rule of anyone being a competent witness?

Answer 2

Yes, there are a few instances where a witness, even if willing, is simply not competent to give evidence for one party or another

Question 3

Is the defendant competent to be a prosecution witness?

Answer 3

No
- where there are multiple defendants, none of them can be prosecution witnesses for the other
- the proceedings must be completed against any one of them so that they are no longer defendants in the case before they can be competent as witnesses for the prosecution

Question 4

Are defendants competent to give evidence on their own behalf, and competent to give evidence on behalf of a co-defendant?

Answer 4

Yes

Question 5

If age isn’t the determining factor of whether a child is competent - what is the test?

Answer 5

whether the child can
1) understand questions
2) give comprehensible answers

(the test is the same for those operating with a disorder/disability)

Question 6

Is a spouse/civil partner of a defendant competent to give evidence for any party of the case?

Answer 6

Yes

Question 7

Are deaf/speech impaired witnesses competent?

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

Can witnessed be compelled to give evidence?

Answer 8

Most can, but some can’t

Question 9

Can the defendant be compelled by the prosecution?

Answer 9

The defendant isn’t competent for the prosecution and so clearly can’t be compelled by the prosecution - the defendant may give evidence on D’s own behalf but can’t be compelled to do so.

Question 10

Are children and persons with a disorder/disability compellable?

Answer 10

If competent, then yes they’re compellable

Question 11

Are there special rules for diplomats, sovereigns and bankers

Answer 11

Yes but unlikely to be examined

Question 12

Can spouses and civil partners be compelled to give evidence for their spouse or civil partner (ie for the defence)?

Answer 12

Yes but only for the prosecution if the offence charged against their partner is…

a) assault on, or injury, or threat of injury to that spouse or partner (domestic violence)
b) assault on, or injury, or threat of injury, to a child under 15
c) a sexual offence against someone under the age of 16
d) attempts, conspiring, aiding and abetting any of the above

Question 13

Spouses/civil partners shouldn’t normally have to act against the interests of their partners, unless…

Answer 13

the partner is inflicting domestic violence or abusing children - at that point courts can require spouses to attend to give evidence even if they don’t want to

Question 14

If the court requires a spouse to attend to give evidence even if they don’t want to - if they refuse to attend, can they be arrested?

Answer 14

Yes - and if they refuse to answer qs they can be held in contempt

Question 15

Is there a general rule that witnesses are called upon only to be witnesses of fact?

Answer 15

Yes - analysis of those facts is argued by advocates, and it’s for the jury to ultimately decide on what inferences they draw & what conclusions they should come to from the actual evidence provided

Question 16

The courts will receive opinions from witnesses, but only if…

Answer 16

a) the opinion is given in relation to commonplace occurrences about which the witness’s perception appears relevant & proper

OR

b) if the witness is an expert

Question 17

Opinion evidence - there’s so many different types of opinion that might be given by a witness, that it’s not possible to have a list of matters that require (or don’t require) an expert

Question 18

Example of an admissible perception of a non-expert is an opinion as to drunkenness…

Answer 18

• many people involved in crime or who are witnesses to it have consumed alcohol
• a witness could give factual evidence to indicate that a relevant person’s speech was slurred, pupils were dilated, or was walking unsteadily
• in reality, witnesses would tend to simply say ‘the man was drunk’… this is strictly an opinion so would normally not be admissible

Question 19

Does the law restrict such a statement in court on the basis that it’s a way of expressing in summary the factual observations that the witness had made, and that the assessment of drunkenness is sufficiently commonplace a task that the witness’s perception would be received by the court?

Answer 19

No

Question 20

Is it better practice to focus questions in examination on the observable facts or only eliciting the opinion?

Answer 20

To focus questions in examination on the observable facts

Question 21

Permissible non-expert opinions…

Answer 21

• huge list
• many items on the list would be under the heading of ‘identification’ as witnesses tend to combine facts (eg the attacker wore a blue cardigan) with opinion based on observations (eg he was young & male)

Question 22

Are recognition of voice & handwriting examples of opinions which are acceptable or unacceptable?

Answer 22

Acceptable as having been derived from observed facts & represent an inference, the like of which is commonplace and will be received as admissible perceptions

Question 23

Issues which would require expertise include more technical matters of science, medicine, psychology etc..

Answer 23

Doctors who have tended to a victim’s injuries mat be tempted to give an opinion as to whether the injury presented could have been caused in the way that was described by the victim

Question 24

Does the law specify what level of expertise would be required before the court would receive such an opinion?

Answer 24

Yes occasionally

Question 25

example - the opinion as to the likely case of injury

Answer 25

• it’s clear that a doctor (not nurse) would be the only person with sufficient expertise to give such evidence
• it’s for the party seeking to rely on the expert evidence to establish that the expert has sufficient expertise

Question 26

Are witnesses that are deemed as experts treated differently to other witnesses?

Answer 26

Yes, slightly (they’re regarded more as independent consultants than partisan witnesses, and experts are asked to consider their role as being neutral & objective

Question 27

Where there are multiple experts in a case - are they encouraged to meet to establish the matters on which they agree/disagree and to narrow the issues between them & to explain the basis on which any disagreement is founded?

Answer 27

Yes

Question 28

Should experts always be clear in defining the boundaries of their expertise and to indicate id the questioning is straying into areas in which their expertise may be less clearly relevant?

Answer 28

Yes