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7.2 Trial and Hearsay - Coggle Diagram

- - - - Exception 2 - Children and persons with a disorder/disability:
        
        Age is not the determining factor of whether a child is competent
        
        Only way to test is whether a child can -
        
        (1) understand questions
        
        (2) can give comprehensible answers
        
        The test is the same for those operating with a disorder or disability
      - Exception 3 - Spouse/civil partner
        
        A spouse or civil partner of a D is competent to give evidence for any party in the case
      - Exception 4 - Deaf or speech impaired witness
        
        These witnesses are competent 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
      - Exception 1 - The D/accused:
        
        D is not competent to be a prosecution witness.
        
        Where there are multiple Ds, none of them can be prosecution witnesses for the other
        
        The proceedings must be concluded against. D before they may be competent as a prosecution witness
        
        Ds are of course competent to give evidence, on their own behalf, and are competent ot give evidence on behalf of a co-D
  - - - The Defendant:
        
        The D is not competent for the prosecution and so clearly cannot be compelled by the prosecution
        
        The D may give evidence on D's own behalf, but cannot be compelled to do so
        
        Children and persons with a disorder/disability:
        
        If competent, these witnesses are compellable
      - Spouses/civil partners:
        
        Spouses and civil partners can be compelled to give evidence for their spouses/civil partner (i.e. for the defence) but only for the prosecution if the offence charged against their partner (S.80 PACE)
        
        a) Assault on injury to, or threat of injury to that spouse or partner. This includes
        
        b) Assault on injury to, or threat of injury, to a child under 16
        
        c) A sexual offence against someone under the age of 16
        
        d) Attempts, conspiring, aiding and abetting any of the above
        
        The logic is clear, spouses and civil partners should not normally have to act against the interests of their partners, and this is generally accepted unless the partner is inflicting domestic violence or abusing children
        
        ATP, the courts can require spouses to attend to give evidence if they do not want to do so
        
        If they refuse to attend, they can be arrested, and if they refuse to answer questions they can be held in contempt
  - - - Opinion evidence:
        
        There's so many different types of opinion that might be given by a witness, that is not possible to have a list of matters that require (or don't require) an expert
        
        But the law does not restrict such a statement in court because that is a way of expressing in summary the factual observations that the witness had made, and that the assessment of drunkenness is sufficient commonplace a task that the witness's perception would be received by court
        
        There's a huge list of other non-expert opinions, which would be under the heading of 'identification' as witnesses tend to combine facts (e.g. 'the attacker wore a blue cardigan') with opinion based on observations (e.g. 'he was young and male')
        
        cont:
        
        Similarly recognition of voice and handwriting are examples of opinions which are acceptable as having been derived from observed facts and represent an inference
        
        This is common and will be received as admissible perceptions
      - Expert evidence:
        
        Issues that would require expertise include more technical matters (science/medicine/psychology)
        
        Law requires level of expertise needed before the court would receive such an opinion (e.g. only as to the likely cause of injury) only a doctor can give sufficient expertise to give such evidence
        
        Expertise can be acquired through course of study or practical experience (or combination of both). It's for a party seeking to reply on expert evidence to establish that the expert has sufficient expertise
        
        Witnesses deemed as experts are treated as independent consultants than partisan witnesses, and experts are asked to consider their role as being neutral and objective
        
        If there are multiple experts in a case, they must meet and establish matters they agree/disagree + narrow down issues + explain basis which disagreement is founded
        
        cont:
        
        Experts must always be clear in defining the boundaries of their expertise and indicate if questioning strays into areas where expertise is less relevant
        
        For good practice, advocate should not ask expert to give opinion directly on the 'final' issue in the case
        
        e.g. question for jury is on dangerous driving.
        
        Don't ask ('is it your opinion that D caused this death by dangerous driving?').
        
        Ask about the component parts of the driving would better (giving an opinion as to the speed of the car by reference to skid marks)
        
        Jury would then conclude the final question for itself
        
        Jury is not obliged to accept expert evidence even if its not contradicted. Judge has to decide how to sum the case up to the jury and if there's other evidence that tends to a conclusion other than from the expert, jury is still empowered to prefer the alternative conclusion
        
        Only in cases where expert's opinion and all other evidence leads inevitably to only 1 conclusion should the jury be directed to accept the opinion as correct
  - - - Against self-incrimination:
        
        General principle:
        
        Courts will uphold a witness's right (we're talking about witnesses other than the D) to refuse to answer questions/disclose documents that would make the person liable to incriminate themselves
        
        A D's (i.e. someone 'charged in criminal proceedings') right to refuse to answer questions was removed from the common law by the Criminal Evidence Act 1898 and is now governed by the rules on 'adverse inferences'
        
        If a person claims privilege against self-incrimination to protect information, person cannot prevent the same information being acquired by other routes
        
        Privilege only extends to that person and any other investigatory body is allowed to consider how else to access the info
        
        Legal professional privilege:
        
        This privilege exists when a client communicates with a lawyer. There's 2 sub-divisions and are whether:
        
        (i) the purpose of the communication with a lawyer is to advance or act in a process of litigation (litigation privilege); or
        
        (ii) to obtain advice more generally (advice privilege)
        
        All direct communication between lawyer and client is privileged, but there's a difference between 3rd parties
        If 3rd party communication is generated during or in contemplation of litigation, privilege will likely attract.
        
        But if there's no more litigation involved, documents supplied lawyer from a 3rd party for more general advice is usually not protected by privileged
        
        Privilege can be waived either explicitly or by conduct and as a rule a person cannot waive privilege partially. Only a person entitled to claim privilege is the right of the client rather than the law firm
- - - - The court usher should have to hand a number of oath cards to cover all main religions
        
        Ultimate issue is not whether the words on the card perfectly match the variant of the religion that the witness might adhere to but instead to assess if the oath is one that the witness would find 'binding on one's conscience'
        
        Refusal to take an oath or affirmation can be punished as an contempt of court
  - - - A witness does not have to read their statement in the witness box where it would be undesirable (eg. a dyslexic witness may wish to withdraw to a quiet room to do so)
        
        When a witness refreshes their memory they may be cross-examined on the contents of the statement used to refresh their memory without the statement coming into evidence
        
        Where material other than that which the witness used to refresh their memory is raised in question, it allows the other side to apply to put the statement into evidence so the jury can from their own view about the basis for cross-examination
    - - Res gestae
        
        A statement made as an immediate reaction to a crime committed against the statement maker (res gestae)
        
        If a victim of a crime reacts instantaneously or in the immediate heat of the incident, that reaction is admissible
        
        this is because the 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 accident
        
        e.g.
        
        if someone suddenly jumps up and shouts out on the tube 'what are your hands doing there you pervert!?', that would seem to be an immediate response to a potential sexual assault, and would be admissible. This would be admissible to prove the truth of the (implied) allegation.
      - Suspect's response to a police allegation:
        
        Statements made by suspects on accusation by the police
        
        The police (as a matter of course) will 'accuse' all suspects of an offence when they arrest, interview and charge a suspect
        
        Responses to all police allegations are admissible, whether they are confessional or involve self-serving denials of guilt
        
        Only difference is the use to which they are put. If a suspect wholly denies an offence to the police, may be useful to the jury to assess overall conduct of the defence, and consistency of D's denials
        
        It cannot go further and prove the truth of the denials
      - Complaints:
        
        Doctrine of Recent Complaint per CJA 2003:
        
        The quicker that someone complains about an allegation, the more likely the complaint is to be reliable
        
        Complaints are admissible when the complainant testifies that the earlier complaint was made and was true
      - Rebuttal of 'recent fabrication' allegation
        
        if a witness is challenged in the box, and its suggested that something that the witness has just said has only just been made up, then the witness is permitted to try other prove that this is not the case
        
        The witness is therefore allowed to negate the allegation of 'recent fabrication' by showing that earlier statement was made to the same effect as the statement impugned as being a recent fabrication
        
        Court must consider S.20 CJA 2003 in deciding whether there is a earlier complaint that can rebut the allegation of recent fabrication
  - - - Witness should generally only deal in facts
        
        Witnesses should not be encouraged to give opinions unless they are on very 'everyday' matters such as giving opinion that someone is drunk
    - - cont:
        
        Party using statement in cross-examination can refer to the fact that original statement was made much closer to the incident and it is signed and sworn statement (as in live evidence)
        
        Given how easily memory fades + how easy witness get flustered and make mistakes, its normal for inconsistencies to happen between evidence in the box and evidence in the statement
        
        Minor discrepancies should be expected and won't normally lead to an advocate picking them up and cross-examining upon them, but more major changes in an account can provide valuable insights into credibility of the witness
    - - Finality on collateral matters:
        
        The rule of finality to collateral matters prevents trials from splintering into multiple insignificant disputes regarding credibility related matters collateral to the issues in the case
        
        Hence you must ask:
        
        (1) what is relevant
        
        (2) to have passed the necessary bad character hurdles
        
        Defence would be prohibited from adducing evidence of the mortgage application because matters was collateral to main issues and the answer "no" was final in the eyes of the law
        
        Courts are more lenient in allowing evidence to be admitted on the 'collateral' issue of a witness being 'biased or partial' and even when a witness denies it, counter-evidence will be admissible