LEV3701 Terms in this set (47) Probative value means value for purposes of proof. This means not only, "what will the hearsay evidence prove if admitted?", but "will it do so reliably?" Admission An admission can be defined as - a statement

LEV3701 Terms in this set (47) Probative value means value for purposes of proof. This means not only, "what will the hearsay evidence prove if admitted?", but "will it do so reliably?" Admission An admission can be defined as - a statement - or conduct - adverse to the person from whom it emanates Law of evidence that field of law which generally regulates the proof of facts in a court of law Proof proof of a fact means that the court has received probative material with regard to such fact and has accepted such fact as being the truth for purposes of the specific case Evidence consists of oral statements made in court under oath or affirmation or warning (oral evidence). Also includes documents (documentary evidence) and objects (real evidence) produced and received in court Residuary sections - remainder, rest, that which is left - a section in a SA statute which incorporates a part of foreign law into our law, and thereby preserves something of the foreign law. 6 requirements that should be met before a witness will be allowed to refresh her memory while in the witness box - witness must have personal knowledge of the events recorded - witness must be unable to recollect fully a matter on which she is being examined - witness must have recorded the information personally - the record must have been made while the facts were still fresh in the memory of the witness - the original document must be used where the witness has no independent recollection of the incident - a document used to refresh the memory while the witness is in the witness box must be made available to the court and the opposing legal team so that they can inspect it. Why would a witness need to have personal knowledge of the recorded event to avoid inadvertent admission of hearsay evidence Requirements related to the origins of a doc which a witness wishes to consult to refresh her memory - generally, witness must have made the recording personally. 2 exceptions 1) where the witness has given instructions for the recording to take place, in which the original recorder must also testify 2) where the witness has read the record and accepted its accuracy, in which event the LEV3701 When is it not compulsory to use the original document where the opponent fails to object, or where it can be shown that the original has been lost or destroyed. How should a witness deal with any privilege that she may have on information in the document A privileged doc gives the holder of that privilege 2 options 1) She may waive the privilege (and use the doc) 2) She may claim the privilege (but then she cannot use the doc) Purpose of cross examination 1) to elicit evidence that supports the cross examiners case 2) to case doubt on the credibility of the opposing party's witness Re-examination - undertaken by the party who had called the witness - leading questions are not permissible - confined to matters arising from cross examination How can the state call someone who had previously been a co-accused to testify - by withdrawing the charge against the co-accused - by finding the co-accused not guilty - by the co-accused entering a plea of guilty - if the trials of the accused and co-accused are separated for some other valid reason 4 circumstances in which secondary evidence of a document will be permitted - there is evidence that the original has been destroyed or cannot be located after a diligent search - production of the original would be illegal - production of the original is impossible - the original is in possession of the opposing party or a third party, who refuses to produce it or who cannot be compelled to produce it A document may be authenticated by the following perosna 1. The author, executor or signatory of the doc 2. A witness 3. A person who can identify the handwriting or signature 4. A person who found a document in the possession or control of an opponent 5. A person who has lawful control and custody of a document Definition of a data message a data message means data generated, sent, received or stored by electronic means and includes voice (where the voice is used in an automated transaction) and a stored record. Test for relevance as stated in R v Mapanza 1915 Any facts are so relevant if from their existence inferences may properly be drawn as to the existence of the fact in issue The initial part of S197 CPA, protects an accused against answering certain questions. Name the four categories of questions for which protection is granted. a) that the accused has committed an offence other than the one he is charged with b) that the accused has been convicted of an offence other than the one he is charged with c) that the accused has been charged with an offence other than the one he is currently charged with d) that the accused is of bad character What is the general rule regarding evidence of an accused's previous convictions? it is inadmissible What does section 211 state about the cross examination of the accused the accused may not be asked whether he has previously been convicted What is the relationship between section 211 and the rule against the admissibility of similar fact evidence - section 211 deals with any previous conviction - in the case of similar fact evidence, the previous conviction has to be similar to the current one. - in the latter event, the principles governing the admissibility of similar fact evidence will take precedence over section 211, owing to the operation of section 252 of the CPA, which applies the law that was in force on 30 May 1961 Two pieces of evidence about a complaint made soon after an alleged offence of a sexual nature are admissible even if this evidence is about a previous consistent statement. These are: 1. evidence that such a complaint was made 2. evidence about the contents of the complaint Factors on which the court should base its discretion - nature of the proceedings - nature of the evidence - purpose for which the evidence is tendered - the probative value of the evidence - the reasons why the evidence is not given by the person upon whose credibility its probative value depends - any prejudice to opponents - any other factor which, in the opinion of the court, should be taken into account Cite 6 examples of instances where a court may allow the evidence of a layperson - approximate age of a person - state of sobriety of a person - the general condition of something - the approximate speed at which a vehicle was travelling - a summary of factual data perceived by him (eg "angry") - the identity of handwriting Should a court allow unchallenged opinion evidence given by a layperson the court may allow the unchallenged opinion of a lay person, subject to the following provisos: - What requirements should be complied with before a copy of an official doc can be produced in court - copy must be certified a true copy or extract by the head of Department in control or custody of the doc, or any office authorized to do so. - the copy can then be handed in to the court by anybody If the original doc has to be produced in criminal proceedings, what requirement should be complied with, before this may be possible - an original official doc may be produced only upon an order by the Attorney General (DPP) Requirements for the admissibility of confessions confessions have to be made 1. freely and voluntarily 2. by a person in his sound and sober senses 3. without being unduly influenced thereto *there is an additional requirement in the case of a confession made to a peace officer: 4. if the confession is made to a peace officer who is not a justice of the peace or a magistrate, it has to be confirmed and reduced to writing in the presence of a magistrate or justice of the peace. Definition of justice - a person who is a justice of the peace under the provisions of the Justices of the Peace and Commissioners of Oaths Act 1963 - it could be someone in SAPS with the rank of lieutenant, captain, major, colonel and brigadier. Definition of peace officer - includes any magistrate, justice, police official, member of the prisons service and any person who is a peace officer under section 334 Rights of arrested person - to be informed, in an understandable language, that he has the right to remain silent and about the consequences of making a statement - not to be compelled to make a confession or admission which could be used in evidence against him or her Rights of accused person - to be informed of the charge with sufficient detail to answer it - to be presumed innocent, to remain silent during the plea proceedings as well as during the trial, and not to testify during the trial - to adduce and challenge evidence and not to be a compellable witness against himself Competence of a co-accused as a prosecution witness - A co-accused is not a competent witness for the state, whether to prove the case against himself or against the accused, because he is also an accused. - Maybe circumstances where the state may call someone, who was previously a co- accused to testify. - this happens when the person is no longer a co-accused in that case. - it can happen in one of the following ways 1. by withdrawing the charge against the co-accused 2. by finding the co-accused not guilty 3. by the co-accused entering a plea of guilty 4. if the trials of the accused and his co-accused are separated for some other valid reason Two pieces of evidence about a complaint made soon after an alleged offence of a sexual nature are admissible, even if this evidence is about a previous consistent statement. these are: 1. evidence that such a complaint was made (serves to support the credibilty of the complainant) 2. evidence about the contents of the complaint (indicates that the evidence tendered has not been recently fabricated and will support the consistency and therefore credibility of the complainant) Admissibility of Pointing out - It was decided in the Seema case and confirmed in the January case, that a pointing out is essentially a communication by means of conduct and therefore a declaration by the person performing the pointing out that she knows something about the facts in issue. - If this statement is to the disadvantage of the person doing the pointing out, it will constitute an extra judicial admission. - the rule regarding the admissibility of pointing out made by the accused is the same as in the case of any admission, namely that it will be admissible only if the pointing out was done freely and voluntarily. Admissibility of hearsay evidence - inadmissible (coz unreliable), unless it falls within one of the exceptions to this rule exceptions - consent - if the other party testifies - if the court exercises a discretion and allows hearsay - common law exceptions - statutory exceptions Hearsay - means evidence, whether oral or in writing, the probative value of which depends on the credibility of any person other than the person giving such evidence Circumstantial evidence - provides indirect evidence and then inferences have to be drawn about the prohibited act - eg fingerprint evidence, DNA tests Admissibility of circumstantial evidence - evaluation of a case based on circumstantial evidence, depends on the presiding officers ability to think logically. - the court should consider the cumulative effect of all the circumstantial evidence presented in the case. - if inferences can be drawn from c.e in a criminal case, two cardinal rules of logic apply 1. the inferences sought to be drawn must be consistent with all the proven facts 2. the proven facts should be such that they exclude every reasonable inference except the one sought to be drawn LEV3701 Admissibility of documentary evidence - main requirements that should be met before a doc can be used as evidence are, generally speaking, that a doc will be admissible only in the following circumstances 1. if the original document is produced in court 2. if the document is proved to be authentic Definition of documentary evidence - evidence presented by way of a document - includes everything that contains the written or pictorial proof of something corroboration - evidential material that independently confirms other (untrustworthy) evidential material and which is admissible cautionary rule - a rule of practice bearing the mandatory character of a legal rule - and prescribing a specific approach to be adopted by the court - to assist in the evaluation of cetain evidence Requirements for corrobotation - corroborative evidence must be admissible - may take on a variety of forms - should consist of independent evidence - should confirm the evidence S v Masuku 1969 - caution is imperative when dealing with accomplice evidence - an accomplice is a witness who has a possible motive for telling lies about an innocent accused - corroboration of the accomplice's testimony is required, even where the accused is not implicated and the accomplice merely gives details of the crime - the cautionary rule will be satisfied only if there is corroboration which directly implicates the accused in the commission of the offence - such corroboration may be found in the evidence of another accomplice, provided that his evidence is reliable - where no corroboration is available, there must be some other assurance that the evidence of the accomplice is reliable - such assurance is self evident where the accused is a lying witness or where the accused does not testify - the risk of false incrimination is reduced where the accomplice is a friend of accused Specifc instances where the cautionary rule applies - accomplice - single witness - children - cases of a sexual nature - police traps and private detectives