Witnesses - Revision history

IBJadmin: /* Three important capacities for a witness */

2012-07-19T09:43:49Z

Three important capacities for a witness

← Older revision		Revision as of 11:43, 19 July 2012
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	# Who ''must'' give evidence? This question relates to '''compellability'''.		# Who ''must'' give evidence? This question relates to '''compellability'''.

	=Three ~~important capacities~~ for a ~~witness~~=		=Three Important Capacities for a Witness=
	* '''Perception'''		* '''Perception'''

IBJadmin: /* Three Important Capacities for a Witness */

2012-07-19T09:43:36Z

Three Important Capacities for a Witness

← Older revision		Revision as of 11:43, 19 July 2012
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	Communication refers to the ability to understand questions and to respond to them in an intelligible fashion.		Communication refers to the ability to understand questions and to respond to them in an intelligible fashion.

	Every person has a right to everyone else's evidence and a general duty to give what evidence he is capable of giving. Exemptions are exceptional.		Every person has a right to everyone else's evidence and a general duty to give what evidence he is capable of giving. Exemptions are exceptional.

	=Requirement of Oath or Affirmation=		=Requirement of Oath or Affirmation=

IBJadmin at 09:36, 19 July 2012

2012-07-19T09:36:57Z

← Older revision		Revision as of 11:36, 19 July 2012
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	See also [[Competency to Testify \| Competency to Testify]].		See also [[Competency to Testify \| Competency to Testify]].

	=~~Compellability~~ to ~~testify~~=		=Compelling a Witness to Testify=

	Anyone who is may be compelled to testify through the use of a subpoena.		Anyone who is may be compelled to testify through the use of a subpoena.

IBJadmin at 09:36, 19 July 2012

2012-07-19T09:36:17Z

← Older revision		Revision as of 11:36, 19 July 2012
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	* '''Perception'''		* '''Perception'''

	Perception entails ~~not only~~ an ability to perceive events as they occur~~, but also~~ an ability to differentiate between that which is actually perceived and that which the person may have imagined, been told by others, or otherwise have come to believe.		Perception entails an ability to perceive events as they occur and an ability to differentiate between that which is actually perceived and that which the person may have imagined, been told by others, or otherwise have come to believe.

	* '''Recollection'''		* '''Recollection'''
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	=Testimonial Competence=		=Testimonial Competence=
	The law supports the testimony of anyone deemed competent because it is in the interest of the principle of fundamental justice. However, there are several exceptions to this principle, for spouses, ~~issues of cometence for~~ minors or mentally disabled. A ~~convition~~ will not ~~make~~ a witness ~~incompetent~~ but may ~~go to~~ weight. At common law, anyone with an interest in the outcome ~~will cause evidence to~~ be ~~excluded as incompetent~~ because of perjury concerns. ~~This~~ is ~~now eradicated~~ in many jurisdictions ~~and it is now a matter of common sense and can~~ be determined in cross examination ~~going to credibility~~.		The law supports the testimony of anyone deemed competent because it is in the interest of the principle of fundamental justice. However, there are several exceptions to this principle for spouses, minors or the mentally disabled. A prior conviction will not automatically discount a witness' testimony, but it may carry weight in deciding whether he is competent. At common law, anyone with an interest in the outcome may be prevented from being a witness because of perjury concerns. However, this rule is no longer in effect in many jurisdictions. Rather, witness credibility will be determined in the cross examination.
	See also [[Competency to Testify \| Competency to Testify]]		See also [[Competency to Testify \| Competency to Testify]].

	=Compellability to testify=		=Compellability to testify=

	Anyone who is ~~competent is compellable~~ to testify~~, with~~ a subpoena.		Anyone who is may be compelled to testify through the use of a subpoena.

	There are some '''exceptions''':		There are some '''exceptions''':

	* The accused is ~~not compellable. He shall be~~ protected against self-incrimination and has the right to silence.		* The accused is protected against self-incrimination and has the right to silence.

	* Spouses are ~~not compellable,~~ to protect the marriage ~~(e.g.: pillow talk)~~.		* Spouses are protected from testifying against each other to protect the marriage.

	* ~~Diplomatic immunity~~		* Attorney-client privilege: a lawyer cannot be compelled to testify about privileged information received from a client.

	* ~~Monarch~~		* Co-accused: cannot be compelled to testify against one another. Note that this can be an incentive for the prosecution to sever co-accused and try each in separate trials.

	* Lawyer-~~client privilege~~: ~~A lawyer~~ cannot be ~~held in contempt for not disclosing the information received from a client or third party~~.

	* Co-accused - note that this ~~is sometimes~~ an incentive for the prosecution to sever co-accused and try each in separate trials.

	=Failures to Testify=		=Failures to Testify=
	* The ~~accused~~		* The Accused
	The court should not comment on or read into the failure of the accused to testify. This ~~is to~~ protect the accused's right of privilege against self-incrimination. No adverse ~~interference~~ should be drawn (although in some jurisdictions, appellate courts ~~will~~ draw an adverse ~~interference)~~. If the accused ~~tesfifies~~, the prosecution ~~should~~ not ask if the accused has a criminal record.		The court should not comment on or read into the failure of the accused to testify. This protect the accused's right of privilege against self-incrimination. No adverse inferences should be drawn, although in some jurisdictions, appellate courts do draw adverse inferences. If the accused testifies, the prosecution may not ask if the accused has a criminal record.

	* Witness Privileges		* Witness Privileges
	'''Marital communications''': ~~Any~~ witness that is a spouse, even though competent and compellable by ~~both~~ the ~~defence and the Crown~~ still ~~have a privilege as~~ a right to refuse questions regarding ~~(only)~~ marital communications.		'''Marital communications''': any witness that is a spouse, even though competent and compellable by the defense, still has a right to refuse questions regarding marital communications.

	'''~~Lawyer~~-Client ~~privilege~~''': A lawyer may be a competent and compellable witness~~. But~~ lawyer-client communication is privileged information and a lawyer ~~can refuse (or~~ must refuse) to testify ~~regarding~~ what a client has told them. Note that priests and doctors have confidence rules too, but in general, these do not extend to the witness box.		'''Attorney-Client Privilege''': a lawyer may be a competent and compellable witness, but lawyer-client communication is privileged information and a lawyer must refuse to testify about what a client has told them. Note that priests and doctors have confidence rules too, but in general, these do not extend to the witness box.

	'''Non ~~self~~-~~incrimination~~''': ~~There~~ is a common law privilege against self-incrimination. Some jurisdictions have specific ~~privilege~~ against self-incrimination, while others ~~(like~~ Canada~~) forces~~ individuals who choose to take the stand to answer, but the answer ~~is not admissible~~ in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt (except in perjury trials).		'''Non Self-Incrimination''': there is a common law privilege against self-incrimination. Some jurisdictions have a specific right against self-incrimination, while others, such as Canada, force individuals who choose to take the stand to answer, but make the answer inadmissible in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt except in perjury trials.

	----		----
	See [[Evidence]], [[Competency to Testify]], [[Examination of Witnesses]]		See [[Evidence]], [[Competency to Testify]], [[Examination of Witnesses]].

IBJadmin at 15:08, 18 July 2012

2012-07-18T15:08:58Z

← Older revision		Revision as of 17:08, 18 July 2012
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	Two questions must be asked before acknowledging someone as a witness:		Two questions must be asked before acknowledging someone as a witness:
	# Who can give evidence? This question relates to '''competence'''		# Who ''can'' give evidence? This question relates to '''competence'''.
	# Who must give evidence? This question relates to '''compellability'''		# Who ''must'' give evidence? This question relates to '''compellability'''.

	=Three important capacities for a witness=		=Three important capacities for a witness=
	* '''Perception'''		* '''Perception'''

	~~Capacity to perceive~~ entails not only an ability to perceive events as they occur, but also an ability to differentiate between that which is actually perceived and that which the person may have imagined, been told by others, or otherwise have come to believe.		Perception entails not only an ability to perceive events as they occur, but also an ability to differentiate between that which is actually perceived and that which the person may have imagined, been told by others, or otherwise have come to believe.

	* '''Recollection'''		* '''Recollection'''

	~~Capacity to remember~~ refers to the person' capacity to ~~maintain a recollection of~~ his/her actual perceptions of a prior event, and the ability to distinguish those retained perceptions from information provided to the persons from other sources, such as statements made to person by others.		Recollection refers to the person' capacity to remember his/her actual perceptions of a prior event, and the ability to distinguish those retained perceptions from information provided to the persons from other sources, such as statements made to person by others.

	* '''Communication'''		* '''Communication'''

	~~Capacity to communicate~~ refers to the ability to understand questions and to respond to them in an intelligible fashion.		Communication refers to the ability to understand questions and to respond to them in an intelligible fashion.

	~~The public~~ has ~~the~~ right to everyone's evidence and ~~has~~ a general duty to give what evidence ~~one~~ is capable of giving ~~and exemptions~~ are exceptional.		Every person has a right to everyone else's evidence and a general duty to give what evidence he is capable of giving. Exemptions are exceptional.

	=Requirement of Oath or Affirmation=		=Requirement of Oath or Affirmation=
	Traditionally, it is a promise to one's god, to invite the deity to observe ~~their~~ testimony in court and punish ~~them if they lie~~.		Traditionally, it is a promise to one's god to invite the deity to observe testimony in court and punish one who lies.

	In modern secular age, it is common to have people make a solemn affirmation to tell the whole truth and nothing but the truth (secular affirmation).		In this modern secular age, it is common to have people make a solemn affirmation to tell the whole truth and nothing but the truth (secular affirmation) rather than making a promise to a deity.

	=Testimonial Competence=		=Testimonial Competence=

IBJadmin at 08:19, 10 July 2012

2012-07-10T08:19:05Z

← Older revision		Revision as of 10:19, 10 July 2012
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	----		----
	See [[Evidence]] [[Competency to Testify]] [[Examination of Witnesses]]		See [[Evidence]], [[Competency to Testify]], [[Examination of Witnesses]]

IBJadmin at 08:18, 10 July 2012

2012-07-10T08:18:44Z

← Older revision		Revision as of 10:18, 10 July 2012
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	'''Non self-incrimination''': There is a common law privilege against self-incrimination. Some jurisdictions have specific privilege against self-incrimination, while others (like Canada) forces individuals who choose to take the stand to answer, but the answer is not admissible in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt (except in perjury trials).		'''Non self-incrimination''': There is a common law privilege against self-incrimination. Some jurisdictions have specific privilege against self-incrimination, while others (like Canada) forces individuals who choose to take the stand to answer, but the answer is not admissible in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt (except in perjury trials).

			----
			See [[Evidence]] [[Competency to Testify]] [[Examination of Witnesses]]

IBJadmin: /* Failures to Testify */

2012-07-03T14:50:57Z

Failures to Testify

← Older revision		Revision as of 16:50, 3 July 2012
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	* Witness Privileges		* Witness Privileges
	**Marital communications: Any witness that is a spouse, even though competent and compellable by both the defence and the Crown still have a privilege as a right to refuse questions regarding (only) marital communications.		'''Marital communications''': Any witness that is a spouse, even though competent and compellable by both the defence and the Crown still have a privilege as a right to refuse questions regarding (only) marital communications.

	**Lawyer-Client privilege: A lawyer may be a competent and compellable witness. But lawyer-client communication is privileged information and a lawyer can refuse (or must refuse) to testify regarding what a client has told them.		'''Lawyer-Client privilege''': A lawyer may be a competent and compellable witness. But lawyer-client communication is privileged information and a lawyer can refuse (or must refuse) to testify regarding what a client has told them. Note that priests and doctors have confidence rules too, but in general, these do not extend to the witness box.

	~~Note that priests and doctors have confidence rules too, but in general, these do not extend to the witness box.~~		'''Non self-incrimination''': There is a common law privilege against self-incrimination. Some jurisdictions have specific privilege against self-incrimination, while others (like Canada) forces individuals who choose to take the stand to answer, but the answer is not admissible in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt (except in perjury trials).

	**Non self-incrimination: There is a common law privilege against self-incrimination. Some jurisdictions have specific privilege against self-incrimination, while others (like Canada) forces individuals who choose to take the stand to answer, but the answer is not admissible in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt (except in perjury trials).

IBJadmin: /* Compellability to testify */

2012-07-03T14:48:54Z

Compellability to testify

← Older revision		Revision as of 16:48, 3 July 2012
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	* Co-accused - note that this is sometimes an incentive for the prosecution to sever co-accused and try each in separate trials.		* Co-accused - note that this is sometimes an incentive for the prosecution to sever co-accused and try each in separate trials.

			=Failures to Testify=
			* The accused
			The court should not comment on or read into the failure of the accused to testify. This is to protect the accused's right of privilege against self-incrimination. No adverse interference should be drawn (although in some jurisdictions, appellate courts will draw an adverse interference). If the accused tesfifies, the prosecution should not ask if the accused has a criminal record.

			* Witness Privileges
			**Marital communications: Any witness that is a spouse, even though competent and compellable by both the defence and the Crown still have a privilege as a right to refuse questions regarding (only) marital communications.

			**Lawyer-Client privilege: A lawyer may be a competent and compellable witness. But lawyer-client communication is privileged information and a lawyer can refuse (or must refuse) to testify regarding what a client has told them.

			Note that priests and doctors have confidence rules too, but in general, these do not extend to the witness box.

			**Non self-incrimination: There is a common law privilege against self-incrimination. Some jurisdictions have specific privilege against self-incrimination, while others (like Canada) forces individuals who choose to take the stand to answer, but the answer is not admissible in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt (except in perjury trials).

IBJadmin: /* Compellability */

2012-07-03T14:39:26Z

Compellability

← Older revision		Revision as of 16:39, 3 July 2012
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	See also [[Competency to Testify \| Competency to Testify]]		See also [[Competency to Testify \| Competency to Testify]]

	=Compellability=		=Compellability to testify=

			Anyone who is competent is compellable to testify, with a subpoena.

			There are some '''exceptions''':

			* The accused is not compellable. He shall be protected against self-incrimination and has the right to silence.

			* Spouses are not compellable, to protect the marriage (e.g.: pillow talk).

			* Diplomatic immunity

			* Monarch

			* Lawyer-client privilege: A lawyer cannot be held in contempt for not disclosing the information received from a client or third party.

			* Co-accused - note that this is sometimes an incentive for the prosecution to sever co-accused and try each in separate trials.