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Lecture

Objections

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Trial Process & Objections Duties in Examination in Chief & Cross-exam Examination in Chief ← to obtain testimony in support of the version of the facts in issue which the party calling the witness contends Duties during cross examination  Leading questions—can & should be asked: McClure v Mitchell  On Counsel—not to pursue irrelevant/fruitless lines of cross examination: Wakeley & Bartling  On Judge—not to restrict unduly the latitude of defence counsel‘s argument: Wakeley & Bartling (possession of heroin—defence in cross-exam sought to establish that one of other officers at raid died of heroin shortly afterwards—denied by TJ as only to credit of police  duty on counsel to confine cross exam | duty on judge not to unduly restrict) Objections Leading questions Leading Questions are questions which— Mooney v James  suggest the desired answer, or  assume the existence of a fact in dispute General Rule Counsel may not ask leading questions to their own witnesses (examination in chief | re- examination) Exceptions  Formal introductory matters (name, address, occupation)  Matter not in dispute (eg where and when the accident occurred)  Purpose of identification of exhibits: Mooney v James (is that the knife you found beside the body?)  To get a witness quickly to a matter that is in dispute (you were standing on the corner before the accident)  Assisting memory where the witness‘s memory has failed on a particular topic o only used at end if witness has given as much detail as possible previously—in court‘s discretion  In examining an expert witness  In examining witnesses who have been declared hostile Objectives of cross-examination  to obtain evidence to support own case  To qualify, weaken or destroy evidence in chief  Where necessary, to attack the credit of the witness (however this is not easily achieved) Nonspecific / Too General  eg. ―What happened on 1 January‖ Confusing, Misleading, Ambiguous, Vague, Unintelligible = Not sufficiently specific when talking about a string of events  eg. Who was at the meeting? When there are three or four meetings in issue  eg. What was he doing? Where it is ambiguous as to who ‗he‘ is Compound / Duplicitous = contains two or more questions such that answer will not make sense Argumentative = not legitimately seeking information, just seeking to provoke witness Content of Question Repetitive = repeating the same or similar question Calling for a conclusion = asking to draw inferences from statements of fact  This role is for the tribunal of fact, not the witness Calling for an opinion which witness is not qualified to give = asking a non-expert witness to give an expert opinion  Normal witness can give evidence on things within their perception  To give an opinion about something the witness must first be established as an expert  eg. Do you think he was insane? to a non-expert witness Speculative = Witness could not know the answer by perception through their 5 senses  eg. Could the man in the alley see you? Unfounded attacks on credit Non-compliance with the rule in Browne v Dunn = Contradicting evidence-in-chief of a witness without putting alternative to witness in cross- examination  Examples of non-compliance— o Leading evidence to contradict the witness after their testimony o asking the jury to draw an alternative inference  Witness must be given chance to explain inconsistency  To comply with rule, must— (Nicholls v R) o put the particulars of the contradicting evidence to the witness and o explain how it will be proved Improper use of an Prior Inconsistent Statement Before entering a PIS must prove—  It is relevant to the facts in issue  The witness does not distinctly admit making it (= admit making it & maintain its contents are true) Breach of s20 Queensland Evidence Act  Question will be disallowed if it only is relevant to matters of credit and the answer to the question would not materially impair confidence in the reliability of the evidence given by the witness Breach s21 Queensland Evidence Act  Question is an improper question –
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