Evidence Question

NUTLEY BOY

Can evidence given in a criminal trial be referred to on a retrial of the same charge ?

Scenario as follows ;

D is convicted.
D appeals conviction successfully.
Court of Appeal orders a retrial.
At the original trial witness A gives evidence.
At retrial A gives evidence contradictory to that which he gave at the first trial.

On cross examination can A be challenged with the contradictory evidence given at the first trial ? [Assume that there is no issue on the admissability at the first trial of any of A's evidence]

Eru

NUTLEY BOY wrote:

Can evidence given in a criminal trial be referred to on a retrial of the same charge ?

Scenario as follows ;

D is convicted.
D appeals conviction successfully.
Court of Appeal orders a retrial.
At the original trial witness A gives evidence.
At retrial A gives evidence contradictory to that which he gave at the first trial.

On cross examination can A be challenged with the contradictory evidence given at the first trial ? [Assume that there is no issue on the admissability at the first trial of any of A's evidence]

Im saying no based in the fact that the original trial has supposedly never happened. If his evidence can be challenged based on what was said in the first trial can the jury be informed of previous convictions and the original verdict?????

Mr Burns

Could witness A be charged with perjury in these circumstances?

Charlie

The witness could be deemed hostile.

Mr Burns

charlie mchugh wrote:

The witness could be deemed hostile.

On what basis?

Eru

charlie mchugh wrote:

The witness could be deemed hostile.

Again, on what grounds? Did you just throw that in for good measure???? There are no grounds to treat this witness as hostile plus hostile witnesses must be A, summoned and B, be vital to a serious prosecution.

rondeco

Karlitosway1978 wrote:

Im saying no based in the fact that the original trial has supposedly never happened. If his evidence can be challenged based on what was said in the first trial can the jury be informed of previous convictions and the original verdict?????

As far as I know, the defence is allowed to introduce this to the re-trial. The prosecutor cannot introduce it but can re-examine the situation when/if it is introduced.

Eru

rondeco wrote:

As far as I know, the defence is allowed to introduce this to the re-trial. The prosecutor cannot introduce it but can re-examine the situation when/if it is introduced.

But if the witness is a prosecutor witness the defence will have last go so to speak.

Also, does this allow the prosecution to introduce evidence form the first case thats not intended such as the accused testimony?

I know previous cannot be mentioned but what if it was mentioned the first time round?

EducatedGuess

Under the rules of evidence I dont think the witness would be deemed hostile, rondeco is right is certain circumstances the prosecuting counsel can introduce certain contradictory matters, only if not circumstantial and new evidence has come to light especially in the cases of expert witnesses. Under cross examination it depends whether the prosecuting or defence have 'last go'. In the case of retrial the balance always lies in the favour of the defence. After all its not the defences job to prove anything just disprove the prosecution.

mountainyman

EducatedGuess wrote:

After all its not the defences job to prove anything just disprove the prosecution.

The burden on the defense is only to indicate that the prosecution has not proved its case.

MM

rondeco

Karlitosway1978 wrote:

But if the witness is a prosecutor witness the defence will have last go so to speak.

Also, does this allow the prosecution to introduce evidence form the first case thats not intended such as the accused testimony?

I know previous cannot be mentioned but what if it was mentioned the first time round?

No, previous cannot be mentioned by the prosecution nor can the accused's testimony. The only time these can be introduced is if the defence introduces it. The prosecution is then allowed to examine this evidence but only if the defence introduces it.

I know what you're trying to say about the defence having 'last go' but think of it this way. State compiles the evidence and can only prosecute on that evidence that is in the book of evidence. The defence can introduce extra evidence outside of this such as accused testimony from a previous trial or previous convictions.