Evidence - admissibility of Qs
Could anyone provide me some help on the admissibility of such questioning in a trial????
Norman has been charged with raping Olive, whom he met at a nightclub in London.The prosecution has alleged that Norman gave Olive a lift to his home, where he raped her on the sofa. During the examination-in-chief, Olive testified that she was raped whilst a CD of Beethoven's 5th Symphony was being played on Norman's CD player.
The following issues have arisen following Olive's examination-in-chief.
(1)The defence wish to cross-examine Olive as to a diary which contains the names of fifty men, whom the defence allege are sexual clients of Olive;
(2)the prosecution wish to call another witness, Polly, who will testify that she met Norman in a pub in London, was driven back to Norman's home and allegedly indecently assaulted by Norman whilst a CD of Bizet's opera "Carmen" was being played;
(3)the prosecution wish to cross-examine Norman on two previous convictions he has for kerb-crawling.
Advise on the admissibility of such questioning in each case.
- peterchan7708Lv 71 decade agoFavorite Answer
1. The defence can cross examine PW1 on her previous sexual experiences if the defence counsel is running a line of defence that she consented to the intercourse and that she was a promiscuous person who had a lot of one-night-stand experiences before.
However the defence cannot cross examine her on the contents of the diary. A list of contacts and telephone numbers does not mean that they are her sexual clients and that they had sex with her before. If the defence wants to say that the people in her diary are her clients then the defence would have to call each of the persons in the diary to testify as a witness in court.
Also the defence cannot run a line of defence that she is a prostitute and that she must have agreed to have intercourse because she is a prostitute. The law of rape states that if the woman does not consent, or the man at that time of intercourse knows that she does not consent to the intercourse or he is reckless as to whether she consents to it, then it is rape. Whether the woman is a prostitute is not a matter of concern. She can have sex with 1000 men and on the 1001st occasion if she does not consent, then it is still rape.
2. this is inadmissible. D1’s previous alleged criminal activity has no relevance to the present case, especially so because it was only an allegation.
3. the prosecution can only disclose D1’s previous criminal convictions upon agreement by the accused. So unless the defence agrees, the prosecution cannot unilaterally disclose D1’s criminal records.
2009-12-30 13:21:46 補充：
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