How to refuse to be a witness

[chas49]

And then there are different ways of answering questions, that may increase or decrease the "reasonable doubt" that, if present, must lead to an acquittal of the defendant. For example:

Q: "Did you see Sally leave the scene of the crime?"
A1: "Yes, I recognised Sally instantly and clearly"
A2: "It could have been Sally but it was dark and raining, and I did not have my glasses with me"

If answer 1 was the truth, then IMHO answer 2 would be prevaricating and an offence under the section previously quoted. If the witness has already said to the police "I saw Sally get out of the car", then giving answer 2 would be pretty risky.

[Bobreno]

so the house was adjacent to the scene, the winess saw the person go into the house. And this counts as "leaving the scene" ?

WTF?

No the witness went back to the house to make a coffee and by the time the coffee was made, the young woman had left the scene of the accident

[Bobreno]

Leaving the scene of an accident can make sense, assuming no injury and no other vehicle involved. A friend of one of my kids went off the road, partially damaged a wall, and the cops put her in jail for the night even though she had not been drinking.

I am surprised that a driver would be prosecuted in a case like this, with no other party involved. (And assuming no drinking involved, which would be hard to prove after the fact anyway).

The prosecution only want witnesses who will help their case. They do not want a hostile witness whose testimony may help the defence. So I might be tempted to say "I will attend if you force me to, but you won't like what I am going to say". I expect the request may then be dropped.

And standard advice in a deposition under oath is to say "I do not recall at this time". A lot.

Great answer Lootman .....Something along this line looks to be the winner "I will attend if you force me to, but you won't like what I am going to say"

The thing is this young woman has been through the mill on various accounts in her personal life, as most of us have in our time. She has had a wake up call and her car is a right off. The witness knows her family and is possible she could be banned if found to be driving with undue care and attention. I think we all have enough on our plates with the current state of affairs in this world, so why not cut her a break, rather than potentially adding to her burden.

The witness was giving a statement on the night in good faith without understanding the consequences ...she is very naive on these matters

The only looser will be the council, for the reimbursement for the street furniture, but they seem quite happy to waste our money all over the shop, so what's the difference

Many thanks for your post

[Bobreno]

.

The police report also makes any question avoidance problematic, as anything she "doesn't recall" now can simply be put down to a fading memory and countered with what she told the police at the time. And if she tries saying she doesn't recall telling the police anything she's probably going to end up looking pretty silly....

Good call, isn't it wonderful to have various points of view

I knew this board would be the best sounding board for such an issue

At the end of the day, the facts are ........ the witness didn't see the accident, didn't see who the driver was, only that the car owner was at the scene of the accident

The defence, know these facts and so know what they have to work with. They will question the witness to make the above clear

Light at the end of the tunnel. The onuses is on their defence to make use of the witness to their advantage

So really a none event, worth turning up for .......

[didds]

The only looser will be the council, for the reimbursement for the street furniture
Many thanks for your post

why wouldn't they claim against the driver? balance of probabilities etc ?

[Lootman]

What the defence might try objecting to as hearsay if the witness wasn't summoned to testify would be the police report ... although judges do tend to give high credence to what coppers report if it has been well and properly documented. The police arrived after the fact and questioned the witness and would have written down what she said and would be asked about that in court, and so the summoning of the witness will avoid any hearsay aspersions to the police report.

Assuming that this is a criminal case then it could well be a jury deciding this and not a judge.

And in a criminal case there has to be a finding of guilt beyond a reasonable doubt. So if the police report is uncorroborated by this witness (because the witness avoids having to do that in some way) then it would be a tough jury that convicted solely on the basis of a written report by a cop who only showed up later.

If nobody actually saw this defendant driving, but only after the accident, then there has to be some doubt who was driving even if the vehicle belonged to the defendant. Anything the driver told this witness about the accident is hearsay. And the driver cannot be made to testify.

But yes, any witness caught lying in open court loses all credibility and in extreme cases could face a perjury charge. As her I would want to see that police report before the trial, if that is possible. I don't know if Scottish law has the concept of a hostile or adverse witness but, if it does, then the prosecution lawyer could be very tough on the witness, even though she is ostensibly a prosecution witness.

[mc2fool]

What the defence might try objecting to as hearsay if the witness wasn't summoned to testify would be the police report ... although judges do tend to give high credence to what coppers report if it has been well and properly documented. The police arrived after the fact and questioned the witness and would have written down what she said and would be asked about that in court, and so the summoning of the witness will avoid any hearsay aspersions to the police report.

Assuming that this is a criminal case then it could well be a jury deciding this and not a judge.

The judge would be the one who decided whether a statement is hearsay or not and hence admissible into evidence or not.

[mc2fool]

If nobody actually saw this defendant driving, but only after the accident, then there has to be some doubt who was driving even if the vehicle belonged to the defendant. Anything the driver told this witness about the accident is hearsay. And the driver cannot be made to testify.

If the owner of the vehicle denies being the driver at the time then, unless she has already told the police it was nicked, she has the legal obligation to identify the driver and if she doesn't the police can prosecute her for failing to identify the driver.

http://www.motorlawyers.co.uk/offences/failing_to_identify_driver.php

The only looser will be the council, for the reimbursement for the street furniture

No, the losers will be the taxpayers who will ultimately have to bear the cost of fixing the busted signs and lamp post.

But that's unlikely to happen. Whether or not she/the driver gets done for driving without due care and attention, the council still knows the vehicle that caused the damage, the owner of the vehicle, the insurance of the vehicle, and who was insured to drive it. Assuming it wasn't nicked then they can ask who was driving, and if she denies driving and refuses to say who was then they can go after her, and if she let someone drive that wasn't insured to do so, they can go after her.

[Lootman]

Assuming that this is a criminal case then it could well be a jury deciding this and not a judge.

The judge would be the one who decided whether a statement is hearsay or not and hence admissible into evidence or not.

Yes i know. My point was that an uncorroborated police report without the witness should be inadequate to convince a jury that there is no reasonable doubt, absent other witnesses and non-circumstantial evidence.

If nobody actually saw this defendant driving, but only after the accident, then there has to be some doubt who was driving even if the vehicle belonged to the defendant. Anything the driver told this witness about the accident is hearsay. And the driver cannot be made to testify.

If the owner of the vehicle denies being the driver at the time then, unless she has already told the police it was nicked, she has the legal obligation to identify the driver and if she doesn't the police can prosecute her for failing to identify the driver.

http://www.motorlawyers.co.uk/offences/failing_to_identify_driver.php

For a parking or traffic ticket, yes. For a civil or insurance claim, again yes.

But for a criminal trial the defendant has the right to silence - that is a cornerstone of criminal law in most places and there are very good reasons for that. So the two legal issues appear to come into conflict here. (That said I do not know specifically about Scotland).

The idea that silence somehow connotes guilt has insidiously entered the UK legal system, as evidenced by the current UK police caution. As a juror I would never convict purely on such inferences, nor on other circumstantial evidence in general. After all, a person's liberty is at stake here. At some point a higher court will have to resolve this dilemma.

The only looser will be the council, for the reimbursement for the street furniture

No, the losers will be the taxpayers who will ultimately have to bear the cost of fixing the busted signs and lamp post.

But that's unlikely to happen. Whether or not she/the driver gets done for driving without due care and attention, the council still knows the vehicle that caused the damage, the owner of the vehicle, the insurance of the vehicle, and who was insured to drive it. Assuming it wasn't nicked then they can ask who was driving, and if she denies driving and refuses to say who was then they can go after her, and if she let someone drive that wasn't insured to do so, they can go after her.

A civil claim needs a lower burden of truth for sure. But a successful criminal conviction really helps a claim against insurance since the burden of proof is higher for a criminal court, making the claimant's case easier to win.

Of course the driver here may have no insurance.

[mc2fool]

If the owner of the vehicle denies being the driver at the time then, unless she has already told the police it was nicked, she has the legal obligation to identify the driver and if she doesn't the police can prosecute her for failing to identify the driver.

http://www.motorlawyers.co.uk/offences/failing_to_identify_driver.php

For a parking or traffic ticket, yes. For a civil or insurance claim, again yes.

But for a criminal trial the defendant has the right to silence ...

A right to silence for the matter they are being tried for, but: "Failure to identify the driver of the vehicle is a criminal offence in its own right... "

https://criminaldefence.info/motoring-offences/failure_to_identify/

[Lootman]

For a parking or traffic ticket, yes. For a civil or insurance claim, again yes.

But for a criminal trial the defendant has the right to silence ...

A right to silence for the matter they are being tried for, but: "Failure to identify the driver of the vehicle is a criminal offence in its own right... "

https://criminaldefence.info/motoring-offences/failure_to_identify/

I agree it is interesting. At my trial for dangerous driving (or whatever it is) I do not have to answer any questions. So you cannot ask me if I was driving or to identify anyone else who was. My defence lawyer only has to plant seeds of doubt in the minds of the jury that I may not have been driving. And with no witnesses or CCTV footage, some doubt must remain.

After my kids got their driving licenses but before they left home, we had 3 cars and 4 potential drivers. The car keys were kept in the hall and anyone could take any car. If you asked me which of the four of us drove our Honda on January 15th at 8 p.m., I could not possibly tell you.

[y0rkiebar]

Is the driver looking to get off any charges by lying about driving the car ? Sounds like that's the gameplan. If so then shame on her and the witness by going along with it.

[mc2fool]

A right to silence for the matter they are being tried for, but: "Failure to identify the driver of the vehicle is a criminal offence in its own right... "

https://criminaldefence.info/motoring-offences/failure_to_identify/

I agree it is interesting. At my trial for dangerous driving (or whatever it is) I do not have to answer any questions. So you cannot ask me if I was driving or to identify anyone else who was. My defence lawyer only has to plant seeds of doubt in the minds of the jury that I may not have been driving. And with no witnesses or CCTV footage, some doubt must remain.

If they weren't certain up front the cops would have asked you who was driving and your failure to say would have been conveyed to the jury and would almost certainly backfire, given that if you weren't driving and you identified who was that would absolve you of the dangerous driving charge!

[Clitheroekid]

The thing is this young woman has been through the mill on various accounts in her personal life, as most of us have in our time. She has had a wake up call and her car is a right off. The witness knows her family and is possible she could be banned if found to be driving with undue care and attention. I think we all have enough on our plates with the current state of affairs in this world, so why not cut her a break, rather than potentially adding to her burden.

The point you appear to be missing is that neither you nor the witness has any right to administer justice.

The administration of justice is vested in the state, and the fact that the state has decided to prosecute the driver means that they are quite sure that she was the driver - as, indeed, she was - and that, just like the rest of us who break the law, she should be punished for her crime.

Her difficult personal circumstances will be taken into account as mitigation, and may result in a lighter punishment, but they do not amount to a defence.

She was lucky only to cause damage to road furniture, but there could just as easily have been a pedestrian on the pavement who was killed or seriously injured by her dangerous driving. Would you / the witness still be saying that it was quite OK for the witness to assist her in potentially evading punishment by refusing to give evidence?

If not, then where do you draw the line?

This is why the decision whether or not to prosecute is made by the state and not by the criminal's mates.

Witnesses are often reluctant to give evidence, but the justice system relies on witness evidence to work effectively, and it's part of our duty as a member of a civil society to co-operate. There is therefore no justification for the witness in this case refusing to comply with the summons.

[Lootman]

I agree it is interesting. At my trial for dangerous driving (or whatever it is) I do not have to answer any questions. So you cannot ask me if I was driving or to identify anyone else who was. My defence lawyer only has to plant seeds of doubt in the minds of the jury that I may not have been driving. And with no witnesses or CCTV footage, some doubt must remain.

If they weren't certain up front the cops would have asked you who was driving and your failure to say would have been conveyed to the jury and would almost certainly backfire, given that if you weren't driving and you identified who was that would absolve you of the dangerous driving charge!

But the cops did not speak to the alleged driver at the scene. She had already left before the cops arrived. And even if they later talked to her, she had the right to silence.

And as I stated earlier there are a variety of circumstances where a vehicle owner may have no reasonable way of knowing who was driving their vehicle.

You are assuming that jurors infer guilt from silence. But I for one do not. It is not the defendant's job to make the case for the prosecution.

The thing is this young woman has been through the mill on various accounts in her personal life, as most of us have in our time. She has had a wake up call and her car is a right off. The witness knows her family and is possible she could be banned if found to be driving with undue care and attention. I think we all have enough on our plates with the current state of affairs in this world, so why not cut her a break, rather than potentially adding to her burden.

The point you appear to be missing is that neither you nor the witness has any right to administer justice.

Isn't jury nullification a case of ordinary people administering justice?

A jury can decide that a particular prosecution, or even a particular law, is unjust and therefore acquit. A jury can decide that a judge's instructions are prejudicial. Jury trials exist precisely to wrestle justice away from the professionals and the establishment, and place justice in the hands of the people, where it rightly belongs.

[mc2fool]

If they weren't certain up front the cops would have asked you who was driving and your failure to say would have been conveyed to the jury and would almost certainly backfire, given that if you weren't driving and you identified who was that would absolve you of the dangerous driving charge!

But the cops did not speak to the alleged driver at the scene. She had already left before the cops arrived. And even if they later talked to her, she had the right to silence.

Not in regards to that question. Again "Failure to identify the driver of the vehicle is a criminal offence in its own right...".

And as I stated earlier there are a variety of circumstances where a vehicle owner may have no reasonable way of knowing who was driving their vehicle.

And if so then you can explain that to the police and if they agree that your explanation is reasonable then they most probably won't prosecute you. But you can't explain by silence.

[Lootman]

But the cops did not speak to the alleged driver at the scene. She had already left before the cops arrived. And even if they later talked to her, she had the right to silence.

Not in regards to that question. Again "Failure to identify the driver of the vehicle is a criminal offence in its own right...".

And as I stated earlier there are a variety of circumstances where a vehicle owner may have no reasonable way of knowing who was driving their vehicle.

And if so then you can explain that to the police and if they agree that your explanation is reasonable then they most probably won't prosecute you. But you can't explain by silence.

Again, as a defendant i do not have to "explain" anything. I do not have to help the prosecution at all.

The Crown needs to be able to make its case without intimidating either the defendant or (getting back to the topic) intimidating a reluctant witness.

As a juror I would acquit in such a situation.

[didds]

Assuming that this is a criminal case then it could well be a jury deciding this and not a judge.

not if its a magistrate's court. Though then to be fair its not a judge its a magistrate!

[didds]

Is the driver looking to get off any charges by lying about driving the car ? Sounds like that's the gameplan. If so then shame on her and the witness by going along with it.

or did they have to collect the kids from school?

[JohnB]

It sounds like the witness feels they can change the outcome of the trial by their refusal to testify. The verdict is up to the court, not them, and they have a very strong moral obligation to say what they saw. To do otherwise is arrant cowardice.