The Lemon Fool

So, late at night a noise can be heard outside and on investigation there is a car in the bushes. It is just outside the garden fence by a rural road that is inside a 30mph zone

Looking at the road and curb marks, the car had mounted a curb and foot path, about 150 meters from where it finally stopped.

A young woman was getting out of the car, at the time the witness arrived. The young woman seemed sober and had a slight graze on her head, but was ok. The witness knew the woman by sight and offered a cup of coffee in the house and was accepted, but said she would call her dad first

After making the coffee the witness realised the woman had left the scene, by which time the police arrived and questioned the witness

There was a couple of street signs and a lamp post that were knocked down in the crash, but luckily no one else was involved

The witness has now been summoned to go to court and now regrets giving a statement, due to it being a small community and does not wish to give evidence. All that was witnessed was the ID of the person at the scene of the car.

How does the witness refuse to give evidence, that is my question ........???

Have a look at this webpage: https://www.citizensadvice.org.uk/law-a ... s-summons/

Bobreno wrote:Looking at the road and curb marks, the car had mounted a curb and foot path, about 150 meters from where it finally stopped.

Are we talking British or American law here, bob?

BJ

Hello, thanks for the interest
We are talking Scottish Law .....where it states if you do not attend, the court may order you be apprehended and be punished

However, even in court, you could refuse to comment, they cannot force you to speak .......not yet at least !

Bobreno wrote:Hello, thanks for the interest
We are talking Scottish Law .....where it states if you do not attend, the court may order you be apprehended and be punished

However, even in court, you could refuse to comment, they cannot force you to speak .......not yet at least !

Hmmm, attending in response to a summons to attend is different from giving evidence. You can do one and not the other. What if you had amnesia and couldn't remember the event very well or at all? Or gave such a confusing and contradictory account the jury (?) wonders why you were called?

There might be some mileage in refusing or failing to take or quibbling about the form of oath both you and the court find acceptable.

155 Punishment of witness for contempt.
(1) If a witness in a summary prosecution—
(a) wilfully fails to attend after being duly cited; or
(b) unlawfully refuses to be sworn; or
(c) after the oath has been administered to him refuses to answer any question which the court may allow; or
(d) prevaricates in his evidence,

he shall be deemed guilty of contempt of court and be liable to be summarily punished forthwith for such contempt by a fine not exceeding level 3 on the standard scale or by imprisonment for any period not exceeding 21 days.

Criminal Procedure (Scotland) Act 1995 https://www.legislation.gov.uk/ukpga/1995/46/section/155

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?

Possibly of little relevence, but it seems strange to call a witness who didn't witness the event.

I suppose there is a need for the prosecution to prove who was driving, but if the witness only arrived after the event, I'm sure a good defence solicitor could rubbish their evidence.

It just seems a bit pointless to me.

staffordian wrote:Possibly of little relevence, but it seems strange to call a witness who didn't witness the event.
I suppose there is a need for the prosecution to prove who was driving, but if the witness only arrived after the event, I'm sure a good defence solicitor could rubbish their evidence.
It just seems a bit pointless to me.

If the matter at issue is the identity of the driver, and the witness saw the driver getting out of the car presumably on the driver's side, then the witness is material. Unless Elvis was driving....

V8

wrt the actual OP query...

so what happens if forced to be a witness one then just says "I do not remember" ?

(rhetorical question really)

didds wrote: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?

My reading of the OP is that this was the witness's house - and the alleged driver left the house.

In any case, the question has been answered above and the witness must attend and give truthful and complete evidence (or risk a fine or imprisonment).

chas49 wrote:

didds wrote: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?

My reading of the OP is that this was the witness's house - and the alleged driver left the house.

In any case, the question has been answered above and the witness must attend and give truthful and complete evidence (or risk a fine or imprisonment).

ahh... I took the OP to mean that the witness had realised by inviting the driver into the house ie away from the car the driver had "left the scene".

sounds all very 39 steps!

A shame the witness doesn't want to go ahead, from the account given it's hardly earth shattering information they have to provide.
Just sounds like they want to help the young woman evade any responsibility she may have for the incident.

I can see why they need to hide what they saw. They sound as bad as the driver.

This all sounds a bit dodge to me.

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.

y0rkiebar wrote:A shame the witness doesn't want to go ahead, from the account given it's hardly earth shattering information they have to provide.
Just sounds like they want to help the young woman evade any responsibility she may have for the incident.

In this case, I cannot understand why one should be worried, but it has occurred to me that is more serious cases, witnesses can expose themselves to unreasonable risks - and there isn't really much the court or police can do to protect them effectively.

Justice depends critically on fair people doing the right thing, but one can see that doing the "right thing" is often a risk too far for the average person.

High Noon was a great play around these ideas.

Arb.

88V8 wrote:

staffordian wrote:Possibly of little relevence, but it seems strange to call a witness who didn't witness the event.
I suppose there is a need for the prosecution to prove who was driving, but if the witness only arrived after the event, I'm sure a good defence solicitor could rubbish their evidence.
It just seems a bit pointless to me.

If the matter at issue is the identity of the driver, and the witness saw the driver getting out of the car presumably on the driver's side, then the witness is material. Unless Elvis was driving....

But isn't it hearsay? I cannot testify that something happened solely on the basis that someone else told me that it had happened.

didds wrote:wrt the actual OP query...

so what happens if forced to be a witness one then just says "I do not remember" ?

(rhetorical question really)

Many years ago I was summoned to be a witness at a court hearing. I was advised that unless I was 100% sure of something then I should reply "I do not know" or "I cannot recall".

I was also advised to answer minimally. The example given was:

Barrister: "Do you know the current time"
Answer: "Yes".

Lootman wrote:

88V8 wrote:If the matter at issue is the identity of the driver, and the witness saw the driver getting out of the car presumably on the driver's side, then the witness is material. Unless Elvis was driving....

But isn't it hearsay? I cannot testify that something happened solely on the basis that someone else told me that it had happened.

Yes, I was going to reply along those lines, but you beat me to it.

Even seeing the 'driver' exit the driving seat proves nothing. For example, It could be claimed that the driver ran off and she moved across from the passenger seat to try to move the car...

chas49 wrote:the question has been answered above and the witness must attend and give truthful and complete evidence (or risk a fine or imprisonment).

That answers the question of whether a summons can be ignored. It cannot, or at least not unless you feel strongly enough to accept a charge of contempt, and some might on principle.

But it does not answer the broader question actually posed by the OP: "How does the witness refuse to give evidence, that is my question ........???"

That question raises the issue of how a witness can avoid providing incriminating testimony. And there are some ways to do that even if you show up and take the stand and the oath. For instance you cannot be made to testify against your spouse. You cannot be forced to incriminate yourself ("taking the fifth" in American parlance). You cannot testify to hearsay. And so on.

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"

Like a lot of legal questions there are often two answers: One is the chapter and verse of the law. The other is about what actually happens in practice.

Lootman wrote:

88V8 wrote:If the matter at issue is the identity of the driver, and the witness saw the driver getting out of the car presumably on the driver's side, then the witness is material. Unless Elvis was driving....

But isn't it hearsay? I cannot testify that something happened solely on the basis that someone else told me that it had happened

But that isn't the case here. The witness is not being summoned to testify what someone else told her but what she observed herself.

If she says that her neighbour told her that she saw the woman crash the car and her neighbour wasn't available to the court to be cross examined then that would be hearsay (although there are exceptions, e.g. if the neighbour wasn't available 'cos she was dead).

But the witness simply testifying as to what she observed is not hearsay. The defence may, of course, question her and try to cast doubt on the accuracy of that (was she wearing her glasses etc) but they can't object to it as hearsay, 'cos it isn't.

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.

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....