Where a document or statement is barred from being evidence, may it still be put before the court to challenge the reliability of the accused's account at the trial?
General information · Not legal advice
Material to check
In practice material of this kind, we read the copy of the document or statement relied on, the paper showing who took or joined in that statement and whether it preceded the prosecution, and the record of the preparatory hearing or trial day where the account is being tested.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading treats paragraph one as a gateway: a document or statement that cannot be made evidence under the exclusion provisions may still be used as evidence, but only at the preparatory hearing or trial day, and only to contest the probative force of a statement given by the accused or by another person, including one who examined the accused as a suspect before the prosecution was brought or took part in that examination.
Another reading stresses that paragraph two limits this gateway for video recordings of such statements: one may be played to the person so they can watch it only where their memory of a particular matter is plainly unclear and refreshing it is judged necessary, and the provision leaves unstated who makes that judgement of need.
Your judgment
When a recording is offered as refreshment rather than as contested proof, what in the record shows the memory was plainly unclear on that particular matter?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to change when a video recording may be played, or if a court decision clarifies who decides that a person's memory needs refreshing.