Who may ask the prosecutor handling the case to file an application to preserve evidence, and what must that request show?
General information · Not legal advice
Material to check
In a practice file of this kind we read the request made to the prosecutor, the recorded video or other evidence the request concerns, and any note or medical paper showing why attending the trial and testifying is manifestly difficult for the victim; the victim's age documents matter because of the deemed condition.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading follows the actors in the order the provision lists: the victim, the victim's legal representative, or a judicial police officer may request the prosecutor in charge of the sexual violence offence case to file an application to preserve evidence, setting out the reason that testifying at the trial is manifestly difficult; where the victim falls in the under-age category the provision names, that difficulty is deemed to exist.
Another reading notes that the deemed condition covers only one element of the request: even for a victim in the under-age category, the request must still be addressed to the prosecutor handling that sexual violence case, must still concern the video recorded under the provision or other evidence in the same case, while for such a victim the provision deems the manifest difficulty for testifying at the trial to exist.
Your judgment
If the victim had reached adulthood before the request was made, what in the file would show whether the deemed condition still applies to that request?
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 who may make the request or the scope of the deemed condition, or if a court decision explains which circumstances count as manifestly difficult for testifying at the trial.