1. Cross | Introduction Flashcards
Circumstantial Evidence
Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence.
(a) “Any fact from the existence of which the judge or jury may infer the existence of a fact in issue”. Number of steps which have to be taken from the first evidentiary fact to the ultimate inference of fact ultimately weakens that evidentiary fact as a means of proving the matter
(b) Distinguished from direct evidence (assertion made by a witness offered as proof of the truth of the fact asserted, or a statement going to one of the five senses)
Direct evidence described in one of two ways (contrasting with hearsay evidence, and contrasting with circumstantial evidence).
Testifying that a person saw an alleged murderer carrying a bloody knife is direct evidence in the sense it is not hearsay, but circumstantial in sense that person did not see how the blood got there
Three types of circumstantial evidence
PROSPECTANT
Presumption of fact or provisional presumption evidence (IE: the presumption of continuance) - Law presumes state of a person’s mind continues until contrary shown, ie continuance.
(IE: if the speed at which someone was driving at a particular time is in issue, evidence of the rate at this they were travelling moments earlier is admissible)
See also evidence of habit, or motive of plan
** Sometimes describes as the “course of business”
CONCOMITANT
Contemporaneous evidence - opportunity, res gestae, evidence which is proximate in time, place, and circumstance.
RETROSPECTANT
Opposite of Prospectant – subsequent occurrences of an act (IE driver’s excessive speed could be proved to indicate excessive speed a short distance earlier)
Presumption of regularity. Solicitor giving evidence wouldn’t need to produce a practising certificate
Exercise due care in criminal proceedings
Presumption that someone purporting to act in a public role has been duly appointed, and any action they performed was validly done.
Good example: absence of explanation for a given event. IE someone found in possession of recently missing goods, jury may inferred person stole them or dealt with them.
Failure to give evidence (general)
Jones v Dunkel inferences and unexplained failure to give evidence or call witness
A) Unexplained failure by a party to give evidence, to call witnesses, to tender documents, or other evidence or to produce particular material to an expert witness, may (but not must) lead, in appropriate circumstances, to an inference that the uncalled evidence or missing material would not have assisted the party’s case.
B) Negative inference – does not allow inference untendered evidence would have been damaging, or create any admission (distinguish with destruction of evidence, or giving false evidence)
Failure to give evidence (criminal)
Azzopardi Direction
Refusal to give or call evidence is a right of the defendant, who is not bound or obliged to give evidence. Remaining silent is not an admission of guilt by conduct, and proves nothing.
The one qualification: quote from bench book:
“Prosecution argues that [list of significant facts] prove that the defendant is guilt as charged. You may think that if there are any ADDITIONAL FACTS that would explain that evidence against the defendant, or contradict the conclusion of guilt which the prosecution asks you to draw, those additional facts, if they exist, would be additional facts known ONLY TO THE DEFENDANT, and could not be the subject of evidence from any other person or source.
Consequence of defendant NOT calling evidence is that the jury has no evidence of additional facts to explain the evidence. This allows a conclusion of guilt to be more safely drawn
Evidence of identity
Best approach
i. Police to hold an identification parade before trial, or preliminary examination, placing the accused with a sufficient number of other people, and leave the witness to attempt identification without assistance.
Errors and problems in identification
i. Using a mugshot
ii. Showing witness photo beforehand and asking them to identify them
iii. Identification from police photographs may be excluded if prejudicial effect exceeds probative value
Evidence of identity (warnings)
Domican warning
i. Warning re danger of convicting on identification evidence alone
ii. where evidence as to identification represents any ‘significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is dispute’
iii. No set formula, but must be cogent and effective and not general – must specifically draw jury’s attention to the weaknesses of the identification evidence
iv. Can apply to voice identification, and a similar warning given to objects (again where not peripheral to the major issue)
Object warning
i. Where identification of a key object is made, jury should be warned of risks of convicting on the basis of identification evidence of object alone, and the danger of contamination of memory by later facts
Evidence of identity - key EAC Sections
Section 114 – Exclusion of visual identification evidence
Section 115 – Exclusion of evidence of identification by pictures
Section 116 – Directions to jury if identification evidence admitted
Section 116 applies to ALL identification evidence (direction required for everything)
Section 137 – Exclusion of prejudicial evidence in criminal proceedings
Relevance
EAC: Section 55 – evidence relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding
(a) All evidence sufficiently relevant to the issue is prima facie admissible. In civil, evidence that goes to the facts in issue in the pleadings. In crime, the elements of the offence charged
(b) Exceptions to relevant evidence:
i. Hearsay
ii. Opinion
iii. Character evidence
iv. Similar fact
(c) Relevance is assessed by taking the evidence at its highest level – do not assess probative value of evidence at this stage
Admissibility vs weight
(a) Admissibility is exclusively determined by the judge, weight for the jury
(b) In determining admissibility, per relevance, evidence is taken at its highest. You do not assess probative value at this stage, except under one exception
Just because evidence is weak does not mean it is non-admissible, unless it is so weak its probative value is outweighed by its prejudicial effect
References to weight or probative in the context of RELEVANCE does not mean credibility or reliability: it means the extent to which the evidence helps establish a fact in issue
Christie Discretion
i. Trial judge can only exclude evidence where, taken at its highest, its probative value is outweighed by its prejudicial effect. Words “probative value” require the trial judge to assume the evidence would be accepted, as it could only have probative value if it could rationally affect a material fact in issue.
ii. See also s 137 UEA however legislation is non-discretion (Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger od unfair prejudice to the defendant).
Pfennig test
Example of probative vs prejudicial effect
(a) “Propensity evidence will be admissible only if its probative value exceeds its prejudicial effect…there is no reasonable view of the evidence consistent with the innocence of the accused”. Such a “strong degree of probative force” or “strikingly similar”. In light of all the evidence, including the propensity evidence, is “there a rational view of the evidence consistent with innocence?”.
QUOTE (HML)
“Whatever the purpose for which similar fact evidence is adduced, it has an effect which the law regards as capable of providing a good reason for or other discreditable conduct. If that is all it shows, and the prosecution adduces the evidence for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried, then the law excludes such evidence as a matter of fundamental principle.
**The purpose just described is often referred to as propensity although that itself is ambiguous. The reason for the exclusion is not the irrelevance of propensity, but its prejudicial effect. In this context, prejudice means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate. If it did, probative value would be taken by a jury to prove too much that the law seeks to guard against.”
