2. Criminal Litigation__4 - Evidence Flashcards
Agreeing a witness statement by consent of parties
Statement is read out from witten statement Carries same weight
Agreeing fact between parties
Advocates agree that a fact is so Both lawyers agree and sign the agreeent
Agreeing fact by judicial notice
Judge takes “judicial notice” of a fact “on equiry” They could find the fact out easily Or without if they know it off teh top of their head It cannot be on personal matters If a juror has personal knowledge of matters that are relevant to a case, they should let the court know
Types of evidence
(a) oral evidence given by a witness in court – the most common (b) written form: - agreed statements - admitted facts (c) ’real’ evidence = objects brought in (d) ‘direct’ evidence = e.g. saw someone somewhere (e) ‘circumstantial’ evidence = train ticket in pocket (f) a ‘view’ = going to scene of crime
Admissibility, relevance and weight of evidence
Relevant = admissible Weight = how strong, reliable, valuable it is Matter for the jury Except judge may intervene
Who has tribunals of fact and law
Magistrates - both Crown Court - tribunal of fact = jury/ tribunal of law = judge
Burden of proof
So that you are sure of guilt = reasonable doubt Mostly, defendant has nothing to prove Except when they have a defence e.g. insanity
Burden and standard of proof
• The burden of proving the elements of the offence is always on the prosecution. • The standard to which prosecution proof is put is always “so that
When does the law put the burden on the defence?
When an active defence is being run. If the defendant has a legal burden to prove a fact in issue (to prove an element of your case to a prescribed standard), you have the evidential burden of ‘passing the judge’ with the same evidence - so judge believes that there is some evidence on which it could find that the issue has been proved.
Self defence: Burden of defence and prosecution
In rare cases, the legal and evidential burden are detached. Most often in self-defence. The judge requires some evidence to be raised in order to put the issue before the jury, but there is no actual standard of proof required. The defendant must provide some evidence to the judge that the defendant did act in self-defene. Then, the prosecution is on notice to prove that the use of force was unlawful. It has to disprove self-defence. In sum - defendant cannot call jury to acquit on basis of self-defence without having raised some evidnece of it.
Duress and alibi
The prosecution are not required to predict that a defence of duress will be relied upon but if sufficient evidence is raised to leave it as a live issue it is the prosecution who must disprove it beyond a reasonable doubt.
For a case of alibi, the Judge must direct the jury that although the defence have raised the defence, it is not a matter for them to prove. The prosecution retain the burden of disproving the alibi so the jury are sure.
Options to exclude evidence or seek to bring a prosecution case to an end
- Applications for dismissal;
- Submissions of no case to answer;
- Applications to exclude evidence under s.78 of the Police and Criminal Evidence Act 1984
- Applications to exclude confessions under s.76 PACE;
- Applications to exclude evidence under the preserved common law provisions – s.82(3) PACE;
- Abuse of process applications.
Test for dismissing a charge
If the judge thinks “the evidence against the applicant would not be sufficient for him to be properly convicted”, This is the same test to be applied when the defence makes a submission of no case (R v Galbraith).
- where there is no evidence that the defendant has committed the crime; or
- where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it Judge must take into account the whole of the evidence.
Judicial review cannot be used to challenge a decision by the Crown Court on an application to dismiss.
What does it mean to stay the proceedings?
If the application is successful, the prosecution case will not be able to proceed. Not the same as a ‘not guilty’ verdict - but there will not be a conviction and record will not be tarnished.
Common law discretion to exclude evidence
S82(3) PACE preserves the common law discretion of the courts to exclude evidnece where its prejudical effect outweighs its probative value. It applies only to prosecution evidence. It has little relevance because of s76 and s78
PACE Codes of Practice
Set out procedures that the police must follow in the exercise of their powers under PACE. The codes are admissible in evidence, meaning that where a breach of a code is alleged the defence are entitled to rely in court on the content of the code which sets out those procedures which should have been followed.
PACE Code C
- Detained suspects must be informed of right to consult privately with solicitor, free legal advice, have someone informed, consult COP - Must be cautioned before any questions - Caution must be given on arrest - Correct caution - Interview must take place at a police station, except when… - Minors and mentally vulnerable must be interviewed in presence of an appropriate adult …
Examples of using Code breaches for s78
• the ‘fundamental right’ of access to legal advice has been improperly denied • where waiver of the right of access to legal advice was not voluntary, informed or unequivocal; • where there has been a failure to caution a suspect before questioning; • where an appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect; • where identification procedures have not been followed.
Making a s78 application
An application under s78 PACE can be made: - before trial - at commencement of trial - just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded Depends on effect of exclusion of evidnece. If more significant, pre-trial more likely. The key point is that a s.78 application should be made before the evidence to which objection is taken is adduced.
What is a confession?
”Confession”, includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.’ This is wide. Includes: - Mixed statements - Nods
Limb 2: Objectively likely to render unreliable a confession?
It is a hypothetical question. Ojective test. ‘Unreliable’ means cannot be relied upon as being the truth. e.g. deprivation of sleep, failure to cauton, denial of access to legal advice
Limb 2: Has prosecution proved beyond reasonable doubt that confession was not obtained in consequence?
Question of fact for the judge and should be approached in a common sense way
Evidence discovered as a result of an excluded confession
Does not affect the admissibility of: 1. any facts discovered as a result of the confession e.g. discover body as a result. but prosecution could not refer to the confession. 2. where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so e.g. if misspells
GO BACK AND READ THROUGH NOTES ON EVIDENCE AS LOTS OF DETAIL
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Advance notification of application to exclude confession
Defence statement should incude any points of law including admissibility of evidence. So should include support of any s76/ s78 arguments. Standard case preparation time limits for magistrates require any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that.
Turnbull guidelines
Where the case against the accused depended wholly or substantially on evidence of identification, which the suspect alleged to be mistaken. If judge thinks the witness evidence is so weak it would lead to an unsafe conviction –> withdraw the case from the jury and direct the jury to acquit the defendant. If the judge decides that the evidence given by the witness at trial is strong enough to be left to the jury or is weak but supported by some other evidence –> specific Turnbull warning.
What is a Turnbull warning?
The judge will: · Warn the jury of the need for caution and instruct the jury as to the reason for warning – that witnesses can be mistaken and yet convincing · Direct the jury to examine the circumstances in which the identification was made · Remind the jury of any specific weaknesses in the identification evidence · Direct the jury to consider if there is any other evidence to support the correctness, which can include scientific evidence, multiple identifications, bad character, previous convictions, silence on interview, and the accused’s admissions · Direct the jury to consider factors (other flashcard) when considering the strength of the identification
ADVOKATE factors to consider
· Time between the witness viewing the accused and the ID procedure
· Distance between witness and accused when seen initially
· If the witness had any reason to remember the accused
· Material discrepancies between the witness’s first description and the accused’s appearance
· Visibility at the time of observation e.g. lighting
· If there were obstructions or interferences in the witness’s view
· How long the witness viewed the accused for
· If witness had seen accused before
Dock identification
Identification by a witness for the first time in court. Exceptional and rare and undesirable. It is an undesirable practice, as it leaves the witness with no other alternative than the defendant and the fact that the defendant is already standing in the dock is highly prejudicial. A trial judge retains a discretion to permit a dock identification. In considering this, the judge will need to consider whether such a course of conduct will jeopardise the fairness of the accused’s trial.
Definition of bad character
Evidence of, or of a disposition towards, misconduct on his part, other than evidence which has to do with the alleged facts of the offence or is evidnec eof misconduct in connection with investigation of that offence. Misconduct = reprehensible behaviour = morally blameworthy in a criminal sense e.g. being part of a gang
Conduct which is not bad character evidence
Everything to do with the crime and investigation. e.g. if defendant lies in interview. Attempts at jury tampering or witness intimidation are examples of misconduct connected with the investigation or prosecution of the offence, so evidence of those matters is not bad character evidence.
Agreement of the parties: S101(1)(a)
Evidence is admissible if all parties to the proceedings agree to the evidence being admissible. There is no need to make an application to the court for leave to adduce evidence through this gateway. Tacit agreement is enough.
Evidence adduced by the defendant: S101(1)(b)
Defendants can introduce their own evidence of bad character, given on purpose before or in answer to a question in cross-examination. Why? • To come clean about an old conviction in order to receive a modified good character direction • To show that D has never been convicted of an offence of the type with which D is now charged • To put forward a defence, e.g. to show that D was in prison at the time of the alleged offence • To show why police officers might have a bias against D Leave of the court is not required
Relevant to an important matter: S101(1)(d)
Important matter: a) question of whether defendant has a propensity to commit offences of the kind, except where his having the propensity makes him no more likely to have committed it - offence of the same description = written charge would be in the same terms - offence of the same category - but not if the court is satisfied that it would be unjust to apply this, for reason of length of time or any other reason b) question of whether defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect Only prosection evidence
Cross-admissibility of bad character evidnece
Where a defendant faces multiple charges in the same proceedings, the bad character provisions apply as if each offence were charged in separate proceedings. So, a gateway is required to have 1 offence be evidence for the other. Most likely to be s101(d), important matters. e.g. if man assaults 2 people, can only use Assault against Victim 1 as evidnece for Victim 2 if fits in 101(d) gateway. Jury would have to be sure of guilt for VIctim 1.
Functions of judge and jury, s101(d) important matters
The judge is to determine whether evidence is capable of establishing a propensity. If evidence is admitted to show propensity, it is a matter for the jury whether it does actually show the propensity that is asserted. Leave of the court is required to admit evidence through this gateway.
When is leave of the court needed?
(c) Important explanation evidence (d) Importnat amatter (e) Defendant and co-defendant (f) Correcting flase impression (g) Attack on another person’s character
What does fairness test apply to?
‘The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit.’ d = matters of importance g = attack on another person’s character
Directing the jury
The weight to be placed on evidence of bad character that has been adduced during the trial is a matter for them. It should be stressed that bad character evidence cannot be used to bolster a weak case, or to prejudice the jury against the defendant. Jury should be directed at: - Cannot conclude merely because previous convictions - Propensity is not enough to show that defendant committed the offence Significance of bad character evidence should be assessed in the light of all the evidence in the case.
Substantial probative value in relation to a matter in issue and of substnatila importance as a whole, in 100(1)(b)
‘Matter in issue’ can refer to either credibility or a disputed fact. Propensity can be a matter in issue for the purposes of s.100. A defendant can adduce evidence of another person’s propensity to commit offences of the type charged to show that that person, and not the defendant himself, committed the offence. Substantial = the evidence must be capable of having an impact on the way in which the jury could assess the evidence of a witness or the case as a whole.
Non-defendant bad character summary
S107 - Contaminated evidence of bad character
Court has discretion to stop the case when it is satisfied at any time after the close of the case for the prosecution that bad character evidence that has been admitted is contaminated and the contamination is such that the conviction of the defendant of the offence with which D is charged would be unsafe.
S110 - reasons
Section 110 requires the court to give reasons in open court for any ruling it makes on the issue of bad character.
How to prove convictions for bad character evidence
Certification of conviction. Evidence of conviction or acquittal.
Convictions as evidence of offence
Where a person is proved to have been convicted of an offence by any court in the UK or other EU Member State, that person shall be taken to have committed the offence unless the contrary is proved. The burden of proof is to show on the balance of probabilities that the offence was not committed by that person.
Rules 21.2 and 21.4: Defendant bad character - timing
Prosecution Evidence • Magistrates’ court – Not more than 20 business days after the defendant pleads not guilty • Crown Court – Not more than 10 business days after the defendant pleads not guilty Co-Defendant’s Evidence • As soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based Response • Not more than 10 business days after service of the notice
Rules 21.2 and 21.4: Defendant bad character - contents
Prosecution Evidence and Co-Defendant’s Evidence • Set out the facts of the misconduct on which that party relies; • Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and • Explain why the evidence is admissible. Response In the application explain, as applicable- • Which, if any, facts of the misconduct set out in the notice that party disputes; • What, if any, facts of the misconduct that party admits instead; • Why the evidence is not admissible; • Why it would be unfair to admit the evidence; and • Any other objection to the notice.
Rules 21.2 and 21.3: Non-defendant bad character - timing
Magistrates’ court and Crown Court • As soon as reasonably practicable; and • In any event not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant) Response • Not more than 10 business days after service of the application
Rules 21.2 and 21.3: Non-defendant bad character - contents
Magistrates’ court and Crown Court • Set out the facts of the misconduct on which that party relies; • Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and • Explain why the evidence is admissible. Response In the notice explain, as applicable- • Which, if any, facts of the misconduct set out in the application that party disputes; • What, if any, facts of the misconduct that party admits instead; • Why the evidence is not admissible; and • Any other objection to the application.
Court’s powers
The court can determine an application with or without a hearing in public or in private. The decision must be announced at a hearing in public, but in the absence of the jury. Court has a discretion to shorten or extend time limits or to allow an application or notice to be given in a different form. Extensions to time limits can be granted after the time limit has expired. Written notice is likely only to be given for (c) or (d). Others are more likely to come up in trial, so application will be oral
What is hearsay? Criminal
A statement made out of court and repeated in court to prove the truth of that statement. Is it hearsay? a) What is the matter that is sought to be proven? b) Is there a statement of that matter in the communication? Is the statement adduced as evidence of the matter stated? c) If yes, was it the purpose of the maker of the communication that someone should believe that matter or act upon it as true? d) Was it a statement made out of court Statement = anything Someone = machine or anything
What is the risk of unfairness with hearsay?
Hearsya evidence cannot be tested by cross-examination in court. So risk is great. Greater depending on importance of hearsay evidence. The ECHR Article 6 right to a fair trial may be engaged where hearsay evidence is admitted.
UKSC and ECHR on fairness and hearsay
- UK statutory framework for admission of the evidence of absent witnesses is sufficient, properly applied, to provide for a fair trial - Court must always be satisfied that there is a sufficient basis for the absence of the witness and that a fair trial will be possible - Harder for the court to be satisfied that a fair trial will be possible if the evidence of the absent witness is the sole or decisive evidence against the accused - Where the hearsay evidence is critical to the case, the question of whether there can be a fair trial depends on three principal factors: Whether there is a good reason to admit the evidence pursuant to the CJA 2003;Whether the evidence can be shown to be reliable; andThe extent to which counterbalancing measures have been properly applied, e.g. exclusionary discretion, proper directions to the jury in summing up.
Types of things which aren’t hearsay
- Private diary - CCTV - not made by a person - Any communication which is a question - Statements used to show the effect of words, rather than to show truth of what was said - Legally significant words e.g. offer of sexual services - Statements which the maker asserted were not true - Original evidence adduced to show that words were spoken, rather than that they were true
Hearsay and original evidence
Often, evidence of words spoken out of court will be admissible as original evidence. In many cases the purpose of the party adducing the evidence will be to show that the words were spoken, rather than that they were true. The evidence is not hearsay because it is not being admitted as ‘evidence of any matter stated’.
What are the statutory provisions which make hearsay admissible?
- The witness is unavailable (114) - The hearsay is a business document (117) - Previous inconsistent statements (s119) - Previous consistent statements (s120)
What is the endorsement in a witness statement?
If witness is unavailabe due to fear…
Includes fear of death, injury of another person or of financial loss Leave may only be given, i.e. the hearsay may only be admitted, if: - it is in the interests of justice court has had regard to: - contents of statement - any risk of unfairness to any party, especially difficulty of challenging the statement - special measures for giving of evidence by fearful people Fear does not need to have been caused by the defendant.
How to prove fear of a witness…
The court has to be satisfied to the criminal standard that the witness does not give evidence through fear. A causative link between the fear and the failure to give evidence must be established. Police cannot tell witness before that they could have their statement read out.
Intimidation and fear of witness
Where intimidation of a witness by a defendant is either clearly proved or the court believes to a high degree of probability that that is the case, the defendant cannot complain that the right to a fair trial has been infringed on the basis that the defence was not able to cross-examine the witnes
Exception: The hearsay is in a business document
o A document or part which is created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office. o The person who supplied the information had or may reasonably be supposed to have had personal knowledge of the matters dealt with. o Each person who the information was supplied through also received information in course of trade… –> Medical records, statements written by police officers
Exception: business document, extra rules for documents prepared for criminal proceedings
For hte document to be admissible, it must be also because: 1. Any of the s116 conditions are satsified i.e. the witness is unavailable 2. the person who supplied the information contained in the statement cannot reasonably be expected to have any recollection of the matters dealt with in the statement Includes all witness statements and all entries in police notebooks
When can court exclude evidence which would otherwise be admissible under s117 (business document)
If the statement’s reliability is doubtful in view of: (a) its contents; (b) the source of the information contained in it; (c) the way in which or the circumstances in which the information was supplied or received; or (d) the way in which or the circumstances in which the document concerned was created or received.
Exception: Previous inconsistent statements (s119)
o a previous inconsistent statement that a witness admits to having made; or o a previous inconsistent statement that the witness is proved to have made is admissible as evidence of the matter stated
Exception: Previous consistent statement (120)
To rebut a suggestion of recent fabrication or as recent complain evidence
Exception: Interests of justice
The court can admit hearsay evidence when it is in the interests of justice to admit it. Court must consider: - The probative value of the statement - What other evidence has been or can be given - How important the matter/ evidence is to the case as a whole - Circumstances in which statement was made - How reliable maker of statement appears to be - How reliable the evidence of the making of the statement appears to be - Whether oral evidence can be given or why not - Difficulty in challenging the statement - Extent to which that difficulty would be likely to prejudice the party facing it But, apply with caution.
What is multiple hearsay?
Oral hearsay = witness testifies to what a person said Multiple hearsay = witness testifies to what a person said a person said Not admissible unless: o Either of the statements are admissible under s117 (business document), 119 (inconsistent), 120 (consistent), or o All parties agree, or o Court is satisfied that value and interests of justice mean it is necesary
Common law exceptions, hearsay
• public information; • evidence of reputation; • res gestae; • confessions; • statements in furtherance of common enterprise; and • body of expertise.
Public information
o Published works dealing iwht matters of a public nature such as Dictionaries and maps o Public registers, public documents o Court records, treaties
Evidence of reputation
The common law rule allowing the admission of evidence of reputation as to character, to prove character, is preserved.
Res gestae
Possibility of concoction is excluded. Admissible if: (a) The statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded; (b) The statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or (c) The statement relates to a physical sensation or a mental state (such as intention or emotion The statement must be made at a time when the mind of the person making the statement was still dominated by the event. Jury must be satisfied that there was no mistake on the part of the witnesses as to what had been said to them. e.g. domestic violence victims statements in 999 call
Statements in furtherance of common enterprise
By one criminal to the other parties to further the criminal enterprise
Hearsay procedure, role of court and challengng
- Credibility of person who made statement can be challenged in evidence that would have been put to person in cross-examination - Judge can stop a case where the case depends wholly or partly on hearsay evidence and that evidence is so unconvincing that, considering its importance to the case against the defendant, the defendant’s conviction of the offence would be unsafe. - Court can exclude superfluous hearsay - Jury needs to be reminded that a hearsay statement that has been admitted at the trial was not given on oath and that it was not tested in cross-examination. Point of risks and limitations of usefulness of the particular evidence.
When is notice required for hearsay?
When this evidence is being admitted: - Interests of justice s114(1)(d) - Unavailable witness s116 - Document prepared in contemplation of criminal proceedings s117(1)(c) - Multiple hearsay (s121) The notice must be served on court and every other party. Evidence should be attached to notice if not already served.
Timeframe for serving notice for hearsay
The prosecution must serve notice not more than: (a) 20 business days after a not guilty plea in the magistrates’ court; or (b) 10 business days after a not guilty plea in the Crown Court. A defendant must serve notice as soon as reasonably practicable
Timefrae for opposing hearsay
A party opposing the introduction of hearsay evidence must serve an application on the court and every other party as soon as reasonably practicable and in any event not more than 10 business days after either of the following, whichever of those happens last: (a) Service of the notice to introduce the evidence; (b) Service of the evidence objected to, if that is evidence for which no notice is required; or (c) The defendant pleads not guilty
What is res gestae?
A res gestae witness is an individual who has experienced an event firsthand and can therefore directly testify about what happened. The term derives from the Latin res gestae, meaning “things done.”
Exclusion of confession - Structure
- Remind the court that once the admissibility is challenged, it is for the prosecution to prove beyond reasonable doubt that the confession is not unreliable. 2. Remind the court the confession MUST be excluded if the prosecution do not discharge this burden of proof under s76 PACE. 3. Identify that the confession is relevant to a matter in issue between pros- ecution and defence and is therefore admissible 4. Identify under which ground the confession is sought to be excluded and provide relevant details: Unreliability owing to things said or done to render it unreliable; Unreliability owing to oppression. 5. Demonstrate causation from the things said or done or oppression to the confession
Application for excluding any form of evidence
In addition to any of the other tests cited for the admission or exclusion of evidence, remember that the court has a general discretion to exclude prosecution evidence if having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it under s78 PACE. This could be used as an alternative/additional argument, in conjunction with other tests, or as a stand-alone argument.
Admissibility of hearsay evidence
- Identify whether the hearsay is single or multiple hearsay 2. For single hearsay, identify that hearsay is inadmissible, unless one of the exceptions applies: Under statute; By rule of law; By agreement of the parties; In the interest of justice. 3. Or, for multiple hearsay, consider whether it is contained in a business document, it is an inconsistent statement or a consistent statement, if all the parties agree, or if the value of the evidence is so high that it is in the interests of justice 4. Apply the test from the relevant exception.
Admissibility of defendant’s bad character
- Is it evidence of, or of a disposition towards, misconduct, commission of offences, or other reprehensible behaviour outside of the facts of the offence? If yes, it is not admissible, unless 2. It falls under any of the 7 gateways to admission, 3. If adduced under ‘important matter in issue between prosecution and defence’ or under ‘the defendant attacked another’s character’, the court must not admit it if the defence make an application to exclude it and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.
Bail application
NB: Remember that the rules of evidence do not apply as strictly to bail applications as other hearings (as they come at such an early stage of the proceedings) and so there is not the same stringent requirement to base every submission on evidence already before the court. 1. Remind the court of the defendant’s right to bail – bail can only be refused if one of the exceptions to the right to bail apply, AND there is a real prospect of a custodial sentence 2. Consider whether any of the exceptions to the right to bail apply – these are usually whether there are substantial grounds to fear the defendant would fail to surrender, commit further offences on bail or interfere with witnesses or otherwise obstruct justice 3. Review the factors in deciding whether substantial grounds exist – for example, nature and seriousness of the offence, defendant’s character, defendant’s record of complying with conditions on bail, the strength of the evidence, etc. 4. Consider whether any conditions can be put forward to address these issues, for example, residence, reporting, exclusion, non-contact tag, curfew, etc., and 5. Conclude on why bail should/should not be granted
Exception to general rule of hearsay evidence
four exceptions to the general exclusionary rule: 1. any of the statutory exceptions in the CJA 2003 apply; the witness is unavailable (s.116); or it is a business document (s.117) – however, the court has the discretion to exclude such a business document if it is satisfied that the statement’s reliability is doubtful (s.117(6) and (7)); orit is in the interests of justice to admit it (s.114(1)(d)).all the parties agree; or the court uses its statutory discretion to admit the hearsay, in the interests of justice. Note the court has discretion to exclude unfair prosecution evidence (s.78 PACE). 2. any of the common law exceptions preserved under the CJA 2003 apply public information; evidence of reputation; res gestae; confessions; statements in furtherance of common enterprise; and body of expertise.
When should a Turnbull direction be given?
A Turnbull direction should be given when the case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification.
What is a Turnbull direction?
Guidelines aimed at assessing the quality of the identification evidence. The judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification, whenever the prosecution case against an accused depends wholly or substantially: on the correctness of one or more identifications of the accused; andthe defence alleges the identification to be mistaken.
the three elements of a turnbull direction
This special Turnbull warning has three key elements. The judge should instruct the jury as to the reason for the need for such a warning; mistaken witnesses can be convincing ones.direct the jury to examine the circumstances in which the identification by each witness came to be made.remind the jury of any specific weaknesses in the identification evidence.
