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evidence - crim lit > 2 Visual identification, opinion evidence and experts, and privilege > Flashcards

2 Visual identification, opinion evidence and experts, and privilege Flashcards

1
Q

What 2 things need to differentiate?

A

Visual identification VS recognition

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2
Q

How does the law tries to avoid miscarriage of justice caused by visual ID?

A
  1. Code D of police codes of practice
  2. Turnbull directions
  3. Prohibition of dock IDs
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3
Q

What is a visual identification evidence?

A

ID parade evidence.
Or naming the person. Recognition.

In both case, witness says that person IS the culprit.

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4
Q

What is not a visual identification evidence?

A
  1. Did not attend ID parade
  2. Only description evidence
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5
Q

In cases of recognition, how does it relates to Code D ID parade?

A

It useless because witness is bound to select the person he recognises.

The judge will have to give dangers of visual IDs under turnbull!

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6
Q

What if defence stays witness is deliberately lying and he’s not mistaken?

A

Judge still gives a Turnbull direction if there is a possibility of genuine mistake.

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7
Q

How does defence use Pace Code D?

A
  1. Police have breached Pace Code D
  2. Evidence should be excluded under Pace 78
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8
Q

What is the judge decides not to exclude the PACE Code D breach after vior dire?

A

He should generally tell the jury the provisions have been breached and warn them of any potential prejudice caused by the breach.

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9
Q

What if a witness gives dock ID while giving evidence?

A
  1. If there was a ID parade, then no problem.
  2. If there was no ID parade, judge should warn jury giving ID any weight or credibility.
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10
Q

In recognition cases, can there be dock identification?

A

If there was a ID parade, can!

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11
Q

When Turnbull directions must be given?

A

When case wholly or substantially rests on correctness visual identification

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12
Q

Does turnbull direction applies to Magistrates too?

A

Yes

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13
Q

What directions must judge give for Turnbull directions?

A
  1. Warn the jury the special need for caution
  2. If it’s recognition, tell them mistakes can be made with close family members
  3. For all cases (identification + recognition) tell them to examine the circumstances.
  4. Remind the jury weakness in evidence
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14
Q

What the judge have to do before letting the identification evidence go before jury?

A

Assess the quality of the ID evidence must be good. This can be done even without any supporting evidence!

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15
Q

In deciding the quality of ID evidence before it goes to jury, can judge say police officers are more observant than regular people?

A

Yes

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16
Q

What if the quality of ID evidence is poor?

A

The judge should withdraw the case from jury and direct acquittal unless there are other supporting evidences for the ID.

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17
Q

What are examples of poor ID evidence?

A
  1. I am not quite certain
  2. I am 90% sure
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18
Q

What must judge do in relation to supporting evidence for ID evidence?

A

Must identify it for jury.

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19
Q

What are some supporting ID evidences that judge must identify for jury?

A
  1. previous convictions
  2. cell site or phone data at scene
  3. D’s lies
  4. Inference of silence at interview or at trial
  5. Another ID by different witness
20
Q

What is the impact of adequate turnbull direction?

A

Conviction being quashed

21
Q

What evidence can witness give? And what cannot?

A

Evidence of things he perceived. Witness cannot give evidence of opinion.

22
Q

What opinions can non experts give? Examples?

A

Matter that’s not calling for expertise, the witness is doing it to convey facts perceived by her.

Ie: Can say D has be drinking but cannot say whether he was fit to drive!

23
Q

How the competence of experts is examined?

A

Specialised experience, knowledge or study. Self certification not enough.

24
Q

If the competence of expert is issue what the court will do?

A

Vior dire

25
Q

Who decides whether the matter required experts? What if it does’t require.

A

The judge decides it. If it does’t require then it is inadmissible.

26
Q

What kind of evidence judges ruled against?

A
  1. Psychologist cannot give evidence that memory fades over time. Everyone knows that.
  2. Counsellors of victims of sexual crime cannot five evidence whether victim was telling the truth.
27
Q

Is it possible to turn a witness into expert?

A

Can. If a police officer watches a video 40 times again and again.

28
Q

What is the line that experts cannot overstep?

A

They cannot decide on ultimate issue. For example, psychologist can say why opinion can be unreliable but cannot say if it false.

29
Q

What are some duty of expert?

A

Must inform the court and parties if asked things outside expertise or if opinion changed since the report.

30
Q

Who the experts have primary duty duty to?

A

The court.

31
Q

What should be done with the expert evidence? What is it’s uncontradicted?

A

Jury use it to form their own judgement.

It’s wrong to direct the jury to accept the opinion just because it is un-contradicted.

32
Q

What is there is only opinion on one side?

A

Judge can reject the opinion.

33
Q

What are the 2 grounds admissible evidence can be excludes?

A
  1. Privilege against self incrimination
  2. Legal professional privilege
34
Q

What the scope of privilege against self incrimination?

A

Other than Defendant, witness not bound to answer questions if, in opinion of judge, expose witness to criminal charge or penalty.

35
Q

What if the prosecution undertake not to prosecute, does the privilege against self incrimination still exists?

A

Nooooo!

36
Q

Who privilege against self incrimination covers?

A

Only witness himself and not spouse!

37
Q

What are the categories of legal professional privilege?

A

Legal advice privilege
Litigation privilege

38
Q

What is scope of legal advice priviledge?

A

It extends to solicitor too

39
Q

Who can waive legal advice priviledge?

A

The defendant ONLY! After D waives it, lawyer can talk!

40
Q

What is litigation priviledge?

A

Communications between D or lawyer and third parties!

41
Q

When litigation privilege applies?

A

Pending litigation only!

42
Q

When can litigation privilege waived?

A

Same as legal advice privilege

43
Q

When litigation privilege doesn’t apply?

A
  1. Furtherance of offence
    2.
44
Q

What if the lawyer didnt know about the crime or fraud?

A

Doesn’t matter. The privilege doest apply still!

45
Q

Waiver of privilege and s34 adverse inference

A

If D makes a no comment interview AND has evidence for reason for no comment interview.. then can tell the reason without waiving the priviledge.

evidence - crim lit (4 decks)

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