2.6 Criminal Litigation - Evidence Flashcards
What is required for visual identification?
Turnbull Guidelines (W identifies D)
- W picks out D informally (street identification)
- W picks out D formally (police stn identification)
- W claims recognising D as someone previously known to him
Quality of evidence (by judge) (ADVOKATE)
- Amount of time under observation
- Distance (W + D)
- Visibility (light/dark)
- Obstruction (traffic/trees/people)
- Known/Seen by W before
- Any reason to remember D? (distinctive features)
- Time lapse (since W saw D + identification)
- Error/Material discrepancy (1st vs 2nd descriptions; W’s description vs D’s actual appearance)
How is good/poor quality visual identification evidence handled?
Good quality
1) Judge > Special warning (Turnbull warning) > Jury
2) Judge should ensure jury;
- Aware of danger of mistaken identity
- Understand convincing W may be honestly mistaken
- Examine closely identification circumstances
Poor quality
- Withdraw case from jury
- UNLESS other supporting evidence vs D > Judge allows jury to decide/Give Turnbull warning pointing out specific weaknesses based on evidence quality
Magistrates’ court
- Good quality/Poor quality but supported by other evidence => D’s solicitor addresses issue re evidence in closing submissions
- Poor quality => D’s solicitor submits no case to answer
What are adverse inferences drawn from silence?
1) Custody officer questions D at police stn => D does NOT respond (silence)
2) D relies on facts not mentioned at police stn during trial => Judge may draw adverse inference from D’s silence at police stn
- D has NO credible explanation > Adverse inference
- D mentioned defence not mentioned before => NOT adverse inference
- Other evidence used => Prima facie case required (inference not enough)
When may adverse inferences be drawn?
Caution
Interview/Charge
- Questioning (D not leave cell for interview > NO inference (NO questioning) > Officer must enter cell to conduct interview)
- Charged (Officer questions D > D’s silence > NO inference (rare))
Facts later relied on > D’s defence > Consider other factors
- Very early admission => Sentence discounts > NO inference
- D NOT prosecuted, but cautioned
Reasonable to remain silent
a) Disclosure + evidence strength
- Solicitor usefully could not advise D > NO inference
- NO statement from police to D > NOT good reason to advise D to remain silent > Inference
b) Nature of case
- Complex/Historic allegation evidence > Reasonable not to answer qs > NO inference
c) D’s condition/circumstance > D not mention facts relied upon (time of day, age, expense, mental capacity, health state, tiredness) > NO inference
d) Legal advice to remain silent > NO inference
NOT account for objects/substances/marks/presence > Particular location (scene/vicinity of offence) => Inference drawn
- Constable’s arrest
- Objects etc found where offence took place
- Arresting officer reasonably believed objects etc in place > May be attributable to committing offence
- Constable specifies offence
- Constable informs D re suspicion + requests D to account for objects etc
- Constable > Special warning (Legal effects of D’s lack of explanation) > D
What is hearsay?
1) W > Oral statement > D
2) D > Statement > Court
- Matter stated
3) Tribunal of fact relies upon statement > Prove matter stated
What is the procedure for admitting hearsay evidence?
1) Reliance on hearsay exceptions/multiple hearsay
2) Notice to Court + opponent
CPS sends notice;
- Within 28 days of D’s not guilty plea (case heard at MC)
- Within 14 days (case heard at CC)
What are the grounds for admitting hearsay under s. 114(1) CJA 2003?
CJA 2003/Other statutory rule
Common law rule (s. 118)
All parties agree
Court satisfied > Interests of justice
What are the grounds for admitting hearsay under s. 9 CJA 1967?
1) Statement read in court
2) W’s presence NOT required
3) Statement purports to be signed by maker
4) Maker’s declaration believing statement is true to best of knowledge and belief => Contained
5) Copy of statement > Other parties (before hearing)
6) NO objections within 7 days of receiving statement
7) W’s age < 18yo => Contained
What are the grounds for admitting hearsay under s. 10 CJA 1967?
Any fact (of which oral evidence may be given in criminal proceedings) => Admissible for purpose of proceedings by CPS/D
Admission
- Before/At hearing
- In writing + signed by Individual
- Made on Co’s behalf > Signed by D/manager/secretary
- Made on Individual’s behalf > By lawyer
- Made before trial > By individual + Approved by lawyer
What are the grounds for admitting hearsay under common law?
Public docs
Res gestae
- Statement maker was emotionally overpowered by event > Possibility of concoction/distortion is disregarded
- Statement accompanied act properly evaluated as evidence only if considered in conjunction with statement
- Statement > Physical sensation/Mental state (intent/emotion)
D’s confessions
- Given vs D to extent relevant to issue concerned
- NOT excluded by court under this section
Parties’ agreement > Admission
What are the grounds for admitting hearsay where W is not available?
1) Relevant person is identified to court’s satisfaction
2) Court ought to admit evidence (NO discretion)
- Relevant person is dead
- NOT fit as W (bodily/mental condition)
- Outside UK + NOT reasonably practicable to secure attendance
- Can NOT be found (reasonably practicable steps to find were taken)
- Fear of NOT giving oral evidence (death/injury/financial loss) + Court gives leave for statement given in evidence (based on contents of statement/admission of evidence would cause unfairness to party/directions towards special measures for giving evidence could be made/other relevant circumstances)
What are the grounds for admitting hearsay as business documents?
Statement/Oral evidence re statement > Admissible
1) Either
- Ordinary business docs
- Docs prepared for pending/contemplated criminal proceedings OR during criminal proceedings
2) Doc/Part containing statement > Created/Received by person in course of trade/business/profession/other occupation/holder of paid or unpaid office
3) Person supplying info (Relevant Person) > Had/May reasonably be supposed to have had personal knowledge of matters dealt with
4) Each person through whom info supplied from Relevant Person to Creating/Receiving Person received info in course of trade/business/profession/other occupation/holder of paid or unpaid office
What are the grounds for admitting hearsay as business documents made in contemplation of criminal proceedings?
Unavailable W
1) Relevant person is identified to court’s satisfaction
2) Court ought to admit evidence (NO discretion)
- Relevant person is dead
- NOT fit as W (bodily/mental condition)
- Outside UK + NOT reasonably practicable to secure attendance
- Can NOT be found (reasonably practicable steps to find were taken)
- Fear of NOT giving oral evidence (death/injury/financial loss) + Court gives leave for statement given in evidence (based on contents of statement/admission of evidence would cause unfairness to party/directions towards special measures for giving evidence could be made/other relevant circumstances)
Supplier of info can NOT reasonably be expected to have recollection of matters dealt with
UNLESS court is satisfied re statement’s reliability as evidence for purpose for which it is tendered is doubtful => Excluded (based on);
- Contents
- Source of info contained inside
- Method of creating/supplying/receiving info
What are the grounds for admitting hearsay in the interests of justice (catch all provision)?
1) Other tests NOT satisfied
2) Party seeking to adduce evidence > Prove interest of justice
3) Fact-sensitive decision > NO CoA interference
- UNLESS judge’s decisio > Wrong/Perverse/Unreasonable
4) Factors
- Probative value
- Importance of matter
- Circumstances > Making statement
- Reliability of statement maker/evidence
- Whether oral evidence can be given
- Difficulty > Challenging statement/Likely prejudicing party facing it
What are the grounds for admitting multiple hearsay?
NOT admissible to prove earlier hearsay statement was made UNLESS
- Either statement is admissible (business doc/inconsistent statements/previous W statements)
- ALL parties’ agreement
- Court is satisfied > Value of evidence is so high > Interest of justice require later statement as admissible for that purpose
What is a confession?
Statement made by X > Adverse (wholly/partly) to X
- To person in authority or not
- In words/otherwise
When are confessions admissible?
Use as evidence vs X/co-accused (s. 76)
- Relevant to any matter in issue
- NOT excluded by court
‘Hearsay’ BUT admissible vs X
How may confessions be challenged under section 76 PACE 1984?
Oppression
- Torture/Inhuman or degrading treatment
- Threat/Use of violence
- Police interrupted D before replying/raised voice to shout rudely
- Police’s obscene language > Interrupt D > Show he’s lying
Unreliability
- Police’s actions/words + Officers giving bail inducements/charged with less serious offences/police officers breaching PACE
- Oppression/Thing said or done has causal link to confession
- NO need for deliberate impropriety on police’s part for confession unreliable
How may confessions be excluded under section 78 PACE 1984?
Admission of evidence > Adverse effect on fairness of proceedings => Court ought NOT to admit it
Prejudicial effect > Probative value
- Common law discretion > Exclude evidence
What is character evidence?
Assess W credibility
Good character > Positive effect
Bad character > Negative effect
How can good character be introduced?
D’s assertion
- Give evidence themselves
- Call Ws to give evidence
- Cross-examine CPS witnesses
=> D’s credibility (untruthfulness)
=> Unlikelihood of D committing offence
=> NOT defence to charge
NOT W’s good character
How can D’s bad character be introduced?
Evidence of ‘previous misconduct’
- Convictions
- Cautions
- Acquittals
- Disciplinary history of work
- Misconduct outside formal framework
Sex offence charge
- Court leave > Cross-exam
How can W’s bad character be introduced?
Important explanatory evidence
Substantial probative value re issue + substantial importance re case
All parties’ agreement
=> Prescribed form > Court + Parties
- Within 14 days after CPS discloses
What are the 7 gateways of adducing D’s bad character?
a) All parties’ agreement
- CPS + D agree evidence between each other > Previous conviction can be read at trial
- D adduces evidence
b) D/Answer to cross-examine + intent to use > Adduce evidence
c) Important explanatory evidence
- Substantial value > Understand case as a whole
- ‘Motive’ > Sex kidnapping/Murder
- Otherwise court/jury would found impossible/difficult to properly understand other evidence
d) Relevant to important matter in issue between CPS + D
- NOT facts of offence
- Demonstrate P’s propensity to commit such offence
=> D’s previous convictions > Same description/category as D’s charge > Untruthfulness (perjury/fraud)
- Dishonest convictions vs Offences telling lies
- D plead NOT guilty vs Evidence disbelieved by jury
BUT safeguards > NOT admit (not just due to elapsed time/adverse effect towards fairness of proceedings)
=> Court to exercise exclusion powers
- Previous convictions were ‘spent’
- Previous convictions > Jury likely to convict based on convictions
- Previous convictions > More prejudicial/Less probative
- Previous convictions > Used to bolster weak case (because other evidence is weak)
e) Important matter between D + Co-D
- Co-Ds > Against Co-D (directly/indirectly)
- Ws > Probative element is high (NOT trivial)
- CPS > Can NOT use
f) Evidence used to correct D’s given false impression (attack on another’s character before/during trial)
- Admissible => Correct impression only
- BUT safeguards > D can withdraw/dissociate from D’s assertions
g) D attacks another’s character
- Direct > Other person > Committed different offence vs D’s charge/Behaved in reprehensible way
- Indirect > D’s lawyer cross-examines CPS witness
