3. Procedures to Admit and Exclude Evidence Flashcards
In what situation must Turnbull guidelines be followed?
When a case wholly or substantially relies on identification evidence and the evidence is disputed by defendant
What are the eight ADVOKATE guidelines given to the jury to consider in evaluating the weight of the identification evidence?
- Amount of time for which the witness observed the suspect
- Distance between W and S
- Visibility at the time
- Obstruction between W and S?
- Known or unknown (S to W)
- Any particular reasons to remember
- Time lapse between incident and ID
- Errors in W’s first description
When giving a Turnbull warning to the jury at the end of the trial, what three things should the judge do?
- Warn of special need for caution before convicting based on ID evidence, as mistaken Ws can be convincing
- Ask jury to consider circumstances in which W identified D
- Specifically refer to objective weaknesses in the evidence, considering ADVOKATE
Can the defendant be convicted on the basis of an adverse inference alone?
No
What actually triggers the adverse inference drawn from not mentioning (at arrest, questioning, or charge) something which defendant could reasonably have been expected to mention?
Putting forward this explanation at trial
From what can the jury also draw an adverse inference?
Failure to give evidence in your defence at trial, unless physical/mental condition makes this undesirable
What is hearsay?
Statement, not made in oral evidence, relied on as evidence of the matter of the statement
What are the four categories under which hearsay is admissible?
- Under statute
- By rule of law
- Agreement of all the parties
- In the interests of justice
What are the six categories under which hearsay evidence is admissible under statute?
- Witness is unavailable
- Business document adduced
- Statements were prepared and relevant person cannot recollect
- Previous consistent or inconsistent statement
- Expert evidence adduced
- Confession
When is a witness deemed unavailable?
- Dead
- Unfit due to physical/mental condition
- Outside UK and not reasonably practicable to return
- Unable to be found despite steps taken
- Witness is in fear
What are the three requirements for a business document to be adduced in exception to the rule against hearsay?
- Created/received in the course of trade
- Person who supplied the information may reasonably be considered to have personal knowledge of the matter, and
- If the information was received by other persons, it was in the course of trade
What are the three categories under which hearsay evidence is admissible by rule of law?
- Confessions, or statements part inculpatory and part exculpatory
- Statements made at the time of the event
- Statements preserved by res gestae
What are the three categories of res gestae statements which are admissible in exception to the general rule against hearsay?
Statements:
- Made when a person is so emotionally overpowered, the idea of fabrication can be disregarded
- Accompanying an act which can only be properly evaluated with reference to the statement
- Relating to physical or mental state
In deciding whether to admit hearsay evidence in the interests of justice, what nine things must the court consider?
- Value of the statement in proving a matter
- Alternate evidence available?
- Importance of the statement to the case
- Circumstances in which the statement was made
- Apparent reliability of the maker of the statement
- Apparent reliability of the evidence of the statement being made
- Can oral evidence be given?
- Difficulty in challenging the statement?
- Extent of prejudice to D
What is multiple hearsay?
Hearsay within hearsay, where statement is relayed through more than one person before getting to court
In additions to all parties agreeing and in the interests of justice, what are the two situations in which multiple hearsay will be admissible?
- Business document
- Consistent or inconsistent statement
What is the definition of confession?
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
What is required for a confession to be admissible?
It must be relevant to a matter in issue, i.e. it goes to proving or disproving some fact in issue
What are the two bases on which the defence can challenge the admissibility of a confession?
- Mistake, i.e. the listener misheard
- Untruth
In what situations can confessions be challenged based on untruth?
If obtained by oppression or by things said or done likely to render the confession unreliable, and the defence can show a causal link between the conduct and the confession and the confession would not otherwise have been made independently
When the admissibility of a confession is challenged, who bears the burden?
Prosecution must prove beyond a reasonable doubt that the conduct does not apply
In what situation does the court have discretion to exclude any evidence offered by the prosecution?
If it appears, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding
What is the high bar to reach before the court will exercise its discretion to exclude prosecution evidence for fairness?
Breaches must be significant and substantial, such that they have rendered the evidence unreliable
What are the seven grounds for admitting bad character evidence?
- All parties agree
- Evidence adduced by D
- Important explanatory evidence
- Relevant to important matter in issue (including propensity to commit similar offences)
- Matter in issue between co-defendants
- Correct a false impression given by D
- D attacked another’s character, or questions a witness intending to elicit such
What are the two conditions required for bad character evidence to be admitted as important explanatory evidence?
- Without it, jury would find it difficult or impossible to properly understand other evidence
- Its value to understanding the case as a whole is substantial
Evidence of what prior offences can be admissible as relevant to important matter in issue?
All offences of the same kind, i.e. that demonstrate a similar kind of behaviour
Only when can bad character evidence showing a propensity for untruthfulness be admissible?
If untruthfulness or dishonesty is part of the offence
What is the higher threshold for bad character evidence to be admissible due to a matter in issue between co-defendants?
It must have substantial probative value, not just be relevant
If the prosecution wishes to introduce bad character evidence, within how long of entry of a not guilty plea must notice be served in (1) the Magistrates Court and (2) the Crown Court?
- Magistrates Court: 20 business days
- Crown Court: 10 business days
Defence must object within 10 business days
What is true when any of the seven grounds for admitting bad character evidence are made out?
The evidence is admissible
To which two grounds does a special procedure apply?
- Important matter in issue between P and D
- D attacked another’s character
What is the special procedure for admission when the ground for admitting bad character evidence is either important matter in issue between prosecution and defence
or defendant attacked another’s character?
If the defendant makes an application to exclude, the court must not admit it if it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings, that they must not do so
What is the similar general exclusion which applies to all seven grounds for admitting bad character evidence?
The court may refuse to admit evidence for the same reason: if it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings, that they must not do so
Therefore, what is the difference between the adverse effect relief available generally, and in the two specific instances of important matter in issue between prosecution and defence
or defendant attacked another’s character?
Generally: When there would be an adverse effect on the fairness of the proceedings, court may refuse to admit the evidence
Two specific grounds: When there would be an adverse effect on the fairness of the proceedings, court must refuse to admit the evidence, if D applies
When is a defendant entitled to a good character direction from the judge, and what are the two parts of this?
If D has no previous conviction.
The good character direction is made up of the propensity direction and the credibility direction.
What is the propensity direction and what is the credibility direction?
Propensity direction: Person of good character is less likely to have committed an offence.
Credibility direction: Person of good character is more likely to be credible when they assert their innocence before of during trial.
In what additional situation might a defendant receive a good character direction?
If they have previous convictions, but they are old, minor, or not related to the current charge
Even if the defendant has no previous convictions, in what situation will a good character direction probably not be available?
If there is other bad character evidence upon which the prosecution relies
If there is other bad character evidence upon which the prosecution does not seek to rely, can a good character direction be given?
The judge has discretion
