3. Procedures to Admit and Exclude Evidence

Question 1

In what situation must Turnbull guidelines be followed?

Answer 1

When a case wholly or substantially relies on identification evidence and the evidence is disputed by defendant

Question 2

What are the eight ADVOKATE guidelines given to the jury to consider in evaluating the weight of the identification evidence?

Answer 2

• 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

Question 3

When giving a Turnbull warning to the jury at the end of the trial, what three things should the judge do?

Answer 3

1. Warn of special need for caution before convicting based on ID evidence, as mistaken Ws can be convincing
2. Ask jury to consider circumstances in which W identified D
3. Specifically refer to objective weaknesses in the evidence, considering ADVOKATE

Question 4

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?

Answer 4

Putting forward this explanation at trial

Question 5

Can the defendant be convicted on the basis of an adverse inference alone?

Answer 5

No

Question 6

From what can the jury also draw an adverse inference regarding evidence at trial?

Answer 6

Failure to give evidence in your defence at trial, unless physical/mental condition makes this undesirable

Question 7

What is hearsay?

Answer 7

Hearsay arises when evidence is produced in writing or when someone testifies in court to something someone else told them out of court.

Question 8

What are the four categories under which hearsay is admissible?

Answer 8

1. Under statute
2. By rule of law
3. Agreement of all the parties
4. In the interests of justice

Question 9

What are the six categories under which hearsay evidence is admissible under statute?

Answer 9

1. Witness is unavailable
2. Business document adduced
3. Statements were prepared and relevant person cannot recollect
4. Previous consistent or inconsistent statement
5. Expert evidence adduced
6. Confession

Question 10

When is a witness deemed unavailable (5 possibilities)?

Answer 10

1. Dead
2. Unfit due to physical/mental condition
3. Outside UK and not reasonably practicable to return
4. Unable to be found despite steps taken
5. Witness is in fear

Question 11

What are the three requirements for a business document to be adduced in exception to the rule against hearsay?

Answer 11

1. Created/received in the course of trade
2. Person who supplied the information may reasonably be considered to have personal knowledge of the matter, and
3. If the information was received by other persons, it was in the course of trade

Question 12

What are the three categories under which hearsay evidence is admissible by rule of law?

Answer 12

1. Confessions, or statements part inculpatory and part exculpatory
2. Statements made at the time of the event
3. Statements preserved by res gestae

Question 13

What are the three categories of res gestae statements which are admissible in exception to the general rule against hearsay?

Answer 13

Statements:

1. Made when a person is so emotionally overpowered, the idea of fabrication can be disregarded
2. Accompanying an act which can only be properly evaluated with reference to the statement
3. Relating to physical or mental state

Question 14

In deciding whether to admit hearsay evidence in the interests of justice, what nine things must the court consider?

Answer 14

1. Value of the statement in proving a matter
2. Alternate evidence available?
3. Importance of the statement to the case
4. Circumstances in which the statement was made
5. Apparent reliability of the maker of the statement
6. Apparent reliability of the evidence of the statement being made
7. Can oral evidence be given?
8. Difficulty in challenging the statement?
9. Extent of prejudice to D

Question 15

What is multiple hearsay?

Answer 15

Hearsay within hearsay, where statement is relayed through more than one person before getting to court

Question 16

In additions to all parties agreeing and in the interests of justice, what are the two situations in which multiple hearsay will be admissible?

Answer 16

1. Business document
2. Consistent or inconsistent statement

Question 17

What is the definition of confession?

Answer 17

A confession is not limited to an admission in a police interview. It includes any statement wholly or partly adverse to the person who makes it, whether or not made to a person in authority

Question 18

What is required for a confession to be admissible?

Answer 18

It must be relevant to a matter in issue, i.e. it goes to proving or disproving some fact in issue

Question 19

What are the two bases on which the defence can challenge the admissibility of a confession?

Answer 19

1. Mistake, i.e. the listener misheard
2. Untruth

Question 20

In what situations can confessions be challenged based on untruth?

Answer 20

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

Question 21

When the admissibility of a confession is challenged, who bears the burden?

Answer 21

Prosecution must prove beyond a reasonable doubt that the conduct does not apply

Question 22

In what situation does the court have discretion to exclude any evidence offered by the prosecution?

Answer 22

The court can exclude evidence if, considering all the circumstances, the admission of the evidence would have an adverse effect on the fairness of the proceeding

Question 23

What is the high bar to reach before the court will exercise its discretion to exclude prosecution evidence for fairness?

Answer 23

Breaches must be significant and substantial, such that they have rendered the evidence unreliable

Question 24

What are the seven grounds/gateways for admitting bad character evidence?

Answer 24

1. All parties agree to admissability
2. Introduced by the D (e.g.in cross-examination)
3. Important explanatory evidence
4. Relevant to important matter in issue (including propensity to commit similar offences)
5. Matter in issue between co-defendants
6. Correct a false impression given by D
7. D attacked another’s character, or questions a witness intending to elicit such

Question 25

What are the two conditions required for bad character evidence to be admitted as important explanatory evidence?

Answer 25

1. Without it, jury would find it difficult or impossible to properly understand other evidence
2. Its value to understanding the case as a whole is substantial

Question 26

Evidence of what prior offences can be admissible as relevant to important matter in issue?

Answer 26

All offences of the same kind, i.e. that demonstrate a similar kind of behaviour, e.g., bodily harm, dishonesty

Question 27

Only when can bad character evidence showing a propensity for untruthfulness be admissible?

Answer 27

If untruthfulness or dishonesty is part of the offence

Question 28

What is the higher threshold for bad character evidence to be admissible due to a matter in issue between co-defendants (D1 blames D2 for the offence)?

Answer 28

It must have substantial probative value, not just be relevant

Question 29

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?

Answer 29

1. Magistrates Court: 20 business days
2. Crown Court: 10 business days

Defence must object within 10 business days

Question 30

What is true when any of the seven grounds for admitting bad character evidence are made out?

Answer 30

The evidence is admissible

Question 31

To which two grounds does a special procedure apply?

Answer 31

1. Important matter in issue between P and D
2. D attacked another’s character

Question 32

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?

Answer 32

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

Question 33

What is the similar general exclusion which applies to all seven grounds for admitting bad character evidence?

Answer 33

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

Question 34

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?

Answer 34

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

Question 35

When is a defendant entitled to a good character direction from the judge, and what are the two parts of this?

Answer 35

If D has no previous conviction.

The good character direction is made up of the propensity direction and the credibility direction.

Question 36

What is the propensity direction and what is the credibility direction?

Answer 36

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 or during trial.

Question 37

In what additional situation might a defendant receive a good character direction?

Answer 37

If they have previous convictions, but they are old, minor, or not related to the current charge

Question 38

Even if the defendant has no previous convictions, in what situation will a good character direction probably not be available?

Answer 38

If there is other bad character evidence upon which the prosecution relies

Question 39

If there is other bad character evidence upon which the prosecution does not seek to rely, can a good character direction be given?

Answer 39

The judge has discretion to give a direction.