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 Turnball guidlines?

Answer 2

Defence dispute the evidence which Pros is relying upon then Turnball warning is given in summing up

Question 3

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

Answer 3

• 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 4

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

Answer 4

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 5

If judge thinks identification evidence is weak and there is no supporting evidence, what should he do?

Answer 5

He should withdraw the case from the jury and direct acquittal

Question 6

If judge thinks identification evidence is strong enough/ there is supporting evidence to support weak identification, what should they do?

Answer 6

Present the identification evidence to the jury and let them decide

Question 7

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

Answer 7

No

Question 8

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 8

Putting forward this explanation at trial

Question 9

From what can the jury also draw an adverse inference?

Answer 9

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

Question 10

What is hearsay?

Answer 10

An out-of-court statement (not evidence given in court) which is being offered in court as evidence

Question 11

Is hearsay usually admissable?

Answer 11

No

Question 12

What are the four categories under which hearsay is admissible?

Answer 12

1. Under statute
2. By rule of law
3. Agreement of all the parties (the parties all agree to the content of the hearsay statement)
4. In the interests of justice

Question 13

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

Answer 13

1. Person who made the statement which is considered hearsay is not available to give evidence in court
2. The statement was made in a business or professional document which has been cited as evidence
3. Where statements were previously prepared and the relevant person cannot recollect what they said
4. Where the statement is consistent or inconsistent with a previous statement
5. The statement was made by an expert which has been cited as evidence
6. Confession

Question 14

When is a witness deemed unavailable?

Answer 14

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 15

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

Answer 15

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

Question 16

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

Answer 16

1. Confessions, or statements part inculpatory and part exculpatory (suggest guilt and don’t suggest guilt)
2. Statements made at the time of the event
3. Statements preserved by res gestae- statements made spontaneously

Question 17

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

Answer 17

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 18

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

Answer 18

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 19

What is multiple hearsay?

Answer 19

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

Question 20

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 20

1. Business document
2. Consistent or inconsistent with other statements

Question 21

What is the definition of confession?

Answer 21

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

Question 22

What is required for a confession to be admissible?

Answer 22

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

Question 23

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

Answer 23

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

Question 24

In what situations can confessions be challenged based on untruth?

Answer 24

If obtained by oppression likely to render the confession unreliable, and the defence can

1. Show a causal link between the conduct and the confession and
2. The confession would not otherwise have been made independently

Question 25

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

Answer 25

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

Question 26

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

Answer 26

If it appears, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding

Question 27

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

Answer 27

Breaches [of fairness] must be significant and substantial, such that they have rendered the evidence unreliable

Question 28

What is bad character evidence?

Answer 28

Evidence of, or a disposition towards misconduct; other than evidence which has to do with the alleged facts of the offence with which the defendant is charged

Question 29

What are the seven grounds for admitting bad character evidence?

Answer 29

1. All parties agree
2. Evidence introduced by defendant (don’t need to intend this)
3. Important explanatory evidence
   - value to understanding case as whole is important
4. Relevant to important matter in issue between pros and def
   - offences are of the same kind
5. Relates to a matter in issue issue between co-defendants
   - Can’t just be relevant- must have substantative probative value
6. Correct a false impression given by D
7. D attacked another’s character (e.g. accusing the police of misconduct), or questions a witness intending to elicit such

Question 30

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

Answer 30

If untruthfulness or dishonesty is part of the offence

Question 31

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 31

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

Defence must object within 10 business days

Question 32

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

Answer 32

The evidence is admissible

Question 33

To which two grounds does a special procedure apply?

Answer 33

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

Question 34

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 34

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 35

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

Answer 35

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 36

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 36

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 37

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

Answer 37

If D has no previous conviction.

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

Question 38

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

Answer 38

Propensity direction: Person of good character is less likely to have committed an offence. (tendancy/ inclination)

Credibility direction: Person of good character is more likely to be credible when they assert their innocence before of during trial.

Question 39

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

Answer 39

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

Question 40

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

Answer 40

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

Question 41

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

Answer 41

The judge has discretion