Admissibility Flashcards
Concept
Determines whether a certain piece of evidence a party wishes to present in court may be presented or may not be presented. Most evidence is admissible, only declared inadmissible if gathered or obtained in an unfair way.
It is a question for the judge.
Irrelevant or Collateral Evidence
In theory all irrelevant or collateral evidence is inadmissible. If it’s not picked up by the Judge it could still be lead.
A v B - Better not to confuse the Jury on something that only has an indirect bearing.
3 reasons it may be inadmissible
1) May be deemed irrelevant
2) Too much of a distraction
3) Waste of court time
CJM v HM Advocate - false claim of sexual assault irrelevant
Contravenes best evidence rule
Requires primary evidence of the best quality. Statement of common sense, however it can be insisted upon if:
Risk of prejudice to one of the parties
It is not inconvenient or impractical
Actually producing the weapon not a picture
Inconvenient/Impractical to insist on best evidence - Anderson v Laverock - Fish
Documents - Nocher v Smith
Kelly v Allan - Held no material prejudice despite motorcycle
Hearsay
It is what another person has said or expressed, it also applies to documents also if witness details report they haven’t written.
General rule - Any assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted Morrison v HM Advocate
Why is hearsay inadmissible
Art 6(3)d Everyone charged with a criminal offence has minimum rights: to examine or have examined witnesses against him
Rule against hearsay
Very old, It is not the best evidence and is not delivered on oath. Truthfulness and accuracy of the person whose words are spoken to by another cannot be tested by cross-examination - Teper v R
Primary hearsay
Admissible, original evidence. Assertion or statement counts as primary hearsay when the purpose is simply to establish whether the statement was in fact made.Can only be used for credibility/reliabilty in regards to the witness.
Reasons to introduce -
Undermine credibility of another witness
Establish that a certain state of affairs exists relevant to proving or denying the charge
Assist in establishing compliance with a procedural requirement
Secondary Hearsay
Inadmissible. An assertion or statement when the purpose is to establish the truth of what is contained in the statement counts as secondary hearsay when the purpose is to establish the truth of what is contained in the statement.
Exceptions to general hearsay rule
Res Gestae - It is a statement made contemporaneously with an action or event which then from part of the fact in issue, by a person present at that action or event. It is Whole circumstances immediately and directly connected with an occurrence which is part of the facts in issue.
They need to be part of the thing being done Teper v R
Scope - Exception covers words, exclamations and physical reactions
2) Not limited to those involved in the incident, can also apply to onlookers
Latitude of time that the court will allow when deciding whether words or exclamations form part of res gestae. It is dependant on the case, and that there are some circumstances in which a statement can be held to be res gestae if it is not exactly contemporaneous with the event.
Cinci v HM Advocate - He raped me not part of res gestae. Narrow
O’Shea v HM Advocate - Witness saw woman say my man’s down there, held to be res gestae
De Recenti - After the incident, but cannot be admitted as proof
Unfairly gained evidence
Fairness as the guiding principle:
Lawrie v Muir - Balancing act between the interests of the accused and interests of the state must be carried out to determine which is FAIR
Unfairly obtained Real/Documentary evidence
Searches (Person/property)
1) Was there a search in the first place? Mackintosh v Stott - No search, accused handed over drugs
Graham v Orr - checking car constituted a search
Cafferkey & Frew v HM Advocate - Tub search, nope
Authority to search
Reasonable cause test - Miller v Jamieson - Reasonable cause need not be precise
Houston v Carnegie - Reasonable if seen in company of not reasonable
Required when there is a search of premises.
Usually when there is a search of a premises
Freeburn v HM Advocate - A warrant will not be required if a suspect gives permission for a search to be carried out
Warranties - Defective - HM Advocate v Cumming
Exceeded - Burke v Wilson
Wrong Premises - McAvoy v Jessop
Role Urgency - HM Advocate v Baillie
Confession Evidence
Confession unfairly obtained will not be admissible. Due to the special nature police may bend rules to get them. Leading test is fairness.
HM Advocate v Muir - Must be truly spontaneous and voluntary, given freely and not in response to pressure and inducement. Fairness
Common law on confessions
Chalmers v HM Advocate - 1) Investigation before suspicion falls, any question can be asked
2) When suspicion crystallises on individual, the rules of fairness kick in to protect the individual. Difficulty arises here. Interrogation and cross examination. Leading or repetitive questioning, Codona v HM Advocate - 14 year old asked restively
Mitchell v HM Advocate - Will hadn’t been broken so some statements were admissible
Caution - Right to remain silent, anything said might be used as evidence at a future trial. Not always required Miln v Cullen - Drunk driving
Not all officials need to give caution - Mitchell v HM Advocate
Lack of caution can be fatal - HM Advocate v Auld
3) Following charge, questioning in prohibited
Confession fairness
Mental disorder - HMA v Gilgannon - Attempted rape,, found mentally abnormal
Physical State - McLory v McInnes
Thomson v HM Advocate - Drunk so drunk you don’t know what you’re saying
Age - Younger suspect more protection
