Chap 10, 11( Preliminary Evidential Matters and the Burden and standard of proof factsheet

Question 1

What are the forms evidence can take form of?

Answer 1

1) oral testimony of witness to the production of physical objects such as weapons used in assaults

Question 2

What does the tribunal of fact do in criminal cases?

Answer 2

The tribunal of fact is the person or persons who decide which version of facts should be accepted and used to base the decision of the court upon.

Question 3

What does the tribunal of law do?

Answer 3

The tribunal of law is the person or persons who make decisions about how the law should apply when making decisions about a criminal case.

Question 4

How does a MC have its decision makers?

Answer 4

In the magistrates’ court decisions will be made by either a bench (usually 3) of lay magistrates or a professional judge (District Judge) sitting alone.

They have to make decisions about fact and law and are therefore, said to be both the tribunal of fact and law

MC will reciveve advice from the court legal adviser about the law and practice will normally accept this, but ult decision is for them to take

Question 5

What are the issues in MC when having to decide both fact and law?

Answer 5

• it can cause disputes about the admissibility of evidence

Question 6

What is the diffrence in CC?

Answer 6

In a trial of indictment the JURY ARE TRIBUNAL OF FACT and the judge is tribunal of law

The jury must make all of the factual decisions, such as weighing up the credibility of witnesses, assessing the significance of certain pieces of evidence and so on.

Question 7

However, there are some occasions where the judge must make factual decisions

Answer 7

An example might be if there is a dispute about the admissibility of evidence the judge may have to hear evidence and make factual decisions before making a legal ruling. Most obvious example of this is with confession evidence

Question 8

What are “preliminary facts” in the context of admissibility decisions?

Answer 8

Preliminary facts refer to evidence about how certain evidence was obtained, which the judge considers when deciding admissibility.

Question 9

What is a Newton hearing?

Answer 9

A Newton hearing occurs when there is a dispute about the factual basis for sentencing. The judge hears evidence and decides which version of events to accept.

Question 10

How does a judge handle abuse of process applications?

Answer 10

The judge hears evidence and makes factual determinations before deciding whether to allow the case to proceed.

Question 11

What happens when the defence makes a submission of no case to answer?

Answer 11

The judge decides if the evidence is so weak or tenuous that no reasonable jury could convict, and may dismiss the case.

Question 12

What elements for ABH

Answer 12

1) Assault
2) Intentionally or recklessly delivered
3) Therby ocassioning
4) Actual bodily harm

Have to prove AR and MR

IF P fails to prove one or more elements then the whole case fauls

The D can raise the Defence of self defence to charge of assault. This would also be a fact in issue in this context a fact that the tribunal of facts has to resolve in order to make a decision about the case.

Question 13

What are collateral facts and how are they treated in court?

Answer 13

Collateral facts relate to secondary issues, such as a witness’s credibility.

To prevent trials from being sidetracked, the “rule of finality on collateral matters” limits how far parties can go in questioning and presenting evidence on these issues

Question 14

What is circumstantial evidence?

Answer 14

Circumstantial evidence is evidence that requires the tribunal of fact to draw an inference—a common-sense conclusion based on the evidence presented.

ex:

Question 15

Rmbr that circumstantial evidence can be compelling as direct evidence

Question 16

What is the diffrence between direct and circumstantial evidence in a robbery case?

Answer 16

Direct evidence is when a witness directly sees the crime, such as a defendant pointing a gun at a cashier and taking money.

Circumstantial evidence requires inference, like seeing the defendant running from a bank with a gun and a bag of money after an alarm sounds.

Question 17

Rmbr in criminal case, the burden of proof falls on the D and they have to prove that without reasonable doubt the D is guilty

Question 18

Rmbr that the P has to prove the legal burden and the evidential burden

But there are exceptions to this

Answer 18

Yes, in some cases, the defence has the legal burden to prove their defence.

Example: If D is charge of a motor vehicle while driving over legal limit in alcohol:

Being in charge of a vehicle while over the alcohol limit (s5(2) RTA 1988) – The defendant must prove there was no likelihood of driving while over the limit.

Question 19

Ex for self defence the D has the evidential burden placed on them to adduce sufficient evidence to raise the issue

Answer 19

The prosecution must then disprove the defence. In other words, on the issue of self-defence there is an evidential burden on the defence to adduce sufficient evidence to raise the issue but the legal burden to disprove the defence remains on the prosecution.

Question 20

How do judges explain the standard of proof in criminal cases? ( beyond reasonable doubt) to the jury

Answer 20

nstead of saying “beyond reasonable doubt,” judges now instruct juries that they must be sure of the defendant’s guilt before convicting. This is simply a different way of expressing the same standard.

Question 21

What are the judges role in thinking whether the evidence is important as don’t want to confuse tribunal of fact

Answer 21

The judge has job to ensure effective case management meaning that the judge is under an obligation to keep the trial within proper bounds

The judge THERFORE CAN STOP EVIDENCE GOING BEFORE THE JURY ( AND MC CAN REFUSE TO HEAR IT) if he concludes that its not relevant to the case.

Question 22

rmbr Relevance and weight of and evidence should be distinguished

Answer 22

To be admissible evidence must be relevant to the issues that the court has to resolve in the case, but the strength or weight of that evidence is a different matter.

Question 23

What makes evidence admissible, and what is probative value?

Answer 23

Evidence must be “relevant” to be admissible, but its weight determines how strongly it proves or disproves a fact. The combination of relevance and weight is called probative value.

Question 24

Alternatively a piece of evidence may be relevant but weak and, therefore have a lower probative value.

Question 25

What are the forms of evidence

Answer 25

1) Oral evidence from witness ( testimony) 2) written statements read to the court 3) physical objects( real evidence) 4) maps 5) videos, DVD, audio tapes

Question 26

What is an admission in legal proceedings?

Answer 26

An admission is when both parties agree that a fact is not in dispute. It is written, signed, and read to the jury, eliminating the need for formal evidence on that fact.

Question 27

hen is evidence inadmissible in court?

Answer 27

All relevant evidence is generally admissible unless a rule of evidence excludes it. Judges also have discretion to exclude evidence that would otherwise be admissible.

Question 28

When can a judge exclude evidence in court?

Answer 28

1)A judge can exclude evidence if its prejudicial effect outweighs its probative value, meaning it could unfairly influence the court without strongly proving a fact. This rule was often used to prevent juries from hearing about a defendant’s previous convictions before changes in the CJA 2003. 2) Discretion to "exclude unfairly obtained evidence under s78 PACE." 3) Discretion to exclude "confession evidence under s76 PACE." 4)Other specific statutory discretions, eg under s101(3) CJA 2003 and s126 CJA 2003. 5)Common law discretion to exclude evidence retained by s82(3) PACE. This is a general discretion given to judges to exclude evidence.

Question 29

IMPL Judge can stop evidence using s.76 and 78 what are they?

Answer 29

Discretion to "exclude unfairly obtained evidence under s78 PACE." Discretion to exclude "confession evidence under s76 PACE."

Question 30

What is a voir dire in the Crown Court?

Answer 30

A voir dire is a hearing where the judge decides on the admissibility of evidence in the absence of the jury. If the evidence is excluded, the jury will not hear it, preventing any potential prejudice. In CC this will be the judge who normally send the jury of the court, when points of admissibility are being argued In MC more complicated, as MC are both judge of fact and law, if they decide that piece of evidence is inadmissible they still go on to hear they case and try and put the inadmissable evidence out of their mind

Question 31

Why is a voir dire conducted in the absence of the jury?

Answer 31

To ensure that if the judge excludes the evidence, the jury never hears it, avoiding any prejudice

Question 32

Why is admissibility more complex in the magistrates’ court?

Answer 32

Because magistrates act as both judges of law and fact, they must decide on admissibility and still go on to hear the case—potentially having to disregard evidence they've already heard.

Question 33

What issue arises if magistrates exclude evidence but have already heard it?

Answer 33

They must try to put the inadmissible evidence out of their minds, which carries a risk of unconscious prejudice.

Question 34

: As defence counsel, what should be considered regarding court choice in an either-way offence?

Answer 34

If there is a substantial admissibility issue, it may be better to advise the client to elect Crown Court trial (if jurisdiction is accepted), to avoid risk of prejudice by magistrates hearing inadmissible evidence.

Question 35

How have some magistrates’ courts addressed the risk of prejudice from hearing inadmissible evidence?

Answer 35

Some now have a separate admissibility hearing presided over by a District Judge, isolating the decision from the trial magistrates.