Chapter 7: Procedures to Admit and Exclude Evidence Flashcards
Does a defendant need to prove their innocence?
No, the prosecution must prove that the defendant is guilty
What will happen if the defence manage to cast reasonable doubt on any element of an offence allegedly committed?
The defendant must be acquitted
If a case wholly or substantially relies upon identification evidence which is disputed by the defendant, what must happen?
The Turnbull Guidelines should be followed
What is the Turnbull Guidelines?
Rules to guide Judges and Magistrates who are dealing with contested identification during the course of a trial:
A - Amount of time witness observed suspect
D - Distance between witness and suspect
V - Visibility at the time of the observation
O - Obstruction between witness and suspect
K - Known or unknown to witness
A - Any reason to remember suspect
T - Time lapse between incident and identification
E - Errors in witness’ first description and defendant’s appearance
What should a judge do if they consider identification is weak and there is no supporting evidence?
Withdraw the case from the jury and direct acquittal
What can the defence do if witness evidence has been submitted which they contest?
Seek to undermine the quality of identification evidence in cross examination by going through the factors set out in ADVOKATE
What is a Turnbull Warning?
A warning that the judge must give to a jury at the end of a trial when identification evidence has been admitted:
- Warning that mistaken witnesses can be convincing
- Judge should ask jury to consider circumstances in which witness identified defendant; and
- Refer to weaknesses considering factors set out in ADVOKATE
In which three circumstances can a judge or jury draw an adverse inference from a defendant’s silence?
- Defendant puts forward new facts at trial which were not mentioned when the defendant was charged
- Defendant fails to put forward evidence at trial
- Defendant fails to account for object, substance or mark found on them, their clothing or footwear at the time of arrest
- Defendant fails to account for their presence at the crime scene
In which two circumstances will evidence be considered hearsay?
- When evidence is produced in writing e.g. Evidence in chief
- Someone testifies in court to something someone else told them
Hearsay is only admissible if it falls under one of four categories. What are these categories?
- Admissible under statute
- Admissible by the rule of law
- Admissible by agreement of all parties
- Admissible in the interests of justice
When will hearsay be admissible under statute?
- Witness is unavailable because they are dead, unfit, outside the UK and it is not practicable to secure their attendance
- A business document
- Statements were prepared for use in criminal proceedings and the relevant person cannot be expected to recollect the matter
- Statements are earlier consistent or inconsistent statements of a witness
- Statements are expert evidence
- Statement is a confession
When will hearsay be admissible under the rule of law?
Statements a witness heard which were made at the time of the offences
Statements preserved by res gestae i.e.:
- Statements made when a person is so emotionally overpowered by an event, that the possibility of concoction can be eliminated
- Statements relating to physical evidence
Multiple hearsay occurs when a statement has been relayed through more than one person. In which three circumstances will this be admissible?
- It is a business document
- It supports or conflicts with a witness’ in court testimony
- The value of the evidence is so high that it is in the interests of justice
What is inculpatory evidence?
Evidence indicating the guilt of a person
What is exculpatory evidence?
Evidence indicating the innocence of a person
What is a confession?
A statement which is wholly or partially adverse to the person who made it
Does a confession need to be made to a person in authority?
No, it is irrelevant whether the confession was made to a person in authority
Can a mixed statement be regarded as a confession? E.g. “I hit them, but it was only in self-defence”
Yes, a mixed statement can be regarded as being a confession
In what circumstances will a confession be admissible?
When it is relevant to a matter in issue i.e. it goes to proving or disproving some fact in issue between the prosecution and the defence
On what grounds can the defence challenge the admissibility of a confession?
A confession can be challenged on the basis of oppression or unreliability
What must the prosecution do if the admissibility of a confession is challenged?
Show beyond reasonable doubt that neither oppression nor things said or done render the confession unreliable. If the prosecution is unable to do so, the confession must be excluded
Is a court required to exclude evidence of a confession if it is shown to be based on oppression or unreliability due to things said or done?
Yes, exclusion is mandatory if any of these reasons is present
In Crown Court, who decides whether a confession is admissible?
A judge in the absence of a jury as a matter of fact rather than law. AKA voir dire hearing The jury will not know of the matter or informed of the outcome
In the Magistrates’ Court, who decides whether a confession is admissible?
The bench will decide. If they consider a confession is inadmissible, they must simply put matter from their mind and decide the case without it
A court has discretion to exclude evidence offered by the prosecution. In what circumstances can this discretion be exercised?
When it appears to the court, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding
How does an exclusion of evidence for unfairness differ from an exclusion based on mistake, untruth, oppression, unreliability due to things said or done?
Exclusion of evidence for unfairness is discretionary and need not be excluded
Typically, will a court exercise its discretion to exclude evidence when the police have breached their duties?
No, not unless the breaches are significant and substantial and have rendered the evidence unreliable
What are the seven grounds for admitting bad character evidence against the defendant?
- All parties agree
- The bad character evidence is given by defendant during cross examination
- Evidence is needed to properly understand the case
- The evidence is relevant to an important matter in issue
- Evidence proves important matter in dispute between co-defendants
- Evidence is needed to correct false impression given by defendant
- Defendant has attacked another witness’ character
What type of evidence does the court have discretion to exclude from evidence in a criminal trial?
- Evidence obtained through an illegal search
- Identification evidence
- Confessions
- Evidence obtained through covert surveillance or undercover operations
The grounds for adducing a non-defendant’s bad character are restricted to 3 grounds. What are these?
- All parties to the proceedings agree to evidence being admissible;
- It is important explanatory evidence; or
- It has substantial probative value to a matter in issue in the proceedings and is of substantial importance in the case as a whole
When must bad character evidence be excluded by the court?
Admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it
If a prosecution wishes to adduce bad character evidence, how much notice must they give?
- 20 business days of entering not guilty plea in Magistrates’ Court
- 10 business days of entering not guilty plea in Crown Court
Is a defendant entitled to a good character direction to the jury?
Yes, this is an automatic entitlement if the defendant has no prior convictions
What are the two parts of a good character direction?
- Propensity direction - person of good character less likely to have committed offence
- Credibility direction - person of good character more likely to be credible when asserting innocence before or at trial
If there has been mistake, untruth, oppression, unreliability due to things said or done, must evidence be excluded?
Yes and this is not discretionary
