Chapter 7: Procedures to Admit and Exclude Evidence

Question 1

Does a defendant need to prove their innocence?

Answer 1

No, the prosecution must prove that the defendant is guilty

Question 2

What will happen if the defence manage to cast reasonable doubt on any element of an offence allegedly committed?

Answer 2

The defendant must be acquitted

Question 3

If a case wholly or substantially relies upon identification evidence which is disputed by the defendant, what must happen?

Answer 3

The Turnbull Guidelines should be followed

Question 4

What is the Turnbull Guidelines?

Answer 4

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

Question 5

What should a judge do if they consider identification is weak and there is no supporting evidence?

Answer 5

Withdraw the case from the jury and direct acquittal

Question 6

What can the defence do if witness evidence has been submitted which they contest?

Answer 6

Seek to undermine the quality of identification evidence in cross examination by going through the factors set out in ADVOKATE

Question 7

What is a Turnbull Warning?

Answer 7

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

Question 8

In which three circumstances can a judge or jury draw an adverse inference from a defendant’s silence?

Answer 8

• 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

Question 9

In which two circumstances will evidence be considered hearsay?

Answer 9

1. When evidence is produced in writing e.g. Evidence in chief
2. Someone testifies in court to something someone else told them

Question 10

Hearsay is only admissible if it falls under one of four categories. What are these categories?

Answer 10

1. Admissible under statute
2. Admissible by the rule of law
3. Admissible by agreement of all parties
4. Admissible in the interests of justice

Question 11

When will hearsay be admissible under statute?

Answer 11

• 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

Question 12

When will hearsay be admissible under the rule of law?

Answer 12

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

Question 13

Multiple hearsay occurs when a statement has been relayed through more than one person. In which three circumstances will this be admissible?

Answer 13

1. It is a business document
2. It supports or conflicts with a witness’ in court testimony
3. The value of the evidence is so high that it is in the interests of justice

Question 14

What is inculpatory evidence?

Answer 14

Evidence indicating the guilt of a person

Question 15

What is exculpatory evidence?

Answer 15

Evidence indicating the innocence of a person

Question 16

What is a confession?

Answer 16

A statement which is wholly or partially adverse to the person who made it

Question 17

Does a confession need to be made to a person in authority?

Answer 17

No, it is irrelevant whether the confession was made to a person in authority

Question 18

Can a mixed statement be regarded as a confession? E.g. “I hit them, but it was only in self-defence”

Answer 18

Yes, a mixed statement can be regarded as being a confession

Question 19

In what circumstances will a confession be admissible?

Answer 19

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

Question 20

On what grounds can the defence challenge the admissibility of a confession?

Answer 20

A confession can be challenged on the basis of oppression or unreliability

Question 21

What must the prosecution do if the admissibility of a confession is challenged?

Answer 21

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

Question 22

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?

Answer 22

Yes, exclusion is mandatory if any of these reasons is present

Question 23

In Crown Court, who decides whether a confession is admissible?

Answer 23

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

Question 24

In the Magistrates’ Court, who decides whether a confession is admissible?

Answer 24

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

Question 25

A court has discretion to exclude evidence offered by the prosecution. In what circumstances can this discretion be exercised?

Answer 25

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

Question 26

How does an exclusion of evidence for unfairness differ from an exclusion based on mistake, untruth, oppression, unreliability due to things said or done?

Answer 26

Exclusion of evidence for unfairness is discretionary and need not be excluded

Question 27

Typically, will a court exercise its discretion to exclude evidence when the police have breached their duties?

Answer 27

No, not unless the breaches are significant and substantial and have rendered the evidence unreliable

Question 28

What are the seven grounds for admitting bad character evidence against the defendant?

Answer 28

1. All parties agree
2. The bad character evidence is given by defendant during cross examination
3. Evidence is needed to properly understand the case
4. The evidence is relevant to an important matter in issue
5. Evidence proves important matter in dispute between co-defendants
6. Evidence is needed to correct false impression given by defendant
7. Defendant has attacked another witness’ character

Question 29

What type of evidence does the court have discretion to exclude from evidence in a criminal trial?

Answer 29

• Evidence obtained through an illegal search
• Identification evidence
• Confessions
• Evidence obtained through covert surveillance or undercover operations

Question 30

The grounds for adducing a non-defendant’s bad character are restricted to 3 grounds. What are these?

Answer 30

1. All parties to the proceedings agree to evidence being admissible;
2. It is important explanatory evidence; or
3. It has substantial probative value to a matter in issue in the proceedings and is of substantial importance in the case as a whole

Question 31

When must bad character evidence be excluded by the court?

Answer 31

Admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it

Question 32

If a prosecution wishes to adduce bad character evidence, how much notice must they give?

Answer 32

• 20 business days of entering not guilty plea in Magistrates’ Court
• 10 business days of entering not guilty plea in Crown Court

Question 33

Is a defendant entitled to a good character direction to the jury?

Answer 33

Yes, this is an automatic entitlement if the defendant has no prior convictions

Question 34

What are the two parts of a good character direction?

Answer 34

1. Propensity direction - person of good character less likely to have committed offence
2. Credibility direction - person of good character more likely to be credible when asserting innocence before or at trial

Question 35

If there has been mistake, untruth, oppression, unreliability due to things said or done, must evidence be excluded?

Answer 35

Yes and this is not discretionary