Chapter 8 - Evidence II Flashcards
What does ‘burden of proof’ actually mean in legal terms? Can you recall an example where this applied?
The prosecution carries the legal burden of proving all the elements of an offence.
The defendant can respond by attacking an element of the actus reus or mens rea (for example, claiming an alibi or mistake)
What does the ‘evidential burden on the defence mean in legal terms? Can you recall an example where this applied?
Once the basic elements of an offence have been proved, it is up to the defence suggest an explanation.
EG acting in self defence – It cannont be left to the fact finder to unless it is made a “live issue”.
Once a live issue the prosecution must destroy the defence as they retain the burden of proof.
Define reasonable doubt.
A very high standard of proof which the crown will have met only if at the end of the case you are sure the accused is guilty.
When might the balance of probabilities be used rather than beyond reasonable doubt?
Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not.
What are two offences where corroboration is required? Include the section and Act that they come from.
Perjury and related offences (sec 108, 110, & 111 Crimes Act)
Treason (Sec 73 Crimes Act)
Under s125 (1) what must you be mindful of with regards to child complainants and corroboration?
It prohibits a corroboration warning in cases involving child complaints where the warning would not have been given had the complainant been an adult
Describe 4 features of the adversarial or accusatorial system of justice under English common law.
The facts of the case and evidence relevant to the determination of those facts.
It is up to each party to decide what witnesses to call, order of should be called and what questions should be asked.
Each party has the right to test the testimony of witnesses called by the opposing party through cross-examination.
During the trial itself, the judge’s function is to ensure that the evidence is produced according to the established rules, ruling if necessary on its admissibility.
Briefly describe the sequence of a jury trial
- The judge commences the trial with brief opening instructions (role of jury etc).
- The crown makes an opening address – explanation of charge, reiterates the burden and standard of proof and summerise the case against the defendant.
- Crown presents case, calls witnesses and questions them. Defence has opportunity to cross examine.
- If the defence intends to call evidence it will open its case at the conclusion of the crowns
- The defence then presents its case calling it witnesses who are subject to cross examination.
- The crown then concludes by making a closing address to the jury summerising the case for the prosecution. No new information can be introduced.
- The defence makes its closing address to the jury summerising their case.
- Finally the judge sums up to the jury before it retires to consider its verdict.
What are the conditions for allowing the witness to use notes to ‘refresh memory’ in court?
Leave of the judge must be obtained
Document must be shown to every other party in the proceeding.
The documents must have been made by a witness at the time their memory was fresh.
The document must have been made the witness or by a person acting on the witness’s behalf in their presence.
What is the requirement around the witness refreshing the memory out of court by referring to documentation?
They may reference to briefs of evidence prepared from statements or check with the officer who interviewed them and so forth.
Requirement is if a witness refreshes their memory outside of court from a written statement the defence should be advised of this and given a copy if requested.
If a witness is declared to be a ‘hostile witness’ how might this be addressed in questioning them?
Asked questions in a manner of cross examination to the extent the judge considers it necessary for doing justice. This may include leading questions, questions probing the accuracy of memory and inconsistent statements.
Describe the 4 step regime in the Criminal Disclosure Act 2008?
Initial disclosure by prosecution
Full disclosure by prosecution
Defence disclosure
Third party Disclosure
Describe 3 factors in the Police Instructions around criminal disclosure. The prosecutor should consider whether info or exhibits:
- Will help or hider the defendant ability to defend charges;
- Would or might detract from the prosecution case or assist the defence or incriminate another person;
- Retain material which points towards a fact or an individual, casts doubt on the suspects guilt or implicates another person.
Describe 3 conditions that allow for the withholding of information by the prosecutor.
The prosecutor does not hold the information in recorded form.
Disclosure is likely to prejudice the maintenance of the law.
Disclosure is likely to endanger the safety of any person
