Criminal Practice 4: Admitting/Excluding Evidence

Question 1

Who has the burden of proof and what is the standard of the proof?

Answer 1

Burden on prosecution

Must prove case beyond reasonable doubt

Question 2

What are the Turnbull Guidelines (as in when are they used)?

Answer 2

Used when case wholly or substantially relies on identification evidence and defence disputes this.

Then guidelines must be followed. They set out factors to determine the strength of identification evidence

Question 3

What are the Turnbull guidelines (as in the actual guidelines)?

Answer 3

Use ADVOKATE prompt

A amount of time witness observed D
D distance between them
V visibility at time
O obstruction (trees, windows etc.)
K known or unknown to witness
A any reason to remember
T time between incident and procedure
E errors in first description

Question 4

What happens if judge concludes that identification evidence is weak / strong

Answer 4

Weak
- if concludes it is weak and there is no supporting evidence
- should withdraw case from jury and direct acquittal

Strong
- if concludes it is strong enough that conviction would be supported or there is corroborating evidence to support weak evidence
- leaves case to jury to decide
- defence can cross examine witness

Question 5

What is the Turnbull warning and when is it used?

Answer 5

In summing up at the end of the trial the judge must give the jury a Turnbull warning on the identification evidence

Should:
- warn of special need for caution before convicting in reliance on identification evidence. Stating that mistaken witness can be convincing and several witnesses can be mistaken
- Ask the jury to consider the circumstances in which the witness identified the defendant; and
- refer to particular weaknesses with the identification evidence, considering the factors set out in ADVOKATE

Question 6

When can adverse inferences be drawn from silence

Answer 6

Giving facts at trial not given under questioning
- even if following legal advice

Failure to give evidence at trail
- unless their physical/mental condition makes it undesirable

Failure to account for object, substance or mark found on their person at time of arrest

Failure to account for presence at scene

Question 7

What are the limits on adverse inferences drawn from silence

Answer 7

They can weaken a defendants case but cannot be convicted on the basis of adverse inferences alone.

Question 8

When is hearsay evidence admissible?

Answer 8

If it fall under
- admissible under statute
- admissible by rule of law
- admissible by agreement of all parties; or
- admissible in the interest of justice

Question 9

When is hearsay evidence admissible under statute?

Answer 9

1. Witness is unavailable
   - dead, unfit due to physical or mental condition
   - outside the uk and not reasonably practical to secure attendance
   - unable to be found despite reasonably priceable steps
   - does not give evidence through fear and court gives leave for other forms
2. business documents if:
   - it was created or received in Cours of trade, business, profession etc.
   - the person who supplied the info may reasonably be supposed to have had personal knowledge of the matter
   - (if received by other persons) it was done in course of trade, business etc.
3. Statement were prepared for use on criminal proceedings and relevant person cannot be expected to recollect the matter
4. there are previous consistent or inconsistent statements of a witness
5. Expert evidence is adducted
6. there is a confession

Question 10

When is hearsay evidence admissible under Rule of Law?

Answer 10

1. confessions or mixed statements (partly inculpatory / partly exculpatory) BY the defendant
2. Statements made during the offence; AND preserved res gestate. Meaning:
   - made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;
   - statements accompanying an act which can only be property evaluated in conjunction with the statement; and
   - statement relating to a physical or mental state

Question 11

When is hearsay evidence admissible in the interest of justice?

Answer 11

Gives court discretion to adduce evidence that might otherwise not be admissible.

Court to consider:

To Proceedings
- value of the statement to matter in issue
- how important it is in relation to case as a whole

Alternative
- what other evidence could be given
- whether oral evidence of matter stated can be given

Background of Statement
- circumstances in which the statement was made
- how reliable the maker appears
- how reliable the evidence of the making of the statement appears

Prejudice
- the amount of difficulty in challenging the statement; and
- the extent of the likely prejudice caused

Question 12

When is multiple hearsay admissible?

Answer 12

Only if:
- it is a business document;
- it is an inconsistent statement;
- it is a consistent statement;
- all Parties agree;
- the value of the evidence is so high that it is the interest of justice

Question 13

What is a confession?

Answer 13

Any statement wholly or partly adverse to the person who made it, whether or not made to a person in authority and whether made in words or otherwise.

So includes mixed statements.

Question 14

When are confessions admissible?

Answer 14

if they are relevant to a matter in issue (so proving or disproving some facts in issue in the prosecution)

Question 15

How can confessions that have been admitted in to evidence be challenged?

Answer 15

Can be challenged on
- mistake (listener misheard)
- untruth (inc. oppression or things said or done likely to render it unreliable)

Question 16

What are the requirements to challenge a confession due to oppression or things said and done?

Answer 16

Step 1: The defence
- must also show a causal link between the oppression / thing said or done, and the confession made.
- If confession was made independently of those factors then it will not be excluded.

Step 2: Prosecution
- has burden of proof to show beyond reasonable doubt that neither oppression nor things said or done likely to render confession unreliable apply
- if they fail it must be excluded

Question 17

What is the process for deciding admissibility of confessions?

Answer 17

Crown Court
- decided by judge in absence of jury
- hearing known as “voir dire”
- jury does not know of any of this

Magistrates
- bench decides
- if they decided it is inadmissible they must put it out of mind

Question 18

What discretion does the court have to exclude evidence?

Answer 18

1. for Unfairness
   - MAY exclude any evidence offered by prosecution if:
   - it appears in all circumstances to have an adverse effect on fairness of proceedings
   -
   - Often only if breaches (of PACE) are significant and substantial and render evidence unreliable
2. For mistake, untruth, oppression or unreality due to things said or done
   - MUST be excluded if court finds these grounds exist

Question 19

What are the grounds for admitting bad character evidence?

Answer 19

1. all parties agree
2. Evidence adduced by the defendant
   - given by defendant (eg in cross examination)
3. Important explanatory evidence
4. Relevant to an important matter in issue
5. Matter in issue between codefendants
   - there is substantial probative value to an important matter in issue between defendant and co-defendant
6. Correct false impression given by defendant
   - includes evidence given by defendant in court, before court under caution, evidence given by defendants witness
7. Defendant attacked another’s character

Question 20

What is required for bad character evidence to be admissible as Important Explanatory Evidence?

Answer 20

If
- without it, the jury would find it difficult or impossible to property understand other evidence in case; and

• its value for understanding the case as a whole is substantial

Question 21

What is required for bad character evidence to be admissible as ‘Relevant to an important matter in issue’? What kind of evidence is required?

Answer 21

Can be used to admit evidence on basis of propensity to commit similar types of evidence or to be untruthful

Question 22

What kind of proof is needed for bad character evidence needed to show propensity?

Answer 22

Similar Types of Offence
- includes all offences of the same kind
- no minimum number but the more the better
- unless offence is distinctive or unusual would need more than one

Propensity for Untruthfulness
- only if past offence is a dishonesty offence

Question 23

What is required for bad character evidence to be admissible as ‘Matter in issue between codefendants’?

Answer 23

Applies where co-defendants are running cut-throat defence (ie blaming each other for commission of offence)
- might want to show that other co-def has a history of committing similar offences to the one charged and is therefore more likely to be perpetrator

Test
- must have substantial probative value
- meaning it is going to. make a fact in issue more or less likely

Question 24

When can a defendant be said to have made an attack on another character to make bad character evidence admissible?

Answer 24

Can be:
- at trial;
- when questioned under caution or on charge;
- D’s council pursues line of questioning during cross examination which intends to elicit such evidence.

Attack includes:
- suggesting witness is bias;
- raising previous conviction of witness;
- accusing the police of misconduct.

Question 25

What is the process of adducing bad character evidence?

Answer 25

Notice
- 20 business days of entry of not guilty plea in Magistrates; or
- 10 business days of entry of not guilty plea in Crown Court.

If D wishes to oppose
- notice to oppose must be served in set form within 10 Business days of notice

Decision
- application may be decided at pre-trial hearing or on day of trail in absence of jury

Question 26

When is a defendant entitled to good character direction? When not?

Answer 26

Yes
- If D has not previous convictions

At Judges Discretion (maybe)
- if D has old, minor and unrelated previous convictions may still be eligible
- if D has no previous convictions but there is bad character evidence which prosecution does not seek to rely on judge has discretion

Probably Not
- if D has no previous convictions but there is bad character evidence upon which prosecution seeks to rely on the probably not

Question 27

What is the good character direction given by judge?

Answer 27

Two parts

1. propensity direction
   - that a person of good character is less likely to have committed this offence
2. credibility direction
   - that a person of good character is more likely to be credible when they assert their innocence either before of during trail

Question 28

Bad character evidence: how court considers this and excludes this?

Answer 28

When
If brought under below grounds:
- Important matter in issue (probative value) ground; or
- attacked another credibility ground

Then
- court MUST not admit it if defence makes application to exclude; AND
- it appears to court admitting it would have such as adverse effect on fairness of proceedings that court should not admit

Court considers
- time between thing that constitutes bad character evidence and current offence

Question 29

What are the grounds for adducing bad character evidence of witness other than defendant?

Answer 29

Evidence of the bad character of a person other than the defendant is admissible if and only if—
(a)it is important explanatory evidence,

(b)it has substantial probative value in relation to a matter which—
(i)is a matter in issue in the proceedings, and
(ii)is of substantial importance in the context of the case as a whole,
or

(c)all parties to the proceedings agree to the evidence being admissible.