Criminal Practice (Identification Evidence) Flashcards
What is the Legal Burden?
The burden is on the prosecution. The standard is ‘beyond reasonable doubt’.
Are there exceptions to the Legal Burden?
Yes, it can fall on the defendant in rare cases like automatism, dimishished responsibility or insanity.
What is the Evidential Burden?
The judge must be satisfied that evidence can prove the issue before it goes to a jury.
When should a Turnbull Direction be given?
When the case against the accused depends ‘wholly or substantially’ on visual identification.
What is a Turnbull Direction?
It warns the jury to be cautious about relying on visual identification. The judge should….
- Instruct jury to the reason for the need for such a warning (e.g. mistaken witnesses can be convincing)
- Direct the jury to examine the circumstances in which the identification was made; and
- Remind the jury of any weaknesses in the identification evidence
When should the case be withdrawn from the jury?
Judges must stop the case if the identification evidence is poor or unsupported.
Evidence capable of supporting the identification include:
* Scientific evidence (e.g. footwear)
* Multiple identifications by different witnesses
* Accused’s bad character and convictions
* Silence on interview
* Admission at the scene, interview, witness box
What factors are considered in assessing the Quality of ID Evidence (ADVOKATE)?
- Amount of time
- Distance
- Visibility
- Obstruction
- Known Before
- Any Reason to Remember
- Time Lapse, Error.
ADVOKATE
What is the advance notification requirement in the Magistrates Court?
- Defence statement is optional unless ordered nu the judge
- Submit skeleton 10 days before trial.
- Prosecution response must follow no later than 5 business days after reciept.
What is the advance notification requirement in the Crown Court?
Defence statement is mandatory, including evidence admissibility.
What is the timing for s.76 confession applications in the Magistrates Court?
Any application under s.76 is dealt with as a preliminary issue.
What is the timing for s.76 confession applications in the Crown Court?
- Application to exclude can be made at PTPH or just prior to jury opening.
- Alternatively, it can be made during the trial itself where there is no pressing need to deal with it at the outset.
What is a Voir Dire?
A **trial within a trial **to ascertain facts surrounding a confession where the factual matter relating to the substance is disputed
If the background facts are agreed, there is no need for a voir dire and the legal arguments can be made with usual submission.
What happens in the Magistrates Court during a Voir Dire?
- “Where application is under s.76 alone, or both s.76 and s.78, the magistrates should hear the evidence and decide as a preliminary issue.
If the application is only s.78, the magistrates have discretion to hear all the evidence and decide on admissibility at a later stage”
What happens in the Crown Court during a Voir Dire?
A voir dire is required where the application is made under.76 (or both s.76 and s.78) and the evidence is in dispute.
What should be the judge’s reference in the Crown Court?
Circuit Judges and Recorders are addressed as ‘Your Honour’; High Court Judges as ‘My Lord’ or ‘My Lady’.
What is the role of the Judge in a Crown Court trial?
Arbiter of law, ruling on admissibility of evidence and directing the jury.
How many jurors are in a Crown Court?
The Crown Court incorporates a jury of 12 people. A panel of 16 are initially asked to go to court.
What is the role of the Jury?
Sole decider of facts, must accept the judge’s legal directions and decide based only on evidence.
What is the jury selection process?
A panel of about 16 is called; 12 are chosen at random and sworn in.
What are the Preliminary Instructions to the Jury?
The judge tells the jury to decide the case based on presented evidence and that matters of law are for the judge.
What does the Prosecution opening speech focus on?
The facts and issues in the case; it should avoid overly emotive language.
How does the Defence identify matters in issue?
The judge can invite the defence to confirm or clarify the issues in dispute.
What is the process for Prosecution evidence presentation?
Witnesses are called, evidence in chief is presented, and the defence cross-examines.
What happens at the conclusion of the prosecution case?
The judge may direct the jury to acquit if the evidence is insufficient.
What rights does the defendant have regarding giving evidence?
The judge will ask if the defendant will give evidence; not doing so can result in adverse inference.
What is the Defence opening speech?
Although it’s a right, it is rarely used; often, the defence goes straight into evidence.
What is the process for Defence evidence presentation?
The defendant gives evidence, followed by cross-examination and examination of other defence witnesses.
What occurs during legal discussions after the defence case?
The jury is sent out to allow the judge, prosecution, and defence to consider legal matters for summing up.
What happens during closing speeches?
The prosecution makes the first closing speech, followed by the defence.
What is the Judge’s summing up?
The judge sums up the case to the jury, directing them on legal matters and their role.
What do Jury Bailiffs do?
They swear to keep the jury in a private place and not allow communication until a verdict is reached.
What is required for a jury’s verdict?
Decisions must be unanimous, but a majority verdict can be given after deliberation if reasonable.
If the only evidence against a defendant is that of a witness cannot now be sure that it was the defendant she saw, what should the judge do?
The Judge should withdraw the case from the jury and direct an acquittal.
Be careful, there is no need for a Turnbull Warning
What happens if a suspect refuses to participate in a video identification procedure?
The police can proceed with a video identification procedure without the client’s consent.
How many images must the witness be shown in a video identification procedure?
At least 12 photographs at a time
What rank is the identification officer?
An officer not below the rank of inspector, who is not involved in the investigation
Can a video identification officer allow a witness to view an image without the concealment of a physical feature?
Yes
A video identification officer has the discretion to allow a witness who makes a request to view an image without the concealment of a physical feature
