Criminal Practice (Identification Evidence)

Question 1

What is the Legal Burden?

Answer 1

The burden is on the prosecution. The standard is ‘beyond reasonable doubt’.

Question 2

Are there exceptions to the Legal Burden?

Answer 2

Yes, it can fall on the defendant in rare cases like automatism, dimishished responsibility or insanity.

Question 3

What is the Evidential Burden?

Answer 3

The judge must be satisfied that evidence can prove the issue before it goes to a jury.

Question 4

When should a Turnbull Direction be given?

Answer 4

When the case against the accused depends ‘wholly or substantially’ on visual identification.

Question 5

What is a Turnbull Direction?

Answer 5

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

Question 6

When should the case be withdrawn from the jury?

Answer 6

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

Question 7

What factors are considered in assessing the Quality of ID Evidence (ADVOKATE)?

Answer 7

• Amount of time
• Distance
• Visibility
• Obstruction
• Known Before
• Any Reason to Remember
• Time Lapse, Error.

ADVOKATE

Question 8

What is the advance notification requirement in the Magistrates Court?

Answer 8

• 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.

Question 9

What is the advance notification requirement in the Crown Court?

Answer 9

Defence statement is mandatory, including evidence admissibility.

Question 10

What is the timing for s.76 confession applications in the Magistrates Court?

Answer 10

Any application under s.76 is dealt with as a preliminary issue.

Question 11

What is the timing for s.76 confession applications in the Crown Court?

Answer 11

• 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.

Question 12

What is a Voir Dire?

Answer 12

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.

Question 13

What happens in the Magistrates Court during a Voir Dire?

Answer 13

• “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”

Question 14

What happens in the Crown Court during a Voir Dire?

Answer 14

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.

Question 15

What should be the judge’s reference in the Crown Court?

Answer 15

Circuit Judges and Recorders are addressed as ‘Your Honour’; High Court Judges as ‘My Lord’ or ‘My Lady’.

Question 16

What is the role of the Judge in a Crown Court trial?

Answer 16

Arbiter of law, ruling on admissibility of evidence and directing the jury.

Question 17

How many jurors are in a Crown Court?

Answer 17

The Crown Court incorporates a jury of 12 people. A panel of 16 are initially asked to go to court.

Question 18

What is the role of the Jury?

Answer 18

Sole decider of facts, must accept the judge’s legal directions and decide based only on evidence.

Question 19

What is the jury selection process?

Answer 19

A panel of about 16 is called; 12 are chosen at random and sworn in.

Question 20

What are the Preliminary Instructions to the Jury?

Answer 20

The judge tells the jury to decide the case based on presented evidence and that matters of law are for the judge.

Question 21

What does the Prosecution opening speech focus on?

Answer 21

The facts and issues in the case; it should avoid overly emotive language.

Question 22

How does the Defence identify matters in issue?

Answer 22

The judge can invite the defence to confirm or clarify the issues in dispute.

Question 23

What is the process for Prosecution evidence presentation?

Answer 23

Witnesses are called, evidence in chief is presented, and the defence cross-examines.

Question 24

What happens at the conclusion of the prosecution case?

Answer 24

The judge may direct the jury to acquit if the evidence is insufficient.

Question 25

What rights does the defendant have regarding giving evidence?

Answer 25

The judge will ask if the defendant will give evidence; not doing so can result in adverse inference.

Question 26

What is the Defence opening speech?

Answer 26

Although it’s a right, it is rarely used; often, the defence goes straight into evidence.

Question 27

What is the process for Defence evidence presentation?

Answer 27

The defendant gives evidence, followed by cross-examination and examination of other defence witnesses.

Question 28

What occurs during legal discussions after the defence case?

Answer 28

The jury is sent out to allow the judge, prosecution, and defence to consider legal matters for summing up.

Question 29

What happens during closing speeches?

Answer 29

The prosecution makes the first closing speech, followed by the defence.

Question 30

What is the Judge’s summing up?

Answer 30

The judge sums up the case to the jury, directing them on legal matters and their role.

Question 31

What do Jury Bailiffs do?

Answer 31

They swear to keep the jury in a private place and not allow communication until a verdict is reached.

Question 32

What is required for a jury’s verdict?

Answer 32

Decisions must be unanimous, but a majority verdict can be given after deliberation if reasonable.

Question 33

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?

Answer 33

The Judge should withdraw the case from the jury and direct an acquittal.

Be careful, there is no need for a Turnbull Warning

Question 34

What happens if a suspect refuses to participate in a video identification procedure?

Answer 34

The police can proceed with a video identification procedure without the client’s consent.