Criminal Procedure - Evidence

Question 1

One common eg of evidence that requires corroboration? How might the judge procedurally deal with such evidence?

Answer 1

Where the witness, usually an accomplice, has a purpose of his own to serve by testifying for prosecution against the defendant

Corroboration warning - which alerts the jury ot the magistrates to the dangers of relying solely on witness testimony and the importance of independent evidence

Question 2

Two situations where corroborative evidence is required?

Answer 2

1. Offence charged requires CE as a MATTER OF LAW
2. Court considers it appropriate to give a WARNING about the evidence of an UNRELIABLE WITNESS

Question 3

Three important guidelies for the judge to consider when deciding whether to give a corroboration warning?

Answer 3

1. Not required just because the witness is an accomplice or a sexual offence complainant or a child giving unsworn evidence
2. Matter for the judge’s discretion
3. There must be an evidential basis for suggesting the witness’ evidence may be unreliable

Question 4

At what point in time is a corroboration warning given?

Answer 4

As part of the judge’s review of the evidence

Question 5

Two basic requirements for evidence to be corroborative?

Answer 5

1. Admissible in its own right
2. Independent of the evidence to be corroborated

Question 6

CE can come from D himself. Give three examples.

Answer 6

1. D tells lies
2. D refuses without good cause to give an intimate sample
3. D’s silence, where an adverse inference is appropriate

Question 7

When are the Turnbull guidelines important?

Answer 7

Prosecution witness testifies that the person they saw near/at the crime scene is D, but D denies being the person the witness is identifying

Question 8

What 3 points must the judge include when making a Turnbull warning?

Answer 8

1. The special need for caution before convicting D based wholly or substantially on the identification evidence
2. Instruct them for the reasons for the warning (mistaken witnesses can still be convincing + multiple witnesses may be mistaken)
3. Remind the jury of any specific weaknesses in the identification evidence

Question 9

What direction should the judge make to the jury?

Answer 9

Examine closely the circumstances in which the witness identification came to be made?

Question 10

What must the trial judge do when he concludes that the quality of the identifying evidence is poor?

Answer 10

WITHDRAW the case from the jury and DIRECT ACQUITTAL unless there is other evidence that corroborates the correctness of the identification.

Question 11

When can the jury’s rejection of an alibi provide support for an identification?

Answer 11

Jury is satisfied that the sole reason for the fabrication was to DECEIVE them and there is NO EXPLANATION for it being put forward

Question 12

Consequences of failure to give a Turnbull warning where eyewitness identification is disputed?

Answer 12

Will provide a convicted D with a ground for appeal against conviction on the basis that the conviction is UNSAFE

Question 13

Five situations when Turnbull guidelines will not apply?

Answer 13

1. Identification of motor vehicles
2. Evidence of police offices who base their identification on long periods of observation or surveillance
3. No formal identification of D
4. D maintains that the eyewitness is fabricating evidence
5. D admits his presence at the crime scene

Question 14

2 reasons why good character evidence might be admitted? Key difference?

Answer 14

1. To show D has lower propensity to commit the offence
2. To bolster credibility of D’s evidence and/or assertion of innocence

If D does not give evidence, judge will only give direction as to propensity UNLESS D discloses defence to the charge when interviewed at the police station

Question 15

What is absolute good character?

Answer 15

No criminal record + praiseworthy activities

Question 16

What is effective good character?

Answer 16

Where D has previous convictions but these are outdated or irrelevant

Question 17

What is the consequence of failure to give a good character direction?

Answer 17

D will have grounds to appeal against conviction.

Question 18

When does court have discretion whether to give a good character direction?

Answer 18

Where D has a previous conviction for a minor offence or an offence committed long ago

Question 19

Statutory definition of bad character evidence? Does it only consist of prior convictions?

Answer 19

Any evidence of a DISPOSITION towards MISCONDUCT (including offences and any reprehensible behaviour)

Not only prior convictions-includes evidence relating to offences D was charged but not convicted / acquitted, and evidence of other reprehensible behaviour

Question 20

Seven gateways to bad character evidence?

Answer 20

1. All parties agree
2. Evidence is given by D (including in cross)
3. Important explanatory evidence
4. Relevant to an important disputed matter between D and P
5. Has substantial probative value in relation to a disputed issue between D and co-D
6. Corrects a false impression given by D
7. D has attacked another person;s character

Question 21

What kinda of bad character evidence is excluded from the CJA 2003?

Answer 21

Evidence of MISCONDUCT going directly to FACTS OF THE OFFENCE-governed by its relevance to the issues in the case

Question 22

What is the most common gateway for bad character evidence?

Answer 22

Whether the evidence is relevant to an important matter in issue between D and P: this usually includes propensity and D’s truthfulness.

Question 23

When must the prosecution serve notice of intention to admit evidence of bad character? Deadline?

Answer 23

When the evidence is sought to be admitted under gateways (c)-(g). 20 days after NG plea in the MC, 10 days for the CC

Question 24

Deadline to object to admission of bad character evidence? When is objection resolved?

Answer 24

Not more than 10 business days after service of the notice

For CC, judge will initially consider issue at PTPH, but fully hear application at trial. For MC, judge usually resolves the issue at the pre-trial hearing.

Question 25

Hearsay evidence is where the witness testifies about facts of which they have no personal knowledge. True or false?

Answer 25

False-it’s also hearsay when the witness’ written statement is put before the court because the witness is unable to testify orally.

Question 26

Define hearsay evidence (2 criteria).

Answer 26

Hearsay evidence is: (1) any statement other than one made by a person while giving oral evidence; (2) which is adduced to prove the truth of the facts asserted.

Question 27

Four requirements for admitting a written statement as evidence without the witness attending the trial (Section 9 of CJA 1967)? What if opposing party objects>

Answer 27

1. Signed
2. Declaration of truth
3. Served on opposing party
4. Opposing party has not objected within 7 days

If opposing party objects, court has no power to overrule the objection.

Question 28

Four statutory exceptions to the rule against hearsay?

Answer 28

1. Statutory categories of admissible hearsay evidence (usually where witness is unavailable)
2. Preserved common law rules
3. Parties agree
4. Court is satisfied that it is in the interests of justice

Question 29

Four requirements to admit a witness’ written statement where he cannot attend trial?

Answer 29

1. Could have given ORAL evidence if he attended
2. Witness is IDENTIFIED to the court’s satisfaction
3. Witness had requisite CAPABILITY at the time he made the statement
4. Witness’ UNAVAILABILITY is for a legally permitted REASON

Question 30

Three requirements for business documents to be admissible as hearsay evidence?

Answer 30

1. Document was created or received in the course of an occupation or as the holder of an office
2. Person who supplied the information might** reasonably be expected to have personal knowledge **of the matters addressed in the statement
3. Any person through whom the information was supplied received the information in the course of an **occupation **or as the holder of an office

Question 31

What is the res gestae rule?

Answer 31

Hearsay evidence may be admitted where it was mae by a person so emotionally overpowered by an event that the possibility of concotion or distortion can be disregarded

Question 32

What are the 3 best-known examples of exceptions to the hearsay rule in criminal proceedings?

Answer 32

1. Confession evidence
2. Previous inconsistent statements
3. Previous consistent statements made to rebut an allegation of fabrication, after being crossed as a memory-refreshing document, or if witness confirms they made the statement and it is truthful

Question 33

3 exceptions when multiple hearsay is admissible?

Answer 33

1. Admissible as business documents, inconsistent statements or other previous statements
2. All parties agree
3. Court is satisfied that the value of the evidence is so high that the interests of justice require admissibility

Question 34

What is the prosecution’s deadline for serving the notice of intention to introduce hearsay evidence? Hard deadline?

Answer 34

MC: 20 business days after a NG plea
CC: 10 business days after a NG plea

No, court may extend the limits.

Question 35

What is the defendant’s deadline for serving the notice of intention to introduce hearsay evidence? Hard deadline?

Answer 35

As soon as reasonably practicable.

No, court may extend the limits

Question 36

What is the deadline to object to the introduction of hearsay evidence?

Answer 36

10 business days after the later of: (i) service of the notice or (ii) the defendant pleads guilty

Question 37

What are the three key requirements for admissibility of confession evidence?

Answer 37

1. Voluntarily made
2. Evidentially reliable
3. Wholly or partly adverse to the person who made it

Question 38

Is confession evidence admissible if police refuse D the right to inform someone of their arrest and/or to seek legal advice?

Answer 38

Not automatically excluded, but provide grounds to argue for exclusion of evidence

Question 39

3 requirements to admit off the record comments?

Answer 39

1. Police keep a written record signed and dated by the officer
2. D is given the opportunity to read the record
3. D signs it as an accurate record of what was said

Question 40

What are the three statutory bases on which a confession may be excluded?

Answer 40

1. Oppression
2. Unreliability
3. Unfairness

Question 41

When is a voir dire normally held (2 pts)? When is it necessary (2 pts)?

Answer 41

Either (1) at trial (without the jury) or (2) at a pre-trial hearing

Needed when (1) it is represented that the confession was obtained by law or is unreliable and (2) this involves a question of mixed law and fact, as opposed to a purely factual matter

Question 42

What options does D have if the confession is admitted after a voir dire?

Answer 42

He can still repeat his allegations about the confession to persuade the jury that the confession carries little weight

Question 43

If a confession is inadmissible, what happens to evidence obtained as a result of the confession?

Answer 43

That evidence need not be excluded if it can be introduced without making reference to the confession

Question 44

In the context of confession evidence, how are “mixed statements” usually treated?

Answer 44

The whole statement, including any exculpatory or self-serving parts, must be admitted in evidence and not just the confessory parts.

Question 45

What are the four grounds of challenging the admissibility of prosecution evidence that is not a confession?

Answer 45

1. Statutory unfairness under S. 78 PACE 1974
2. Prejudicial effect > probative value under common law
3. Abuse of process
4. Court’s discretion to ensure a fair trial

Question 46

What is the key question with respect to entrapment?

Answer 46

Whether the police caused the commission of the offence as opposed to simply providing D with a chance to commit the offence.

Question 47

W

2 observations about the common law discretion to exclude evidence because its prejudicial effect outweights its probative value?

Answer 47

1. Interpreted very narrowly
2. Useful to base defence argument on both S.78 (unfairness) and S. 82(3) PACE (prejudicial effect)

Question 48

What is the cause and effect of an order to stay the court proceedings for abuse of process?

Answer 48

Cause: court believes that D cannot enjoy a fair trial or because of the prosecution’s conduct, it is not fair to try D

Effect It brings the trial to an end.

Question 49

3 examples that might support an abuse of process submission?

Answer 49

1. Adverse pre-trial publicity
2. Entrapment
3. Prosecution withholds relevant evidence or fails to secure evidence that might assist D

Question 50

What is the legal burden of proof for D in an abuse of process application?

Answer 50

On the balance of probabilities, it would be an affront to public conscience for the proceedings to continue or for the conviction to stand,

Question 51

When can the court draw adverse inferences from D’s silence at the police station? (3 situations)

Answer 51

1. Fails to mention facts they later rely on in support of their defence at trial
2. Fails to account for an object, substance or mark found on their person at the time of arrest
3. Fails to account for their presence at a particular place when arrested

Question 52

In what scenario can the court draw adverse inferences from D’s silence at the police station? Important limitation?

Answer 52

When D subsequently relies on facts in support of their trial defence that they failed to mention at their police interview or when charged

The adverse inference cannot be the sole evidence relied on for a conviction

Question 53

What is the test for whether an adverse inference can be drawn against D for failure to mention a fact in his police interview? (3 points)

Answer 53

1. Police have offerred access to legal advice
2. They later rely on the omitted fact in their defence
3. They could reasonably have mentioned that fact during their interview

Question 54

When can D rely on legal advice to justify his silence and avoid adverse inferences?

Answer 54

Court must be persuaded his reliance on legal advice to remain silent was reasonable and genuine

Question 55

As a solicitor, what alternative would you recommend to a client who wants to remain silent during his interview?

Precaution?

Answer 55

Put forward a written statement setting out his denial or defence to the allegations against him. Solicitor will read this statement to the police.

Must make sure all the facts relied on in the defence are mentioned, or AIs can still be drawn

Question 56

When can D be subjected to AIs for a “failure to account” (for an object, presence at a place etc)?

Answer 56

When a special caution is provided, including: (i) details of the offence; (ii) the fact D is asked to account for; (iii) a warning that an adverse inference may be drawn if D fails to comply with the information request

Question 57

What is the key difference between D as a witness at his own trial, compared to any other witness?

Answer 57

Although they are a competent witness, they cannot be compelled to give evidence-if they refuse they will not be in contempt of court.

Question 58

What must the court do before drawing an AI from D’s refusal to testify at trial?

Answer 58

He must ask the defence advocate whether he has advised his client that at this stage: (1) he may give evidence; and (2) if he does not give evidence or without good cause fails to answer a question put to him, the jury may draw such inferences as appear proper from that failure to do so.

Question 59

What 4 directions must the court make to the jury where D fails to give evidence at trial?

Answer 59

1. Prosecution still bears the legal burden of proof
2. D is **entitled **to remain silent
3. Jury must be satisfied there is a case to answer
4. AI may only be drawn if jury concludes that the only sensible explanation for D’s silence is that he has no answer to P’s case (or none that would stand up to cross)

Question 60

Limitation on AIs where D fails to give evidence at trial?

Answer 60

An AI drawn from D’s failure to give evidence cannot be the sole basis for a finding of guilt.

Question 61

When two defendants are jointly charged, when can D1 testify for the prosecution against D2?

Answer 61

Only when D ceases being a party to the proceedings (e.g. because he is acquitted, pleads guilty and receives sentence, or is tried separately). At this stage he becomes an accomplice

Question 62

Age limits for juvenile and child offenders?

Answer 62

Juvenile / youth - under 18 years

Child - under 14 years

Question 63

What is the principal statutory aim of the youth justice system? Secondary aim?

Answer 63

1. To prevent offending and reoffending by children and young people
2. To have regard to his welfare (including by, in a proper case, taking steps to remove him from undesirable surroundings and securing proper education and training)