Evidence

Question 1

What is the legal burden & standard of proof?

Answer 1

Legal burden: prosecution must prove defendant’s guilt beyond reasonable doubt

Question 2

Where the legal burden of proof falls on the defendant (eg. defence of duress), what is the standard of proof?

Answer 2

On the balance of probabilities

Question 3

What is the evidential burden of proof?

Answer 3

Prosecution must present sufficient evidence to justify guilty finding & show that defendant has case to answer (before D has presented any evidence)

Defence only have evidential burden when raising specific defence (which prosecution must then prove beyond reasonable doubt is not true)

Question 4

What is a Turnbull witness (ie. a witness to whose evidence the Turnbull guidelines can apply)?

Answer 4

Witness identified defendant:

a. At an identification procedure

b. On basis of recognition

c. Informally

Question 5

If a defendant disputes they are the person seen by a witness at the time of the offence, how can they attempt to challenge the admissibility of the identification evidence?

Answer 5

1. Challenge it under s78 PACE due to a significant & substantial breach of Code D, either that ID procedure carried out incorrectly or not carried out
2. Challenge it in cross-examination & have judge give use Turnbull guidelines

Question 6

What are the factors the judge will consider when assessing the quality of identification evidence using the Turnbull guidelines?

Answer 6

ADVOKATE

A sustained look or fleeting glance (length of observation)

Distance between suspect & witness

Visibility

Observation impeded in any way?

Known to witness already?

Any particular reason to remember witness (eg. unusual scar, tattoo)

Time elapsed since witness saw suspect

Errors or discrepancies between witness’s original description & actual physical appearance of defendant

Question 7

What are the 3 possible outcomes when a judge assesses visual ID evidence using the Turnbull guidelines?

Answer 7

1. Identification evidence good → judge gives jury Turnbull warning
2. Identification evidence poor but supported → judge gives jury Turnbull warning & points out the weaknesses in the identification evidence
3. Identification evidence poor & unsupported → judge stops trial at end of prosecution case & directs jury to acquit defendant

Question 8

What is Turnbull warning?

Answer 8

• Dangers of relying on identification evidence
• Easy for honest witness to be mistaken
• Directing jury to examine circumstance in which ID made (ADVOKATE)
• Where evidence poor but supported: pointing out the weaknesses in the identification evidence

Question 9

Can an adverse inference be drawn if a defendant fails to mention at the police station a fact they later rely on in their defence at trial?

Answer 9

Yes where the court does not accept there is a good reason for silence

Ask: could the defendant reasonably have been expected to mention the fact at the time they were interviewed - consider:

• Lack of disclosure by police
• Weak police case
• Complexity of case
• Events occurred long time ago
• Suspect unfit for interview
• Age/maturity of suspect

Question 10

Can an adverse inference be drawn from silence at interview where the defendant had not been given the opportunity to receive legal advice beforehand?

Answer 10

No

Question 11

Can an adverse inference be drawn from a defendant’s silence if that silence was based on legal advice?

Answer 11

No if jury believe defendant genuinely & reasonably relied on the advice to remain silent, & that it was the true reason for their silence

Question 12

Can an adverse inference be drawn from a defendant’s failure to account for an object, substance or mark during the interview?

Answer 12

Only if a special caution has been given

(No requirement of reasonableness)

Question 13

Can an adverse inference be drawn from a defendant’s failure to account for their presence at the scene at the time the offence was committed?

Answer 13

Only if a special caution has been given

(No requirement of reasonableness)

Question 14

What is the special caution that must be given for adverse inferences to be drawn from failure to account for object, substance, mark or presence at scene?

Answer 14

Suspect must be told:

1. What the offence under investigation is
2. What fact suspect being asked to account for
3. That officer believes this fact may be due to suspect taking part in the commission of the offence in question
4. That court may draw adverse inference from failure to comply with request
5. That a record is being made of the interview & may be given in evidence if suspect brought to trial

Question 15

Can an adverse inference be drawn from a defendant’s silence at trial?

Answer 15

Yes where there is a case to answer from the prosecution evidence & the only sensible explanation for the defendant’s silence is that they have no answer to the case against them

Exception: must not be drawn where physical or mental condition makes it ‘undesirable’ for them to give evidence

Question 16

What is the exception to the general rule that an adverse inference may be drawn from a defendant’s failure to give evidence on their own behalf at trial?

Answer 16

Adverse inference may not be drawn where the physical or mental condition of the defendant makes it ‘undesirable’ for them to give evidence

Case law suggests will be applied strictly - eg. likely to cause epileptic seizure, ADHD, but not having IQ of 9 year old

Question 17

What discretionary power does s78 PACE give the court?

Answer 17

Court has discretion to exclude evidence which would have an adverse effect on the fairness of proceedings -

1. Evidence must be relevant
2. Evidence has been improperly obtained (a significant & substantial breach of PACE or Codes)
3. Manner in which the evidence was obtained casts doubt on its reliability

Question 18

What are the 3 conditions of evidence for the courts to have the discretion to exclude it under s78 PACE?

Answer 18

1. Evidence must be relevant
2. Evidence has been improperly obtained (a significant & substantial breach of PACE or Codes)
3. Manner in which the evidence was obtained casts doubt on its reliability

Question 19

Can admissibility of evidence obtained by entrapment be challenged under s78 PACE?

Answer 19

Yes, but better to invite court to exercise its common law power to stop case on basis would represent abuse of process to allow such a prosecution to continue

Nb. no defence of entrapment, which is why have to challenge admissibility instead

Question 20

What is hearsay evidence?

Answer 20

A statement made by a person

1. Outside of the court
2. Where the purpose is to cause another person to believe or act on the content of that statement
3. Which is relied on as evidence of the matter stated

Question 21

What is the difference between first hand hearsay & multiple hearsay?

Answer 21

Repeating something heard first-hand v repeating something heard second-hand

nb. admissibility of multiple hearsay much more limited

Question 22

Can a picture be hearsay?

Answer 22

Yes, so long as it was made

1. Outside of the court
2. Where the purpose of the picture is to cause another person to believe or act on the content of that statement
3. Which is relied on as evidence of the matter stated

Question 23

What is the general rule about admissibility of hearsay evidence in criminal proceedings?

Answer 23

not admissible (but several exceptions)

Question 24

What are the 7 exceptions to the rule that hearsay is inadmissible?

Answer 24

1. All parties agree to it being admitted
2. There is a common law rule making it admissible
3. It is in the interests of justice to admit it

4i. The witness is missing

4ii. Statement is contained in business documents

4iii. There is evidence of previous inconsistent statement

4iv. There is evidence supplementing the oral testimony

Question 25

What are the 2 main common law rules where hearsay is admissible?

Answer 25

1 Confession made by D admissible even if confession hearsay

2 Evidence admitted as part of the res gestae ie statement made contemporaneously w/ event (where spontaneity means no possibility of concoction) eg. statement made by fatally stabbed man soon after he was attacked naming his two attackers

Question 26

What are some of the factors the court will consider when deciding whether it is in the interests of justice to admit hearsay?

Answer 26

a. Value of statement in understanding issue or other evidence

b. The other evidence

c. importance of matter in statement

d. circumstances in which statement made

e. reliability of statement & statement maker

f. if oral evidence of matter can be given

g. difficulty involved in challenging statement

h. right to fair trial under Article 6 ECHR

Question 27

What are the 3 conditions for hearsay of an unavailable witness to be admissible?

Answer 27

1. Oral evidence would in theory be admissible (must be first-hand hearsay)
2. Person who made statement is identifiable
3. Witness is unavailable because they are:
   a. Dead
   b. Mentally or physically unfit
   c. Outside the UK & would be unreasonable to bring them back to the UK
   d. Cannot be found even though reasonably practicable steps have been taken to find them
   e. Afraid to testify & court grants leave

Question 28

When will hearsay statements contained in business documents be admissible?

Answer 28

1) Created or received in the course of business

2) Where the person supplying the info had personal knowledge of the matters being dealt with

3) Each person receiving the info was in the course of business

Question 29

When must hearsay notice be served under Part 20? (4)

Answer 29

Where the hearsay evidence is:

a. Admissible in interests of justice

b. Admissible because witness missing

c. Multiple hearsay

d. Written statement prepared for use in criminal proceedings

Question 30

What is the Part 20 procedure for admitting hearsay evidence?

Answer 30

Party wishing to adduce hearsay serves notice on court & all other parties no more than:

• 20 business days after D has pleaded NG in mags
• 10 business days after D has pleaded NG in CC

↓

If other party opposes, must apply to court & serve notice on court & other parties within 10 business days of receiving notice

↓

Court determines admissibility at pre-trial hearing

Question 31

What are the time limits for serving a hearsay notice under Part 20?

Answer 31

Should be served as soon as reasonably practicable and no more than:

• 20 business days after D has pleaded NG in mags
• 10 business days after D has pleaded NG in CC

Question 32

What is confession evidence?

Answer 32

Any statement wholly or partly adverse to the person who made it

Question 33

Is confession evidence admissible at trial?

Answer 33

Yes

Question 34

What are the 3 grounds for challenging the admissibility of confession evidence?

Answer 34

• Confession obtained by oppression (s76 PACE)
• Unreliability of confession (s76 PACE) (ie. sthg said or done which might’ve cause D to confess for a reason other than that they actually did the crime)
• Unfairness (s78 PACE) discretionary

Question 35

What is the procedure for challenging the admissibility of confession evidence in the Crown Court?

Answer 35

Determined by trial judge in voir dire trial without jury

If relying on s76, prosecution must prove beyond reasonable doubt that confession not obtained in way alleged

Question 36

What is the procedure for challenging the admissibility of confession evidence in the mags?

Answer 36

If seeking to exclude under s76 PACE (oppression / unreliability): must hold voir dire

If seeking to exclude under s78 PACE only: no obligation to hold voir dire (D’s solicitor attacks credibility in closing speech or when making submission of no case to answer)

Question 37

What is the definition of ‘bad character’ evidence?

Answer 37

Evidence of, or a disposition towards, misconduct (the commission of an offence or other reprehensible behaviour not connected to the offence with which D is charged

Question 38

Is evidence of a defendant’s misconduct connected to the offence with with they have been charged admissible?

Answer 38

Yes - don’t need to do the bad character admissibility gateway stuff

Question 39

What are the 7 gateways for admissibility of the defendant’s bad character?

Answer 39

(a) Both parties agree to evidence being admissible

(b) Defendant brings evidence of their own bad character to the court

(c) Important explanatory evidence (prosecution only)

(d) Relevant to important matter in issue between defence & prosecution - shows defendant has propensity to commit offences of same kind or be untruthful (prosecution only)

(e) Used by one defendant to show co-defendant has propensity to commit offences of same kind or be untruthful (defence only)

(f) To correct false impression given by defendant (prosecution only)

(g) Where defendant attacks another person’s character*

Question 40

What is meant by ‘important explanatory evidence’ for the purposes of gateway (c) ?

Answer 40

Without it, would be impossible to properly understand the case and the value of the evidence for understanding the case as a whole is substantial

nb. court has discretion to exclude on grounds of unfairness under s78 PACE

Question 41

How can a defendant’s previous conviction show a propensity to be untruthful?

Answer 41

i) Where the offence involved lying (eg. fraud by false rep, perjury)
or
ii) Defendant pleaded not guilty but was convicted following trial at which they testified

nb. court must not admit if would have such an adverse effect on fairness of proceedings

Question 42

Which are the gateways which the court has the discretion to exclude admissibility of bad character evidence under s78 PACE?

Answer 42

Gateway (c): important explanatory evidence

Gateway (g): to correct false impression given by defendant

Question 43

Which are the gateways which the court has the discretion to exclude admissibility of bad character evidence if would have such an adverse effect on the fairness of proceedings under CJA?

Answer 43

Gateway (d): propensity to commit offences of same kind / be untruthful

Gateway (g): where defendant attacks another person’s character

Question 44

What is the procedure for admitting bad character evidence?

Answer 44

Party wishing to adduce hearsay serves notice on court & all other parties no more than:

• 20 business days after D has pleaded NG in mags
• 10 business days after D has pleaded NG in CC

Another party can oppose by applying to court for evidence to be excluded within 10 days of receipt

Question 45

When is bad character evidence of a person other than the defendant admissible?

Answer 45

If:

a. It is important explanatory evidence (permission of court required)

b. It has substantial probative value in relation to matter in issue which of substantial importance to case as a whole - usually used to show witness has engaged in misconduct connected to the offence or has propensity to be untruthful (permission of court required)

c. All parties agree