Evidence Flashcards
What is the legal burden of evidence?
Prosecution will bear legal under of providing Ds guilt.
What is the standard of proof the prosecution must satisfy
Beyond reasonable doubt
When will the legal burden of proof fall on the defendant?
Who pleads not guilty and raises defence of insanity or duress. Must prove those facts. Balance of probabilities
Who has the legal burden of proof for specific defences?
Defendant who raises it, does nOT have the burden. They have evietual burden, and the the prosection has the legal burden of DISPROVING it beyond reasonable doubt.
What is s 78 of PACE?
Discretion to exclude evidence on whcih the prosecution seeks to rely, if the admission of such evidence would have such an adverse effect on teh fairness of proceedings that the court ought not to admit it
What are examples of police breaching codes of conduct rules?
Video procedure, breaching codes, if detailed and failed to do something
What are the Turnbull guidelines?
Special guidelines apply when witness who gives evidence for CPS visually identifies D as person who committed crime, an D DISPUTES that identification.
A witness will identify D as person if;
- witness picks out D informally, or,
- witness identifies D at formal procedure, or,
- witness claims to recognise D as someone previously known to them
Called Turnbull witness
What must the court do to Turnbull witnesse?
Asses factors, take into account factors. Judge will gie Turnbull warning to jury, and tell jury it is easy for an honest witness to be mistaken, or point out weaknesses in the idenficiation evidence, and tell jury to look for supporting evidence before conducting.
What are the factors for Turnbull witnesse?
Length of observation
Distance
Conditions
Lighting
How much of their fact di they see
If identified as someone already known
How closely the original description matches.
If identification is good qualify, what will the judge tell the jury>
That even an honest witness can be mistaken. Example closely the circumstances of the original sighting adn taken into account these.
Turnbull warning
What will the judge say to the jury when the identification is POOR, but supported,
Turnbull warning, but point out the dangers or relying on evidnece and special need for caution, draw attention to weaknesses one evidence.
What will the judge do if identification is POOR and UNSUPPORTED
Judge should stop tal at the end of prosection case and direct jury to acquit defendant.
Follow a submission of no case to answer being made by defendants advocate.
What are the Turnbull guidelines in the magistrates court?
Because magistrates decide both fact and law, it is necessary to address.
Must consider quality of evidence. Unlikely to make case of no case to answer, but will address Turnbull guidelines in closing speech and point out that however strong it is, identification evidence is unreliable.
What are the 5 inferences from silence?
S 34, 35, 36, 37, and 38
What is an adverse inference?
Court is likely to draw a negative conclusion from teh defendant silence when interviewed at the police station.
Only if given the opportunity to take independent legal adice
What is the inference under s 34?
Allows court or jury o draw A I from D silence when D was being questioned or charged at police station
What are pre-conditions for drawing of an adverse inference?
Certain conditions have to be satisfied:
interview had to be iinterview under caution
d had to fail to mention any fact later relied on in defence
Failure to mention this act had to occur before D was charged
Questioning of D at interview had to be directed or trying to discover offence
The fact which the D failed to mention had to be a fact which they msut have been expected to mention.
Can an adverse inference be used if there is a prepared written statement
No, s 34 was to encourage D to make early disclosure of defence to police, therefore this written statement shows this, and cannot draw adverse inference under s 34.
What is legal privilege and can it be adversely inferred with>
Conversation between suspect and solicitor, protected. Therefore D may give evidence which has the effect of waiting such providing, and allowing prosecution to cross examine them about the reasons for legal advice they were given.
To prevent adverse inference, D gives evidence that they remained silent on advice from solicitor, will NOT waive privilege.
What is adverse inferences under s 36?
Allows court or jury to draw adverse inference if, when interviewed by police, D failed to account for presence of OBJECT, SUBSTANCE or MARK.
What are limitations to s 36 and 37 inference?
The police officer that request s information on explanation, must have told the suspect of the SPECIFIED MATTERS before requesting the explanation - the special caution.
What the offence under investigation is
What fact the suspect is being account for
That the officer believes this is important
That a court may draw an adverse inference from failure to comply with the request
What is adverse inference under s 37?
Allows court to draw adverse inference if, when questioned, the D failed to account for their PRESENCE AT A PARTICULAR PLACE at or about the time the offence was committed.
What are adverse inferences under s 35?
A defendant hwo fails tog ive evidence on his own behalf at trial, may be subject to adviser inference being drawn by cour or jury.
If prosection has raised issues which calls for explanation, should the d then FAIL to give evidence, court wll be entitled to infer that they are hiding something
What must the court take into account in s 35 adverse inference?
The burden of proof remains on prosecution
The D is entitled to remain silent
Before drawing, the curt had to be satisfied that there was a case to answer on prosection evidence
An adverse inference form D failure to give evidence cannot on its own prove guilt
No adverse inference could be drawn unless only sensible explanation was that he had no good answer.
What is a hearsay statement?
A statement, not made in oral evidence, that is relied on as evidence of a matter in it.
What is an evidence statement?
Any representation or fact or opinion made by a person by whatever means,and it includes a representation made in a sketch, photo or other picture form.
