Evidence

Question 1

What are the two basic requirements of evidence?

Answer 1

(i) It must be relevant to a matter in proceedings;

(ii) It must be admissible

Question 2

What is the legal burden? Who is the burden upon?

Answer 2

In all criminal cases, the prosecution bears the legal burden of proving D’s guilt.

The standard of proof is beyond a reasonable doubt.

Question 3

When can the legal burden be on the defendant?

Answer 3

If the defendant is pleading a defence such as diminished responsibility or duress, they are required to prove that argument on the balance of probabilities.

Question 4

What is the evidential burden and whom does it fall upon?

Answer 4

The prosecution: Always bears the evidential burden to prove the case and show there is a case to answer;

The defendant: Only if raising a specific defence (alibi, reasonable self-defence) will D have to satisfy the evidential burden (just requires them to enter the witness box and give details of the defence)

Question 5

What can the defence do if the prosecution fails to satisfy their evidential burden?

Answer 5

The defence can make a submission of no case to answer.

Question 6

How can the defence challenge Visual Identification evidence?

Answer 6

First, if there was a potential breach of COP guidelines, the defence should try to exclude the evidence via s78;

If there is no s78 argument, the defence may argue its exclusion under the Turnbull guidelines

Question 7

What is a Turnbull witness? (Meaning the Turnbull guidelines will apply)

Answer 7

Where the witness identifies D via:

(i) picking D out informally;
(ii) identifies D at the station;
(iii) claims to recognise D as someone previously known to them

AND

D disputes the visual identification

Question 8

What are the (7) Turnbull guidelines?

Answer 8

(i) Length of observation;

(ii) Distance;

(iii) Lighting;

(iv) Conditions;

(v) How much of the suspect’s face did W see?

(vi) whether the person identified was already known to the witness;

(vii) how close the description given by W matches D

Question 9

What are the directions (and warnings) given to the jury regarding visual ID?

Answer 9

Good quality: Warning of the inherent unreliability of visual ID evidence;

ID poor but supported: If the ID is poor but there are other forms of evidence, the judge will implore the jury to rely on the other evidence;

ID poor and unsupported: Judge is likely to dismiss the case.

Question 10

What are the 4 adverse inferences that can be drawn?

Answer 10

(i) S34 - Failure to mention something in an interview that is mentioned at trial;
(ii) S35 - Failure to give evidence at trial (without good cause);
(iii) S36 - Failure to account for object/mark;
(iv) S37 - Failure to account for being at the location of the offence around the time it was committed.

Question 11

What is the difference between s34 and s36/37?

Answer 11

S36/37 can be brought up regardless of what the defence does at trial.

S34 can only be brought up if the defence raises something at trial that wasn’t mentioned before

Question 12

What are the pre-conditions for the drawing of an adverse inference under s34?

Answer 12

(a) interview had to be under caution;
(b) D had to fail to mention a fact relied on at trial;
(c) failure to mention had to occur before D was charged;
(d) questions to D must have been trying to discover whether or by whom the offence had been committed; and
(e) the fact must have been one that D would have been reasonably expected to mention when questioned.

Question 13

What could mitigate a s34 argument?

Answer 13

If D was silent on the advice of their solicitor and it was reasonable for them to do so

Question 14

Can a s34 adverse inference only be drawn if the suspect provided a no comment interview?

Answer 14

No. S34 liability is satisfied when the defendant mentions something at trial they could have reasonably mentioned at interview.

Therefore, they could have answered all questions put to them but if they mention something new at trial s34 can be raised.

Question 15

When can the court NOT draw adverse inferences from a no comment interview?

Answer 15

When the defendant was denied the right to legal advice, whether lawfully or unlawfully.

Question 16

What factors should the court take into account when considering s35?

Answer 16

(a) the burden of proof remains on the prosecution;
(b) D is entitled to remain silent;
(c) court must be satisfied that there is a case to answer;
(d) no adverse inference can be drawn unless the only explanation is that D had no answer or none that would’ve withstood cross-examination

Question 17

Can a person be imprisoned due to adverse inferences?

Answer 17

No. S38 prohibits this.

Question 18

What is a hearsay statement?

Answer 18

Statement not made in oral evidence that is relied on as evidence of a matter in proceedings/

Question 19

What is a statement?

Answer 19

Any representation of fact or opinion made by a person to cause another person to believe the matter.

Question 20

Which of these are hearsay, and which aren’t?

(A) W repeats at trial what they were told by another to prove an element of theft;
(B) police officer repeats evidence at trial;
(C) W states she was friends with V;
(D) D has personal diary entries discussing how V attacked them.

Answer 20

A and B are hearsay (used to prove something in proceedings), C and D are not.

C is just stating a fact that is to believed;

D was not a statement made to be heard by another.

Question 21

How is hearsay admissible at trial? (Statute)

Answer 21

(i) W is unavailable (e.g. death, fear, missing) but are reasonably identified to the court;

(ii) Business and other documents (Received in the course of business and the person who supplied the information for the statement had personal knowledge of it - allows first hand and multiple hearsay);

(iii) Correcting previous statements of witnesses;

(iv) Formal admissions

Question 22

What are the two pre-conditions for admitting hearsay when the witness is unavailable?

Answer 22

(1) oral evidence given would have been admissible as evidence of the matter (must be first-hand evidence);

(2) the person who made the statement is identified to the court’s satisfaction.

Question 23

How is hearsay admissible at trial? (Common Law)

Answer 23

(i) Confession evidence;

(ii) Res Gestae - emotionally overpowered so fabrication is disregarded;

(iii) In the interests of justice

Question 24

When would hearsay be admissible in the interests of justice?

Answer 24

• If it has probative value/is valuable for understanding other evidence in the case;
• circumstances in which the statement is made;
• how reliable the statement/maker appears to be;
• whether there is difficulty in challenging the hearsay and whether this would prejudice the party facing it.

Question 25

What constitutes a confession?

Answer 25

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

Question 26

To what extent is a confession admissible?

Answer 26

Insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court.

Question 27

Can a co-defendant’s confession be used against another?

Answer 27

Yes, any evidence given by a co-defendant which implicates a defendant will be admissible in evidence against the defendant.

Question 28

How can confession evidence be challenged by S76?

Answer 28

If D was oppressed into the confession (i.e. intimidated, yelled at, incessant questioning); or

in consequence of anything said or done which rendered the confession unreliable (E.g. you can go home if you confess)

Question 29

How can confession evidence, that the defendant accepts having made, be challenged under s78?

Answer 29

Where its admission would be so adverse to the proceedings the court ought to not admit it.

Could be made unfair e.g. if there was a significant and substantial breach of COP or PACE (e.g. denying access to legal advice)

Question 30

How is the admissibility of confession evidence assessed in the:

Crown court; and
Magistrates court

Answer 30

Crown court - Voir Dire - trial within a trial, jury never hears;

Magistrates court - Voir Dire - trial within a trial, but judge still hears the confession

Question 31

Can evidence adduced from an inadmissible confession be used?

Answer 31

Yes, but the CPS mustn’t tell the court that the evidence arose from the confession.

Question 32

What is bad character evidence and how is it used?

Answer 32

Bad character means evidence of, or a disposition towards, misconduct.

It effectively means that the past behaviour of a defendant can be used as evidence of the current crime.

Question 33

What are the seven gateways of bad character evidence for the defendant?

Answer 33

(a) D admits it;

(b) D says it during proceedings;

(c) the evidence provides important context for the offence;

(d) previous offences show a disposition to behave in a certain way/commit certain crimes;

(e) co-defendant admits the defendant’s past behaviour;

(f) D provides a false impression of themselves;

(g) D ‘gets at’ a person in proceedings

Question 34

What are the three gateways to admit non-defendant bad character evidence?

Answer 34

(a) it provides important explanatory evidence;

(b) it deals with a contentious point in proceedings and is of substantial importance in the case;

(c) it is agreed that it is to be admitted