Evidence

Question 1

Who bears the burden of proving the elements of the offence?

Answer 1

The prosecution always

Question 2

What is a legal burden?

Answer 2

Requirement to prove an element of your case to prescribed standard.

Question 3

What standard must the prosecution prove in relation to their legal burden?

Answer 3

Must convince the jury of guilt ‘so they are sure’ which means the same as beyond reasonable doubt

Question 4

What standard is normally the case for defence if they have to prove anything?

Answer 4

Normally just the balance of probabilities

Question 5

What is an evidential burden?

Answer 5

Where some evidence has to be produced to satisfy judge that matter should be argued before jury

Question 6

If there is a legal burden will there also be an evidential burden?

Answer 6

In every case, if you have a legal burden to prove a fact in issue, there is an evidential burden of passing the judge with the same evidence

Question 7

When will the legal burden and evidence burden become detached?

Answer 7

In very rare cases such as proving self-defence

Question 8

What is the legal and evidential burden in relation to duress?

Answer 8

If sufficient evidence is raised in relation to duress to leave it as a live issue, prosecution must disprove it beyond a reasonable doubt

Question 9

What is the legal and evidential burden in relation to alibis?

Answer 9

If alibi is raised, then Judge must direct the jury that although the defence have raised the defence, it is for the prosecution to disprove the alibi so the jury are sure.

Question 10

What are the four key aspects excluding confessions?

Answer 10

• advance notice
• timing
• voir dire
• submissions

Question 11

What must be done for excluding a confession in the Magistrates’ Court?

Answer 11

Advance notice - issued should be raised in defence statement. any defence skeleton argument in support least 10 business days before the trial and the prosecution response 5 business days after that

Timing - any application under s 76 should be dealt with as a preliminary issue

Voir dire - if application is under s 76 or both s 76 and s 78 and the evidence is disputed the magistrates should hear evidence on the matter and decide the applications as a preliminary issue. If however the application in a magistrates’ court is only under the s 78, the magistrates have a discretion to hear all evidence in the usual way and decide upon its admissibility at a later stage

Question 12

What must be done for excluding a confession in the Crown Court?

Answer 12

Advance notice - issued should be raised in defence statement. generally at PTPH, judge is likely to order, when defence is to serve a skeleton argument in support of any s 76/78 arguments, when the prosecution serve a response and when the arguments will be heard

Timing - the application to exclude the confession can be made at a pre-trial hearing listed specifically for this purpose or it can be dealt with just prior to opening the case to the jury (and in the absence of the jury)

Voir dire - required where the application is made under s 76 (and s 78) and the evidence founding the application is in dispute

Question 12

When should a Turnbull direction be given?

Answer 12

Should be given when the case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification

ie where the prosecution have a witness that positively identifies the defendant and the defence deny it was the accused

Question 13

What is a Turnbull direction?

Answer 13

Where the judge warns the jury of special need for caution before convicting the accused in reliance on the correctness of the identification, whenever the prosecution case against an accused depends wholly or substantially:

• on the correctness of one or more identifications of the accused and
• the defence alleges the identification to be mistaken

Question 14

What three key elements must the judge include in a Turnbull direction?

Answer 14

• instruct the jury as to the reason for the need for such a warning; mistaken witnesses can be convincing
• direct the jury to examine the circumstances in which the identification by each witness came to be made
• remind the jury of any specific weaknesses in the identification evidence

Question 14

What will happen if there is other evidence that supports the identification of the accused?

Answer 14

The judge will direct jury to consider any other evidence capable of supporting the evidence of the identification of the defendant.

Question 15

When will the judge withdraw the case from the jury?

Answer 15

If it is poor and unsupported

Question 16

What questions must the judge consider deciding whether to remove the case from the jury?

Answer 16

• what is the quality of the identification evidence?
• is there any other evidence to support the correctness of the identification?

Question 17

What should the jury be directed to consider in relation to visual identification evidence? (Mnemonic ADVOKATE)

Answer 17

A - Amount of time under observation - how long did the witness have the accused in view?

D - Distance - What was the distance between the accused and the witness?

V - Visibility - What was the visibility like at the time?

O - Obstructions - Were there are any obstructions to the view of the witness?

K - Known or seen before - Had the witness ever seen the accused before? If so, where and when?

A - Any reason to remember - Did the witness have any special reason for remembering the accused?

T - Time lapse - How long has elapsed between the witness seeing the accused and the ID procedure being held?

E - Error or material discrepancy - Are there any errors or material discrepancies between the first description given by the witness and the actual appearance of the accused

Question 18

What happens if the quality of identification evidence is good?

Answer 18

The jury can safely be left to assess the value of the evidence, regardless of whether there is other evidence to support it - provided adequate warning has been given with need for caution

Question 19

What happens if quality of identifying evidence is poor?

Answer 19

Judge should consider whether there is evidence to support correctness of identification

• If not, judge should withdraw case and direct acquittal
• If there is, judge can leave weak identification to be assessed by jury alongside supporting evidence

Question 19

When will a dock identification be allowed?

Answer 19

Very very rarely as can be extremely prejudicial to defendant

Trial judge retains discretion to allow it provided that it will not jeopardise fairness of the accused’s trial