Evidence Flashcards
What are the general rules for evidence?
If the evidence is relevant to a fact in issue, it is likely to be admissible.
After that, it must comply with admissibility rules.
What is hearsay evidence?
A statement made out of court (either in writing or orally) and repeated in court.
What are the rules about hearsay?
General rule, hearsay is not admissible
What are the exceptions to hearsay
s.9 CJA 1967- section 114 admissibility of hearsay evidence- s 116 (reasons why someone cannot attend court).
The party who wish the party’s statement to be read out will then need to prove that it is not possible for the person to attend court.
However, if it is that the person is not willing out of fear, then the court must grant leave (only if it is int he interest of justice or possible to give witness statement by another means). The other side can then argue against this (s126 safeguards- adverse effects of the proceedings). Judge will then give jury the appropriate direction
What is Bad Character evidence and what are the 7 gateways?
Bad Character can only be admissible if, but only if:
1) All parties agree to the evidence being admissible. (the parties may agree or the defendant may want to tell the court about things they have done in the past)
2) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it
3) It is important explanatory evidence. (this refers to evidence to allow the court or the jury to properly understand the other evidence in the case, and the value of understanding the case is substantial- not just to complete the picture)
4) it is relevant to an important matter in issue between the defendant and the prosecution. (First, have to identify the relevant issue. A common way of using this gateway is to identify if the defendant has a propensity to commit these kinds of crime, or even a propensity to be untruthful. This can be found by looking at previous crimes. Hamson v Others- important case- important that the history of offending established a propensity to commit further offences. Moreover, whether or not that propensity makes it more likely the defendant was the one to commit the offence. No minimum number of convictions, the fewer the harder.)
5) it has substantial probative value in relation to an important matter in issue between the defendant and co-defendant. (usually used in a cutthroat defence (eg multiple defendants blaming each other), this is used if one defendant wishes to tell the jury about why it would be another defendant based on their history)
6) it is evidence to correct a false impression given by the defendant. (only available to the prosecution, eg if the defendant has conveyed themselves in a positive light)
7) the defendant has made an attack on anther persons character (eg may have accused the prosecution witness of lying- this must be beyond the mere denial. Point is to make the jury aware of the person making those comments.
What bad character?
Bad character is evidence of, or evidence of a disposition towards, misconduct or other behaviour that is not:
1) concerning the alleged offence with which the defendant is charged
2) misconduct in connection with the investigation or prosecution of that offence
What are the safeguards for bad character?
1) The court must not admit evidence under gateways D or G if it would likely have an adverse effect on the proceedings (s 101 (3))
2) dealing with gateway D- evidence is not admitted due to time since last conviction (s 103 (3))
What are the timelimits for Hearsay?
Prosecution must serve notice not more than:
1) Magistrates court- not more than 20 business days (20 days) after the defendant pleads not guilty
2) Crown court- not more than 10 business days (14 days) after the defendant pleads not guilty.
A defendant must serve notice as soon as possible
Response: As soon as reasonably practicable and in any event not more than 10 business days (14 days) after service of the notice to introduce the evidence
What are the time limits for Bad Charater?
Prosectuion evidece:
1) Magistrates court- not more than 20 business days (28 days after the defendant pleads not guilty
2) crown court- not more than 10 business days (14 days) after the defendant pleads not guilty
Co-Defendants Evidence
As soon as reasonably practicable and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based
Response:
Not more than 10 business days (14 days) after service of the notice
What are the two ways a confession can be challenged by the defence?
1) Section 76 PACE- Matter of Law- a confession must not be put to the court if it was obtained through oppression or in consequence of something said or done. Prosecution must then be able to prove beyond reasonable doubt that it was obtained without that, or it will be deemed inadmissible.
2) Section 78 Pace- defence could argue that to let the confession into evidence would have an adverse effect on the fairness of the proceedings. They have to demonstrate as to the circumstances that arose.
What is a Voir Dire?
A trial within a trial- when a trial is needed to sort facts within a case- eg if there is an argument over whether there was a breach of PACE, and so evidence may need to be called
What are the rules/guidance around visual identification?
R v Turnball- if a case relies solely on visible identification, judge will assess the quality of the Identification using ADVOKATE. They then can decide whether the evidence will remain admissible
What is a Turnbull direction?
This is sued when a case rests on Identification and it is of:
1) good quality
2) there is other evidence supporting the identification
The judge will warn the jury that:
1) there is a need for caution to avoid the risk of injustice
2) a witness who is honest and convinced in their own mind may be wrong
a witness who is convincing may be wrong
4) more than one witness may be wrong
5) a witness who is able to recognise the defendant, event when the witness knows the defendant very well, may be wrong.
What is the legal burden?
The prosecution has the legal burden to prove beyond reasonable doubt the defendant is guilty.
If a party is trying to prove or disprove something, that is the legal burden
What is the evidential burden?
In self defence- defence has the evidential burden. They have to bring evidence to prove an issue to bring to court
