Evidence Flashcards
What are facts in issue?
Facts that any party needs to prove in order to prove its case.
Prosecution: the facts needed to prove the offence charged.
Court then tries to narrow the issues as much as possible to see what elements the defence agree upon.
How do you prove a fact other than by calling a live witness?
- agreeing a witness statement as true by consent of the parties
- agreeing any fact between the parties
- a judge or jury to take ‘judicial notice’ of the fact
Agreeing a witness statement as true by consent of the parties
- Witness’s statement can be agreed as accurate and true in its written form
- Statement is then simply read out and carries the same weight as if the witness had attended in person, sworn and given evidence in the witness box
- Evidence is only agreed this way if there is no challenge to the evidence.
- If evidence is disputed, then the witness must be called orally so the court can see and assess the dispute being aired openly and decide accordingly
Agreeing a fact between the parties
Another way to prove a fact is simply for the advocates in a case to agree that the fact is so.
The fact is reduced to writing and both parties agree and sign the agreement.
Judicial notice
If a fact is known generally, can take judicial notice. “The economy is doing poorly”
If a fact that is searchable e.g. which counties border Staffordshire, the parties can ask the judge to take judicial notice on enquiry - and let the judge look up the answer.
Jurors cannot look up the answer.
Different forms of evidence
a) oral evidence given by a witness in court (most common)
b) written form:
i) agreed statements
ii) admitted facts
c) real evidence
d) direct evidence
e) circumstantial evidence
f) a view
Real Evidence
Objects and things which are brought to court for inspection.
Sometimes in the form of documents which are exhibited by witnesses who vouch for their origin.
Direct evidence v circumstantial evidence
Direct evidence: namely evidence that a witness gives of having had direct experience of a matter in issue e.g. someone saw the defendant at the train station at midnight
Circumstantial evidence: evidence from which facts are inferred e.g. found a train ticket for a train on d arriving at midnight
A view
Occasionally, juries can visit a scene of a crime or leave court to view an object that cannot be brought into court.
Observations become evidence in the case.
Admissible and inadmissible evidence
For evidence to be admissible it must be relevant.
Relevance is established by whether the evidence is logically probative of a fact in issue. - i.e. does the evidence tend to prove or disprove a fact in issue.
Exclusionary rules
Considered after relevance.
If relevant can still be subject to an exclusionary rule e.g. fairness of a trial.
E.g. if the police acquired evidence illegally then the exclusionary rule would prevent the use of it in court.
Weight
All evidence varies in terms of how strong, reliable and valuable it is.
Attaching the right degree of weight to a piece of evidence is a matter for the jury.
Advocates will typically devote considerable effort into persuading the jurors as to what weight they should attach to the evidence.
If evidence is problematic the judge may intervene to rule it inadmissible. (No one could put reasonable reliance on the evidence).
Three types of questions to ask about relevance
1) Is the evidence relevant? (to a fact in issue)
2) Is there an exclusionary rule? (rules around unfairness)
3) Is there an inclusionary rule?
Inclusionary rules
Some evidence is inadmissible per se e.g. bad character evidence.
Will need to consider relevance generally and then consider if there is a way to admit the evidence despite the general embargo.
All still subject to s 78.
Relevance, discretion and admission
(1) Relevance - all decisions on admissibility start with question of relevance
(2) Exclusionary discretion - the final filter before any evidence is admitted is s78
(3) Inclusionary rule - where the evidence is a type which can’t be admitted without an inclusionary rule:
(i) does the inclusionary rule apply?
(ii) Does the legislation make any provision to exclude evidence that would otherwise pass through the exclusionary rule?
s. 78 PACE
Safeguard which allows courts to find evidence as inadmissible is the PACE procedures are not followed.
– so for prosecution evidence which has not been collected or gathered in the appropriate way.
s. 78 wording
In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
Examples of wrongly obtained material under PACE
- Searches without proper authority
- Interviewing witnesses without cautioning them properly first
- Denying access to a solicitor
- Oppression or tricks in the interview
- Not following proper procedures in identification cases needing parades
s78 - significant and substantial breaches
Not as simple as saying that if there is a breach of PACE then automatically inadmissible - much more nuanced
Breach must be significant and substantial!
Q: what the effect the evidence will have on the fairness of the trial (courts sometime can conclude that the evidence is such good quality that the verdict would reflect the truth of the situation)
Common law exclusion of evidence
Courts can exclude evidence when the “probative value of the evidence is outweighed by its prejudicial effect”
Example: eavesdropping is not in PACE and is not against the rules but if the information is spotty/not contextualised
- can apply under common law that it is more prejudiced than probative, despite it being lawfully obtained.
What is an application for dismissal?
Pre-trial application to have the charges against a defendant dismissed.
Schedule 3 of Crime and Disorder Act 1998
CrimPR 9.16
Application can be made:
- only after a defendant is sent by MC for trial in CC
- only after the d has been served with the evidence relating to the offence
- only before the defendant is arraigned
Application for dismissal
Judge shall dismiss a charge if it appears to him that the evidence against the application would not be sufficient for him to be properly convicted.
Same test as no case to answer:
Judge should stop the case:
(a) where there is no evidence that the crime has been committed by the defendant; or
(b) where the prosecution evidence taken at its highest is such that a properly directed jury could not properly convict on it
No case to answer: R v Galbraith
Can submit after the prosecution has presented all of its evidence (in both MC and CC).
In cc, application will be made in the absence of the jury.
Judge should stop the case:
(a) where there is no evidence that the crime has been committed by the defendant; or
(b) where the prosecution evidence taken at its highest is such that a properly directed jury could not properly convict on it
Limitations of s78
Only applies to evidence on which the prosecution proposes to rely, so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.
