Evidence Flashcards
What is the definition of evidence?
Material used to prove/disprove a fact in issue or support/undermine the credibility of a witness.
What are the facts in issue?
The facts the prosecution bear the burden of proving/disproving in order to establish the guilt of the accused and the facts that in exceptional cases, the accused bears the burden of proving in order to establish the defence.
How can a fact be proved in court?
- Live oral testimony.
- Read statement.
- Judicial notice.
- Agreed facts.
What is evidential burden?
The burden to raise some evidence to satisfy the judge that the matter should be argued before the jury.
In what circumstance does the law put a burden on the defence?
Where an active defence is being run, such as insanity or diminished responsibility.
What is the legal burden?
The requirement to prove an element of your case to a prescribed standard.
What is the legal burden standard for the prosecution?
The standard to which prosecution proof is to convince the jury of guilt ‘so that they are sure’ which means the same as ‘beyond reasonable doubt’.
What is the legal burden standard for the defence?
The standard for everything the defence has to prove is the ‘balance of probabilities’.
What is an evidential burden?
Where you have to raise some evidence to satisfy the judge that the matter should be argued before the jury.
Where will the legal burden of proof normally lie in a criminal case?
Generally the prosecution bears the legal burden of proving all elements of the offence necessary to establish guilt.
Where will the legal burden of proof normally lie in a criminal case?
Generally the prosecution bears the legal burden of proving all elements of the offence necessary to establish guilt.
What is the standard of proof normally required in a criminal case?
So that the jury are sure of guilt / beyond reasonable doubt.
What three questions should be asked about evidence?
- Is the evidence relevant?
- Is there an exclusionary rule?
- Is there an inclusionary rule?
What is an exclusionary rule in regard to evidence?
Some evidence should not be admitted as to do so it would be unfair.
Exclusionary discretions are;
S.78 PACE - for prosecution evidence wrongly obtained through significant and substantial breaches of PACE.
Common law - when the probative value of the evidence is outweighed by the prejudicial effect.
What is an inclusionary rule in regard to evidence?
Where the evidence is of a type that can’t be admitted without an inclusionary rule.
E.g. bad character evidence - it does not relate to the offences charged and is generally inadmissible.
Name some examples of evidence that could be wrongly obtained according to PACE.
- Searches without proper authority.
- Interviewing witnesses without cautioning them properly first.
- Denying access to a solicitor.
- Oppression or tricks in interview.
- Not following proper procedures in identification cases needing parades etc.
What does s78 of PACE say regarding a breach?
A breach generally needs to be significant and substantial in order to trigger the court to exclude evidence.
What is the common law power regarding evidence?
The common law power is for the courts to exclude evidence when the ‘probative value of the evidence is outweighed by its prejudicial effect”. Does the evidence do more harm than good in terms of assisting the tribunal of fact to reach a decision on the issues?
“A question of logic as to whether there is a sufficient relationship between the evidence and the fact in issue.”
To what concept does this statement refer?
Relevance.
Some evidence is deemed by its nature to be inadmissible per se. What kind of rule would you need in order to admit evidence of this nature?
An inclusionary rule.
Examples of inclusionary rule can be found with the gateways to admitting bad character under s. 101 Criminal Justice Act 2003.
What are the principal ways of excluding evidence and/or seeking to bring a prosecution case to an end?
- Application for dismissal.
- Submissions of no case to answer.
Applications to exclude evidence under s.78 of PACE. - Applications to exclude confessions under s.76 PACE.
- Applications to exclude evidence under the preserved common law provisions s.82(3) PACE.
- Abuse of process applications.
What is an application for dismissal?
A pre-trial application to have the charges against a defendant dismissed.
When can an application for dismissal be made?
- Only after a defendant is sent by the magistrates’ court for trial to the Crown Court.
- Only after the defendant has been served with the evidence relating to the offence and
- Only before the defendant is arraigned.
