Evidence Flashcards
What is an oral testimony?
What a witness says on the stand
What is documentary evidence?
Any recorded document (includes photo, video, etc.)
For documentary evidence can both primary and secondary sources be used?
YES
- Primary is better and usually original
- Secondary is allowed, usually a copy
What is real evidence?
Material object produced in court
What is direct evidence?
evidence that doesn’t require further inferences
What is circumstantial evidence?
evidence from which facts may be inferred
What did ‘ R v Pinnock [2006]’ decide in relation to circumstantial evidence?
- can provide and often does provide a very strong case against an accused person
- Provided the inferences the Crown invite the jury to draw from the circumstances are safe and proper inferences
- The defence will find difficult in persuading court that conviction secured upon them is unsafe
The law of evidence is based on a ‘adversarial system’ what is meant by this?
The judge/jury rely on facts and arguments presented by competing sides.
The CJA 2003 included what to enable wider acceptance of all relevant evidence?
- Hearsay
- Character Evidence
Both more favourable for the prosecution
What is the purpose of imposing limits on evidence?
- Efficiency
- Equity/fairness
- policy grounds (stopping so disclosure on grounds of national security, attorney client privilege)
What are recognised as the key concepts in the law of evidence?
- Admissibility (receivable by the Court) - question of law
- Weight, question of fact
How is admissibility usually determined?
On the basis of relevance?
How did Lord Steyn Randall describe
‘probative of fact in issue’ with regard to admissibility?
Evidence which is capable of increasing or diminishing the probability of the existence of a fact in issue.
What is recognised as ‘relevant’ in respect of admissible evidence?
Whether it is;
(a) probative of fact in issue
(b) Depending on circumstances
Can relevance relate to timing when dealing with admissibility?
If so give an example.
YES
- Behaviour immediately after a murder may be relevant however beehives at a funeral days later would not
What controversial area of admissibility may sometimes be allowed by the Court?
Complainant’s sexual history
- generally irrelevant but there are exceptions
- Regulated by the Youth Justice and Criminal Evidence Act 1999, ss 41-43
What may be excluded under inadmissible evidence?
- Where a witness is not competent
- Prejudicial effect outweighs probative values
- where trial is made unfair
What must the jury do after admissible evidence is produced in court?
Weigh evidence for;
- Reliability
- Credibility (believability)
What is the ‘evidential burden’?
- ” Not a burden of proof” per Lord Bingham
- Obligation on a party to argue sufficient evidence to raise a fact in issue
What is the legal burden of proof?
Obligation on a party to prove a fact in issue e.g. an element of the offence
As a general rule who is the legal burden of proof on?
The prosecution
What did Woolmington v DPP [1935] state in relation to burden of proof?
- that the “golden thread” is to be seen that duty of prosecution is to prove prisoner’s guilt
- Except where defence of insanity is produced and subject to any statutory exception
How did the ECHR way in on the burden of proof being the prosecutions burden?
Article 6(2)
- Every person concerned innocent until proven guilty
- Therefore, prosecution must prove such a person is guilty
What exceptions are there to the general rule on burden of proof?
- Common law defence of insanity
- Statutory provisions (expressly or impliedly)
When may the burden of proof be reversed?
When statute places legal burden upon the defence
Does a reverse burden of proof violate a persons right to a free trial?
- Court must look at reasonableness and proportionality as per Sheldrake v DPP 2005
What choice does a Court have where it is not deemed reasonable or proportionate to reverse the burden of proof?
(1) Read in a way which is compatible with convention rights
(2) Make a declaration of incompatibility
How did the Court in R v Lambert [2002] act in line with Convention rights?
By interpreting the legal burden as an evidential burden.
What is the standard of proof for the prosecution and the defence in criminal proceedings?
Prosecution - Guilt beyond a reasonable doubt
Defence - balance of probabilities
What is the standard of proof for an evidential burden?
No fixed standard
- Question of law decided by the judge
What has been the slight shift away from “beyond reasonable doubt”
- Prosecution only succeed in proving D guilty if jury made sure of guilty
- If jury sure as to guilty must return verdict of guilty
- If unsure of guilty, or of innocence must return verdict of not guilty
What is a rebuttable presumption?
- Assumption made by a Court that something is true
- Can be proven to not be the case
E.g. presumption of innocence
What is a conclusive presumption?
Presumptions which cannot be rebutted
-E.g. No consent to sex once deceit has been established
Who are Questions of law answered by?
The trial judge
Who are questions of fact answered by?
- The jury
- Or the judge if no jury present
- Questions of law and fact kept separate in these cases
What type of a question would be on the admissibility of evidence?
A Question of law therefore it would be one for the trial judge to answer
How are the jury protected from inadmissible evidence?
Voir Dire
- Jury may be sent out whilst issues on admissibility are being determined
Describe the trial procedure, numbering from 1-5.
(1) Prosecution present their case
(2) Defence may argue no case to answer
(3) Defence present their case
(4) Verdict (Guilty or Not guilty)
(5) Sentencing (if convicted)
Who is a competent witness?
s52 of the Youth Justice and Criminal Evidence Act 1999
- One who can understand questions and give understandable answers
If a witness is “compelled” by a court what does this mean?
That they may be required to give evidence
- risk of contempt of court if they refuse
Can an accused person act as a witness for the prosecution?
NO
- Accused not competent to give evidence for prosecution
Can an accused person give evidence for themselves or co-accused?
YES
- They are competent witnesses in this instance BUT are not compellable
- As per the Youth Justice and Criminal Evidence Act 1999, s53
If an accused remains silent can evidence be drawn from this silence?
YES
- Inferences can be drawn from silence
- As per the Criminal Justice and Public Order Act 1994, s.35
Can spouses/civil partners of an accused be compelled to give evidence in Court?
- Only in relation to certain offences
- E.g. domestic abuses and offences against those under 16
- As per the Police and Criminal Evidence Act 1984, s.80
What type of examination is allowed by the party who calls a witness?
Direct examination
What type of examination is allowed the opposing party during cross-examination
Leading questions are allowed
What may a party do when there own witness is undermining their case?
- Ask the judge to cross examine and use leading questions
- Witness known as a hostile witness
Under what circumstances may evidence be excluded despite it being relevant?
- Distorting Effect (too prejudicial)
- Unreliable
- Fair trial rights and integrity of justice system
- Discipline on police etc. and as remedy for wrongs
- Other public policy
How is hearsay defined?
An out of court statement by a person other than the witness tendered for the truth of its contents
EXAMPLE
If X tells me that he has shot Y is that direct evidence, or hearsay? Explain.
Not direct evidence of the shooting
- it is direct evidence that you have spoken to X and of words used
- It is hearsay that he actually committed the shooting
Why is the general rule that hearsay be excluded?
- Cannot be subjected to cross-examination
- Not the best evidence
When may hearsay be admissible in Court?
Criminal Justice Act 2003
- Where the parties agree
- When a Court deems it in the “interests of justice”
If a Court is considering allowing hearsay evidence “in the interests of justice”, what must in consider?
- Circumstances of the statement
- Reliability of the statement and maker of the statement
- Maker of the Statement is unavailable to testify
How was the right to silent viewed historically?
That defendant has an absolute right to remain silent
- privilege against self-incrimination
- fact-finder could not make adverse inferences from defandant’s silence
How is a defendant’s right to remain silent viewed today?
A qualified right to remain silent
- Fact-finder can draw negative inferences from D’s silence
- D made aware of this right and possible consequences when cautioned by the police
How is a confession defined by statute in England?
Police and Criminal Evidence Act 1984, s.82(1)
- “any statement wholly or partly adverse to the person who made it … whether made to a person in authority or not and whether made in words or otherwise”
Can a confession be excluded as hearsay?
Hearsay is admissible if allowed by another rule
- In a case where it is argued to be inadmissible, Court may find it to be “in the interests of justice” for it to be heard as per CJA 2003, s.114
When may a confession be excluded by a Court?
If represented to Court that confession was obtained;
(a) by oppression of person who made it or;
(b) In circumstances which were likely to make the confession unreliable.
When would a Court allow a confession to be submitted in to evidence?
Where the prosecution proves beyond a reasonable doubt that the confession was not obtained using oppression or using unreliable means.
- As per s.76 of the PACA 1984
What is oppression according to the relevant legislation?
PACE, s.76(8)
- includes torture, - inhuman or degrading treatment
- Use of threat of violence
What happened in ‘ R v Miller, Paris and Others (1993)’ and what was the outcome of the case?
- Defendant appealed against murder conviction
- Defendant had no lawyer present in interviews where he made confession and had also denied crime in previous interviews
- Defendant had been subject to 13 hours of question without lawyer
- Verbal Bullying
- And intellectually disabled
HELD - Allowing appeal on the grounds the police’s conduct satisfied oppressive behaviour as per s.76(2)(b) of PACE 1984
When would a confession be deemed unreliable?
- If suspect is intellectually disabled
- If police fail to identify a vulnerability of the suspect
- If inducements are made by police to the suspect with regard to bail or lesser charge
What happened in the case of ‘R v Delaney (1988)’
- Defendant convicted of indecent assault
- Only evidence against defendant was his confession
- He was 17, had been interviewed without solicitor present and had a low IQ and educational difficulties
HELD - risk of false confession was too high conviction quashed
The treatment of a suspect is of upmost importance. What are two of a suspects most basic rights according to legislation?
- PACE s.56 (Right to have someone told of arrest)
- PACE s.58 (Right to legal advice)
What does CODE C and CODE E relate to in the PACE Codes?
CODE C - requirements of the detention, treatment and questioning of a suspect
CODE E - Requirement of audio recording at police station
Does breach of the law or code satisfy grounds for inadmissibility of a confession
NO
- Not in itself grounds for inadmissibility but very relevant in assessing oppression and unfairness
What happens once a confession is admitted in to evidence?
- Fact finder must determine how much weight to give the confession
(i) is it believed to be true in circumstances
(ii) Could the confession be false due to other factors
Are facts discovered through an inadmissible confession also inadmissible?
NO
- Not automatically excluded
- s76(4) of PACE 1984 explains that although the confession is excluded the admissibility in to evidence of (a) any facts discovered as a result will not be excluded
If facts are admissible into evidence as per s.76(4)(a) of PACE, despite the confession not being, can the person confessing being revealed?
NO
- The source of what is discovered cannot be revealed
If there is the possibility of an effect on the fairness of proceedings due to evidence being used obtained from an inadmissible confession, can it still be used?
- subject to discretion, will likely be excluded if it will affect fairness of proceedings
EXAMPLE
Mable confesses to having stole a painting from a gallery. The painting is subsequently recovered from her attic. Her confession becomes inadmissible.
Explain, if any, what evidence can be used in Court.
- Evidence recovered as a result of the painting would still be admissible
- The prosecution would not be able to disclose how it was discovered however
What does the common law favour in relation to prejudicial effect and probative value?
That the Court finds prejudicial effect to outweigh probative value.
Will a Court allow evidence in to proceedings which is likely to have an adverse effect on the fairness of those proceedings.
NO
- s.78 of PACE provides that a Court may refuse evidence the prosecution relies on if it appears to the Court that admitting it would have an adverse effect upon proceedings
What case saw the use of a judges discretion under s.78 of PACE 1984 AND showed that oppression and unreliability may not be the only grounds to have a confession thrown out?
R v Mason 1988
- Police used deceitful means to obtain a confession by stating they had strong evidence against the accused despite having none
- The accused was subsequently convicted after confessing
- On appeal the trial judge held that he had discretion under s.78 to exclude evidence which may have an adverse effect on fairness of proceedings
- HELD - that it was unfair on proceedings to use accused’s confession as it was obtain through lies and deceit therefore as this was the only evidence against the accused conviction was quashed
Under the common law what type of good character evidence was permitted?
Evidence of general reputation of the accused to show he was less likely to have committed the offence
Under the common law what type of good character evidence was inadmissible?
Specific good deeds which were carried out by the accused
What did the Criminal Evidence Act 1898 allow for?
Allowed accused to testify as to his own disposition, rather than just evidence that related to an accused’s reputation
When evidence of good character is given it must be explained to the jury, what case lays out the foundations for how such a direction should be given?
R v Vye 1993
What were the ‘two limbs’ recognised by the Vye case?
(1) the relevance of good character to credibility
(2) the relevance of good character to the question of guilt or innocence
When else must Vye direction be given (except when defendant or character witness give evidence)?
Where the defendant relies in support of his defence of exculpatory statements made by the police and others, judge should direct jury to review statements as good character is relevant to credibility of accused.
What does bad character evidence more generally focus on?
More about prior history rather than general reputation
What was the old rule on bad character evidence?
Prosecutor generally prohibited from introducing evidence of a defendant’s bad character due to;
(a) Question relevance
(b) Highly prejudicial
What did the Criminal Justice Act 2003 abolish?
s. 99
- Abolished common law rules governing admissibility of bad character evidence and allowed relevant character evidence to now be admissible in court.
Under the CJA 2003, s.101 when will bad character evidence be admissible?
- If agreement is made between the parties
- If raised by the accused
- If such character is important explanatory evidence
- If it is relevant to an important matter
- If it corrects false impression given by the defendant
- If the defendant has made an attack on the character of another
What does s.98 of the CJA 2003 define “bad character as”
A person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part
What does s.98 allow to be added in to evidence which under the common law were not allowed?
- Prior convictions
- Prior cases where the defendant was acquitted
Does s.99 of CJA 2003 breach the right to a fair trial?
NO
- X v Austria (1965) and Unterpertinger v Austria [1991] confirm right to a fair trial is not breached by admitting previous convictions which relate to the case.
What common law rules were preserved by the CJA 2003?
Rules on admissibility of reputation evidence
Why do we need expert witnesses?
Experts are needed as some things are out with the Courts competence and experience, e.g. medical and scientific evidence
What is expert opinion
- Evidence of an expert will be beyond the competence, experience and expertise of a normal person and can therefore form and opinion on the basis of their expertise.
- a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case.
What happened in R v O’Leary 2013?
- accused man was promising work to numerous individuals
- he accepted payments from two individuals, who suffered from dementia
- accused defrauded both by doing no work
- he was convicted of fraud
APPEAL - dismissed by the Court as despite allowing evidence of his bad character from prior conviction, it was not held as prejudicial under s.78 of PACE as he attempted to mislead the jury saying he had a clean record.
What were the FACTS in R v A (No 2) 2002?
- Case where complainant alleged she had been raped by the defendant
- The complainant averred that she was walking to hospital with the defendant to visit her boyfriend
- He slipped over and she proceeded to help him up
- The claimant alleged that the defendant pulled her to the ground and raped her
- Defendant argued that the sex was consensual
- Defendant submitted that the two were engaged in a sexual relationship with the most recent sexual arrangement having occurred one week prior
- Defendant sought leave under s.41 of the YJCEA 1999 as he wished to cross examine claimant on previous sexual relationships to support defence
What was the JUDGEMENT in R v A (N0 2) 2002
JUDGEMENT
- UKHL unanimously stated that the application of s.41 of the Act provided any evidence relating to previous sexual relationships would be inadmissible.
- They also believed that to exclude such evidence may breach defendant’s right to a fair trial
- The Lords made no declaration of incompatibility and instead utilised obligation under s.3 of the HRA to give effect to convention rights as far as possible
- Lords stated there to be a test of admissibility of sexual evidence
- This test is whether such evidence is “so relevant to the issue of consent that to exclude it would endanger” right of defendant under article 6
- Lords stated discretion was on the trial judge on whether to allow evidence
What was the alternative feminist judgement of the case of R v A (No 2) 2002?
- Clare McGlynn gave her own judgement of the case believing the Lords to be fundamentally wrong in their judgement
- She stated there to be no contravention of the defendant’s right to a fair trial
- The defendant’s defence may be belief in consent, but McGlyn argues that consent must be given afresh on every occasion under which sexual intercourse occurs
- She disregarded the argument that because the complainant had consented in the past did not mean there could be belief in her consenting in the future ( on that basis no breach of Article 6)
- McGlynn states that the evidence put forth by the defendant would be irrelevant to the proceedings and therefore should be inadmissible
- If for some reason the evidence was deemed relevant then she argued it would be of little probative value and outweighed by the risk of prejudice on the complainant.
