Evidence

Question 1

Admissibility and Inadmissibility: General and Opinion

Answer 1

RELEVANCE

• All evidence which is sufficiently relevant to the facts in issue is admissible.
• All evidence which is irrelevant to the facts in issue should be excluded.

BUT NOT ALL RELEVANT EVIDENCE IS ADMISSIBLE - IF AN EXCLUSIONARY RULE APPLIES, DOESN’T MATTER HOW RELEVANT EVIDENCE MIGHT BE - WILL NOT BE RECEIVED BY THE COURT.

OPINION EVIDENCE:

• generally inadmissible
• witness can give facts as he or she has actually perceived them
• only expert can give opinion evidence.

Question 2

Evidence of Good Character

Answer 2

If a defendant has ‘good character’, defence should highlight this to the jury.

If this occurs, judge in summing up to jurty must give a direction explaning the relevance of previous good character
= a VYE DIRECTION (R. v Vye)

(1) Propensity
- due to the defendant’s good character he is less likely to have commited the offence.

(2) Second limb only relevant if defendant has given evidence to the police and/or answered questions in interview
- under this limb, judge will direct the jury that the defendant’s good character supports his credibility as a witness - i.e. he is more CREDIBLE

Question 3

Competence and Compellability of Witnesses

Competence = allowed to give evidence
Compellable = can be forced to give evidence even if they do not want to.

(Tabbing in purple)

Answer 3

ORDINARY WITNESSES (other than defendant or defendant’s spouse)

• competent to give evidence for both prosecution and defence
• not competent if of defective intellect
• all competent witnesses are compellable

THE DEFENDANT

For the DEFENCE

• competent to testify in his own defence - s.1 CEA 1898
• NOT compellable (but adverse inferences can be drawn)

For the PROSECUTION
- defendant is neither competent nor compellable

THE DEFENDANT’S SPOUSE

For the DEFENCE
- unless jointly charged, spouse is both competent and compellable under s.80 PACE

For the PROSECUTION
- spouse is competent
- but not compellable unless s.80 (3) PACE applies
- s.80 (3) PACE will apply if:
> the offence involves an assault, injury or threat of
injury to the spouse or to a child under 16; or
> the offence is a sexual offence on a person under 16
> or the offence consists of conspiring, attempting,
aiding or abetting either of the above offences.

CO-DEFENDANTS

• neither competent nor compellable for prosecution
• competent for defence but not compellable in same way as they are in their own defence
• if the case against co-defendant is discontinued, or they plead guilty, they become an ordinary witness and those rules apply.

Question 4

Identification Evidence

Answer 4

THE TURNBULL GUIDELINES (R. v Turnbull)

The weight of evidence in relation to the witness’ initial sighting of the suspect.

• Judge should warn jury of special need for caution before convicitng the accused in RELIANCE on the correctness of the identification, if the prosecution’s case rests wholly or substantially on the correctness of one or more identifications of the accused, and the defece alleges identification to be mistkaen.

Judge should make a ‘Turnbull’ direction

• Instruct jury as to the reason for the need for such a warning (mistaken witnesses can be convincing ones!)
• Direct jury to examine the circumstances in which the identificaiton by each witness was made
• Remind jury of any specific weaknesses appearing in the identification evidence.

Have regard to the ADVOKATE criteria!

Question 5

ADVOKATE criteria (quality of identification evidence)

Answer 5

AMOUNT OF TIME UNDER OBSERVATION
- how long did the witness have the suspect in view?

DISTANCE
- what was the distance between the witness and the suspect?

VISIBILITY
- what was visibility like at the time of the identification?

OBSTRUCTION
- were there any obstructions in view of the witness?

KNOWN OR SEEN BEFORE
- had the witness ever seen the suspect before; if so, when?

ANY REASON TO REMEMBER
- did witness have any special reason for remembering the suspect?

TIME LAPSE
- how long has elapsed since the witness saw the suspect?

ERROR OT MATERIAL DISCREPANCY
- are there any errors or material discrepancies between descriptions given in the witness’ first and subsequent accounts?