Evidence Law

Question 1

What is meant by facta probanda?

Answer 1

Facts to be proved - this is where essential evidence is required to prove the accused committed the crime they are charged with.

Question 2

What is meant by facta probationis?

Answer 2

Known as facts of the proof - Evidentual facts which assist in proving the facta probanda.

Question 3

What is meant by corroboration?

Answer 3

This is where two independent sources of evidence are needed to back up each other in proving the essential facts.

Question 4

What is the “Moorov Doctrine”?

Answer 4

Established in the case of Moorov v HM Advocate 1930.

• Where the accused’s course of conduct is similar in three ways (time, character and circumstance)
• Self- Corroboration is allowed of there is sufficient interrelation of time, character and circumstacne
• In this case 21 women telling of assault and sexual assault which corroborated each other
• This case explained that evidence from one charge could corroborate another charge providing it satisfied time, character and circumstance.

Question 5

What is stated in s6(2) of ECHR

Answer 5

Every person charged with a criminal offence will be innocent until proven guilty.

Question 6

Which types of witnesses are seen as competent?

Answer 6

ALL witnessess are allowed to testify unless they are proved not competent to do so,

Question 7

When would evidence have been improperly obtained?

Answer 7

Where it has been obtained unlawfully, illegally or irregulary.

Question 8

What are the facts of the case Lawrie v Muir 1950?

Answer 8

• Two inspectors who worked for the Milk Marketing Board (MMB) produced a warrant to inspect the accused’s premise
• The inspectors were granted access by the accused, however there was no contract between the MMB and the accused
• The inspectors found that the accused had taken milk bottles and was using them for her own purposes but this evidence was deemed as illegaly obtained and thererfore inadmissable in court.
• The basis being that inspectors had the right to inspect premises which were contracted with the MMB but in this case their inspection was illegal.

Question 9

What are a persons right to a lawyer?

Answer 9

Cadder v HMA 2011 involved a case where an accused had no access to legal advice prior to police questioning.
It was held in this case that under the ECHR all accused persons must have the option of a lawyer before police questioning.

Question 10

If a person suffered mental disorder when committing a crime are they liable?

Answer 10

No, under s51A of the Criminal Procedure (Scotland) Act 1995 a person is not criminally liable for an offence if at the time of conduct the person was, by reason of mental disorder, unable to understand the wrongfulness or nature of their conduct.
They must establish this on the balance of probabilities that burden is not on the Crown.

Question 11

What happened in the case of HMA v Chalmers?

Answer 11

• An accused person was questioned by police about a murder
• He was released and then was taking in for further interrogation when new witnesses contradicted his story
• The accused broke down and made a statement to police and proceeded to lead police to a field where the victim’s wallet was found
• The admissability of evidence was brought into question and on appeal to the High Court the appelant’s conviction was quashed on the grounds that the entire interrogation (including the trip to the field) were inadmissable.
• Was held that a voluntary statement MUST be given freely and not in response to pressure and inducement.

Question 12

Why is character evidence usually inadmissable?

Answer 12

Due to the fact it is deemed as irrelevant

Question 13

Will a jury be told of an accused person’s previous convictions prior to trial?

Answer 13

No, under s101(1) of the Criminal Procedure (Scotland) Act 1995 - a jury shall not be given information as to an accused persons previous convictions, nor shall these previous convictions be mentioned in the presence of the jury, before the verdict is returned.

Question 14

Will a judge know of any previous convictions where he/she is the master of the facts?

Answer 14

No, under s166(3) previous convictions shall not be laid before the judge until he is satisfied that a charge has been proved.

Question 15

What is hearsay?

Answer 15

Where a person testifies something they did not actually witness or hear themselves. Hearsay is generally inadmissable if a person has not actually witnessed or heard something themselves.

Question 16

What exceptions allow hearsay to be admissable?

Answer 16

• In Identification evidence where a witness may be asked to pick the accused from a line of people, the victim/accused may be unsure. The Court will then ask the police who the victim/accused chose and this is deemed as hearsay.
• Res-Gestae(Things Done) - Second hand statements considered trustworthy for the purpose of admission of evidence.

Question 17

What statutory exceptions mean hearsay is allowed?

Answer 17

Under s259 of the Criminal Procedure (Scotland) Act 1995 exceptions apply where the person who made the original statement

(1) Is dead or physically or mentally unfit
(2) is outwith the UK and is not reasonably practicable to secure his or her attendance at the trial or otherwise obtain their evidence
(3) cannot be found and all reasonable attempts have been made to find them
(4) by leave of the court, refuses to give evidence
(5) refused to give evidence, having beem “directed” by the judge to do so.

Question 18

What characteristics must an expert witness have?

Answer 18

Something which shows they have expertise in their field, for example a degree or other academic qualification, long term experience.

Question 19

What is an experts role?

Answer 19

To provide information on matters outwith the normal experience

Question 20

What happened in the case of Davie v Edinburgh magistrates 1953?

Answer 20

• During construction several dwellinghouses were damaged
• the pursuer in the case produced no expert witnesses
• defence produced three
• It is the Court’s decision whether or not to accept an expert’s testiomony
• In this case the Lord Ordinary rejected all three experts

Question 21

What is meant by the term privilege?

Answer 21

That a person is exempt from testifying?

Question 22

What is public interest immunity?

Answer 22

This is where the government claims that certain documents should not be used as evidence as they are not in the public interest.

Question 23

What is the privilege or remaining silent?

Answer 23

The the Crown can not use your silence as evidence against you.