Excluding Evidence I Flashcards
What are three questions to ask about evidence?
1) Is the evidence relevant?
2) Is there an exclusionary rule?
3) Is there an inclusionary rule?
What is an example of an inclusionary rule?
Bad character evidence
Some evidence is deemed inadmissible per se. What kind of rule is needed to admit this type of evidence?
Inclusionary rule
What are the two sources of discretionary exclusion of evidence?
S78 and the common law
What is the s78 exclusion of evidence rule?
If the admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
Could s78 be used for evidence that is obtained in the right way?
Yes, it can.
What are ways in which materials is wrongly obtained according to PACE?
a) Searches without proper authority
b) Interviewing witnesses without cautioning them properly first
c) Denying access to a solicitor
d) Oppression or tricks in interview
e) Not following proper identification
Is a breach of PACE automatically inadmissible?
No, it needs to be significant and substantial breach
What is the real question if a piece of material is obtained wrongly?
Does it have an adverse effect on fairness?
What is the common law test for excluding evidence?
Where 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?)
What is an example of evidence which can be covered by common law but not PACE?
Police eavesdropping
Why could the common law exclude police eavesdropping?
Because the police might not see facial expressions, so they could put more weight on the words rather than full expressions, which could do more harm than good
