Identification Evidence and Trial Flashcards
What is the legal burden in criminal proceedings?
The burden of proof is on the prosecution, they must prove the elements of the offence beyond reasonable doubt (i.e so you are sure of guilt). However, the defence must prove active defences (diminished responsibility). Whether the legal burden has been discharged is a question of fact for the tribunal.
What is the evidential burden in criminal proceedings?
The burden to raise some evidence on which the judge is satisfied that the jury can find that the issue has been proved.
If you have the legal burden, you also bear the evidential burden, except in the following circumstances:
* where self-defence is raised, defence must raise the issue and simply show some evidence of lawful self defence, no standard of proof.
* Prosecution then has the legal burden to show that the force used was unlawful.
What are the custody time limits?
The time within which trial must commence.
Mags: Must be held within 56 days. Trial begins when court starts hearing evidence.
Crown: 182 days less the days spent in custody. Trial begins when the jury is sworn in.
What is the Turnbull duty and when is it owed?
The turnbull duty is where the judge must examine the quality and evidence to support identification evidence at the close of the prosecution case, considering the ADVOKATE factors.
It is owed where the case against the accused depends wholly or substantially on the ID evidence of which the suspect disputes.
What are the ADVOKATE factors?
A = amount of time under observation
D = distance
V = visibility
O = obstruction
K = known or seen the suspect before
A = any other reason to remember
T = time elapsed
E = error or material discrepancy
What should the trial judge do after assessing the ID evidence using ADVOKATE?
Where the quality of the ID evidence is good, the jury can safely be left to assess the evidence, regardless of if there is other supporting evidence + judge gives turnbull direction.
Where quality of the ID evidence is bad, the judge should consider the other evidence supporting the ID. If some and its good, turnbull direction and if there is none, withdraw the case and order an acquittal.
What is a Turnbull direction?
The judge should warn the jury of a special need for caution before convicting the accused in reliance on the ID evidence:
1. explain reason for warning;
2. direct jury to examine the circumstances in which ID by each witness was made;
3. remind the jury of any specific weaknesses in the ID evidence.
Direct jury to consider specific evidence that supports the ID:
1. scientific evidence;
2. multiple identifications by different witnesses;
3. bad character (if admissible);
4. silence in interview (if cautioned);
5. confessions
What jury verdict can be given?
i.e majority, unanimous etc.
Only a unanimous verdict can be accepted by the judge. However, a majority verdict may be accepted after the jury deliberates for at least 2 hrs 10 mins and it appears to the court that they have had reasonable time for deliberation given the nature and complexity of the case.
