Identification Evidence (W5) Flashcards
Legal burden rule (Woolmington v DPP)
The prosecution has the legal burden of proving all elements of the offence necessarily to establish guilt
Legal burden means proving something to a prescribed standard.
Standard of proof
Prosecution – beyond reasonable doubt.
Defence – balance of probabilities.
Evidential burden
Sufficient evidence must be produced to satisfy the judge that matter should be argued before the jury.
Note – no particular burden or standard. Judge must be happy that the jury has some evidence on which it could find that the issue has been proved.
Is there a burden on the defence when challenging the prosecution?
No
Evidential burden becoming detached
Instances where a judge might require some evidence in order to raise an issue before the jury (i.e. self-defence)
Note – no actual standard of proof.
Raising burden with self defence
courts simply require that defence raise some evidence to pass the judge that D acted in self-defence.
Defence can’t make a speech on self-defence without having raised some evidence of it earlier.
Legal burden: alibi
Prosecution retain the burden of disproving the alibi.
Judge directs jury that defence need not prove it.
When does a defendant have a burden to prove something?
Defences (e.g. insanity, self-defence).
Assertion made by the defence and proved by the defence. The standard is the balance of probabilities.
Turnbull guidelines
Guidelines to be followed where a case depends wholly/substantially on identification evidence which the suspect alleges to be mistaken.
Turnbull directions
Should be given when the case against the defendant wholly or substantially depends on the correctness of visual identification.
D picked out in formal identification but maintains that the witness was mistaken.
Turnbull directions
Jury should be warned of the special need for caution before convicting accused in relation on the correctness of identification whenever the prosecution case wholly or substantially depends on:
- Correctness of one or more identifications of the accused;
- defence alleges the identification to be mistaken.
Requirements when directing the jury (Turnbull guidance)
- Reason for the need for warning (mistaken witnesses can be convincing).
- Jury must be directed to examine circumstances if identification by each witness.
- Jury must be reminded of any specific weaknesses in the identification.
Evidence capable of supporting a visual identification
- Scientific evidence (e.g. telephone evidence, footwear).
- Multiple identifications by different witnesses
- Accused’s bad character or previous convictions.
- Accused’s silence on interview.
- Accused’s admissions at the scene/interview/witness box.
Characteristics of visual evidence to take into account
ADVOKATE
- Amount of time the witness had the accused interview;
- Distance between witness and accused;
- Visibility;
- Obstructions to the view of the witness;
- Known or seen before;
- Any particular reason to remember;
- Time lapse between witness seeing the accused and the ID procedure being held;
- Error or material discrepancy between first description given by the witness and the actual appearance of the accused.
Visual identifications of good quality
The jury can be left to assess the value of identification evidence regardless of whether there is other evidence to support it (turnbull guidance still required and adequate warning must be given about the special need for caution).
