Intro to Evidence

Question 1

Define facts in issue?

Answer 1

Facts which must be proven or disproven by the prosecution and in rare cases defence.

Question 2

Sims [1946]?

Answer 2

Whenever there’s a not guilty plea, the prosecution must prove the whole of their case from identity of accused to intent.

Question 3

How are facts treated if the standard of proof is met?

Answer 3

If the standard of proof is met, a fact is taken to have happened. If it is not met, it is taken to not have happened. There’s no maybe.

Question 4

What facts are not in issue due to statute?

Answer 4

Anything formally admitted under CJA 1967, s. 10 is not. s. 10 facts are taken to be proven.

Question 4

CJA 1967, s.10?

Question 5

When can relevant evidence be excluded?

Answer 5

Evidence relevant to facts in issue may still be excluded if no reasonable jury when properly directed could place weight on it.

Question 5

How should facts usually be presented to the jury?

Answer 5

Written admissions, as long as these don’t include sensitive information. Formal admissions may be made orally by counsel.

Question 6

What is the difference between facts in issue and facts relevant?

Answer 6

A relevant fact can MAYBE have happened. Facts in issue are binary and only can or cannot have occurred.

Question 6

What is the cardinal rule of evidence?

Answer 6

All evidence sufficiently relevant is admissible. What is irrelevant or insufficiently relevant to facts in issue shouldn’t be.

Question 6

How relevant is C’s social media in sexual cases?

Question 6

What is meant by facts relevant to issue?

Answer 6

relevant = fact(s) together or separately proves (or renders probable) the past, present, or future existence or non-existence of another fact.

Question 6

Randall [2003]?

Answer 6

The question of relevance is a matter of degree to be determined. A matter of common sense.

Question 6

How should circumstantial evidence generally be treated?

Answer 6

Although it can be conclusive evidence, it should always be narrowly examined.

Question 6

What was the general character evidence rule confirmed in Mader [2018]

Answer 6

Evidence is not generally admissible to simply show truthfulness of a prosecution witness

Question 6

How should agreed facts be treated in court?

Answer 6

Where another party admits to a fact, or parties jointly admit, a written record should be made of the admission.

Question 7

How should cases using circumstantial evidence be treated?

Answer 7

Judge should summarise defence’s evidence used to rebut conclusions prosecution draw from the circumstantial and direct jury to reasonably draw conclusions without speculation or guessing.

Question 8

How should juries interpret circumstantial evidence?

Answer 8

They should (a) examine each strand and draw fair and reasonable conclusions (b) without speculation, guessing or theories, (c) and decide whether prosecution have assured them of Ds guilt.

Question 9

Define real evidence?

Answer 9

Usually some material object - existence, condition or value of it is in issue or relevant to facts in issue.

Question 10

How much weight should be given to real evidence?

Answer 10

Very little weight if there is no accompanying testimony identifying it and connecting it to facts in issue.

Question 11

Tilley [1961]?

Answer 11

There are times where conclusions on evidence may only be drawn with assistance of expert opinion.

Question 12

Define "view"?

Answer 12

describes an inspection out of court of a material object inconvenient or impossible to bring to court or the locus in quo.

Question 13

Define locus in quo?

Answer 13

'the place in which' i.e., scene of the incident.

Question 14

When should views occur?

Answer 14

Before summing up. In magistrates, prior to conclusion of evidence and in presence of parties or representatives.

Question 15

Who should attend a view?

Answer 15

Any view should be attended by judge, jury, parties and counsel, stenographer.

Question 16

Why should parties always attend a view?

Answer 16

Because they can comment on any feature that has altered since the time of the incident or anything not noticed at the time.

Question 17

CrimPD 6, para 26 J.1?

Answer 17

Judges should set ground rules for a view - e.g. what jury should be shown in what order, who will speak etc - after consult with advocates.

Question 18

What is the general rule for questions of fact vs law?

Answer 18

On indictment, questions of law are for the judge and questions of fact are for the jury. For trials without juries, the judge should decide all but state why they've done such.

Question 19

How many questions of law are there for the judge to decide in jury trials?

Answer 19

9

Question 20

What is the 1st question of law for a judge in a jury trial?

Answer 20

Where an accused is deemed unfit to plead, if they did the act or made the omission charged as the offence.

Question 21

What is the 2nd question of law for a judge in a jury trial?

Answer 21

Any challenges to jurors (D13.22)

Question 22

What is the 3rd question of law for a judge in a jury trial?

Answer 22

Discharging of a juror or whole jury

Question 23

What is the 4th question of law for a judge in a jury trial?

Answer 23

Competency of persons giving sworn OR unsworn evidence

Question 24

What is the 5th question of law for a judge in a jury trial?

Answer 24

Admissibility of evidence

Question 25

What is the 6th question of law for a judge in a jury trial?

Answer 25

Withdrawal of any issues from a jury

Question 26

What is the 7th question of law for a judge in a jury trial?

Answer 26

Submissions of no case to answer

Question 27

What is the 8th question of law for a judge in a jury trial?

Answer 27

Any issues where jury should be directed in the Summing Up e.g. standard of proof, substantive law, any presumptions required etc.

Question 28

What is the 9th question of law for a judge in a jury trial?

Answer 28

Anything supporting the trial itself e.g. bail, costs, appeal

Question 29

What are 3 examples of questions of fact for the jury?

Answer 29

witness credibility and weight of evidence adduced; existence or non-existence of facts in issue; where D doesn't plead

Question 30

What is a preliminary fact in a jury trial?

Answer 30

fact which must be proved or disproved as a condition precedent to the admissibility of certain types of evidence.

Question 31

What questions of fact are uniquely left to the judge in jury trials?

Answer 31

fitness to plead; existence of preliminary facts; sufficiency of evidence

Question 32

What is the distinction between questions of law and fact in summary trials?

Answer 32

Justices decide all questions of law and fact. But, on questions of law should seek and accept advice from their legal adviser.

Question 33

What's the most important power to exclude evidence?

Answer 33

PACE 1984, s. 78(1)

Question 34

PACE s.78(1)?

Answer 34

Court may refuse prosecution evidence if, considering all circumstances, its admission would have adverse effect on proceedings.

Question 35

What does s. 78 PACE apply to?

Answer 35

s.78 applies to evidence the prosecution PROPOSE to rely on, so applications to exclude under s. 78 should be made before adducing evidence.

Question 36

When will the CoA involve itself in s. 78 applications to exclude?

Answer 36

Will only intervene if the judge has not used s. 78 at all OR has but in a Wednesbury unreasonable manner.

Question 37

What will CoA decide upon appeal of s. 78 decisions?

Answer 37

CoA will decide whether admission of evidence applied for exclusion rendered the conviction unsafe.

Question 38

What evidence can s. 78 apply to?

Answer 38

ANY evidence the prosecution seek to rely upon.

Question 39

Hunter [2021]?

Answer 39

Evidence of Ds conduct having a prejudicial effect does NOT NECESSITATE exclusion under s. 78.

Question 40

What evidence is open to exclusion at common law?

Answer 40

(1) anything prejudicial out of proportion to its value (2) evidence or statements obtained by improper or unfair means.

Question 41

What's the difference between s.78 power to exclude and common law power to exclude?

Answer 41

s. 78 isn't confined to evidence or statements obtained improperly, but instead extends to any prosecution evidence, obtained any way.

Question 42

Summarise a judge's common law power to exclude?

Answer 42

There's discretionary power to exclude otherwise admissible prosecution evidence when it would be too prejudicial in comparison to its value.