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Issues in Criminal justice > intro to evidence > Flashcards

intro to evidence Flashcards

1
Q

the english legal approach

A
  • Our criminal proceedings are carried in out in what we could call an ‘adversarial’ nature, as opposed to an ‘inquisitorial’
  • Essentially the judge and jury in a case are essentially taking on the roles of umpires, while counsel are the ones who ‘fight it out’
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2
Q

what is evidence

A
  • It is simply, information which helps to disprove or prove some fact to which it relates
  • For English Law, this may be witness testimony, documentary evidence or forensic evidence
  • The law of evidence is there, as much of our other laws are, to protect us
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3
Q

why do we need protecting from evidence

A
  • Evidence is a tool, and like all tools – can be used in a helpful or harmful way (such as a hammer, scalpel, blowtorch etc…)
  • We need to ensure that all of the evidence used is lawful, fair, gained in appropriate methods and using the right people (effectively, evidence should be fairtrade)
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4
Q

what can the law of evidence offer us, as practioners

A

• It gives us the burden of proof for all offences – establishing who needs to prove what

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5
Q

what does the law of evidence attempt to avoid

A
  • Unsatisfactory forms of proof or evidence
  • Safeguard against reliance on potentially ‘suspect’ evidence
  • Attempt to ensure that witnesses are as well-versed in the process as possible
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6
Q

the human side of evidence

A
  • All evidence is fundamentally flawed; in that it will be delivered, heard and decided on by humans
  • We all make mistakes, witnesses don’t se or hear things – or hear them wrong
  • There may be liars, forgetful or scared witnesses, forgotten witnesses – this law attempts to ensure that everyone is on as flat a playing field as is possible
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7
Q

human rights and evidence

A
  • The enactment of the Human Rights Act 1998 drastically changed the landscape of how we viewed evidence within the courts
  • S2, S3 and S6 made comments towards evidence within the UK, primarily concerning precedent and the role of public bodies (such as the CPS, Police etc)
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8
Q

article 6 - the right to a fear trial

A

• S6(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law

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9
Q

article 6(3)

A

• Everyone charged with a criminal offence has the following, minimum rights:

a) To be informed promptly, in a language which he understands and in detail, of the nature of the accusation against him
b) To have adequate time to prepare a defence
c) To defend himself in person or through legal assistance of his own choosing, or to be giving it free when the interests of justice require
d) ) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf
e) To have free assistance of an interpreter if he cannot speak or understand the language used in court

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10
Q

legal and evidential burdens

A
  • Woolmington v DPP [1935] established what we now call the ‘golden thread’ which runs through all criminal trials
  • This is the principal that it is for the prosecution to prove the D’s guilt
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11
Q

golden thread exceptions

A

• The only exception to the golden thread is the common law exception of Insanity and any other statutory exceptions but the presumption will remain at the Golden Thread

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12
Q

what are the two types of burdens

A

evidential burden

legal burden

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13
Q

evidential burden

A

Burden to raise a fact in issue

- There is no standard of proof

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14
Q

legal burden

A

Burden to prove a fact in issue

- this burden is only discharged when the standard of proof is met

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15
Q

the burdens

A
  • Effectively the rules of evidence assist us in determining which party (or side) has the burden of proving any fact or issue which could be in dispute
  • This will always be linked to the standard of proof required (beyond reasonable, balance of probs)
  • Not all facts need to be questioned or examined, if they are obvious and accepted to all parties then the court takes judicial notice of them and they are included
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16
Q

what are they

A
  • The burden of proof describes the legal burden on the prosecution to be able to prove all the facts necessary to establish the D’s guilt
  • The evidential burden is simply the obligation on either side to produce sufficient evidence to establish the facts
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17
Q

two sides of the same coin

A

• They are effectively two sides of the same coin, and in order to carry out a case effectively, there is a duty to adduce sufficient evidence in order to establish the legal facts

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18
Q

the defence role

A
  • It is common to think that the role of the defence team is to entirely disprove the argument of the prosecution
  • Their role is simply to place reasonable doubt within the minds of the jury – in order to dissuade them
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19
Q

adaptions

A
  • There may be times when a fact is agreed, but there are still legal issues surrounding it;
  • E.G: during a murder trial, the defence may readily admit that that D killed V, but the dispute remains on the reasoning – lawful, or unlawful or the use of defences
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20
Q

what are the 5 types of evidence

A 
direct evidence 
documentary evidence
real evidence
circumstantial evidence
evidence of motive
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21
Q

direct evidence

A
  • Typically seen in the form of direct oral testimony with the witness testifying under oath in open court
  • Witnesses may only give their evidence on matters which they have perceived with one of their five senses
  • As long as the witness is competent and relevant, this will always be admissible evidence
  • Witnesses giving direct evidence must not give their own opinions on which they have no expert knowledge
  • While hearsay is problematic, it can be occasionally used with exceptions – overwhelmingly hearsay as evidence is inadmissible
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22
Q

documentary evidence

A
  • Not all evidence needs to be in oral form
  • Document advice in the form of written or typed paper, maps, plans, graphs, photos, tapes, films, cd’s and dvd’s
  • Effectively – any way of communicating which isn’t the spoken word
  • Written statements from police evidence are permitted, but only resulting from strict rules pertaining to them as they were not made under oath
  • Business documents and statements in a document may also be permissible under judicial direction
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23
Q

real evidence

A
  • Some form of material object, commonly known as an exhibit that is produced to the court
  • However these are fairly useless on their, unaccompanied with some external testimony such as direct evidence
  • Real evidence is usually an exception ot hearsay rules with R v Robson, Mitchell and Richards [1991] demonstrating that it can be admissible if it is not ‘hearsay’ but real evidence
  • In this case – technically the call logs were created by a computer and therefore constituted real evidence
24
Q

circumstantial evidence

A
  • Evidence of relevant facts which may lead to the inference of the facts in issue
  • Contrary to popular opinion, it can be relied on just as heavily as direct testimony
  • Effectively it is facts which the existence or non-existence of the facts could be inferred from
  • It is a very helpful form of evidence, since unhelpfully many crimes happen behind closed doors/alone/dark alleys etc
  • Using multiple forms of circumstantial evidence, when combined with other forms can make for a very effective case
25
Q

evidence of motive

A
  • Motive and mens rea are not the same thing, and a grudge does not = intent
  • However, it can be useful insofar as it makes it more credible the the D may have been involved or that they were responsible
  • While evidence of motive will not be sufficient independently for a conviction but when used with other evidence, can definitely strengthen the prosecutions argument
  • Even if a motive is shared, it may still be relevant – it can still be used as sufficient evidence in combination
26
Q

Improperly obtained evidence

A

• Ensuring that all the evidence displayed within court is obtained in an appropriate manner is of upmost importance

27
Q

historical approach

A
  • There was absolutely no barrier or existence of common law which prevented the use of improperly obtained evidence
  • While many judges refused to allow evidence which was clearly existing as a result of improper methods, the statute was not there to back them up
28
Q

impact of HRA 1998

A
  • The use of HRA began to change this, and statutory evidence began to make sweeping changes to the regulation of evidence
  • There have also been increasing research into the use of improperly obtained evidence and why we should be excluding this form of evidence
29
Q

morally unfair

A
  • While the law does not tend to deal in issues of morals, it is unfair to make sure of evidence gained this way
  • Even if the evidence is highly relevant and cogent, the methods in which it was gathered would impact upon this
  • Ad Duff et al (2007) established, a court cannot condemn the accused while condoning inappropriate actions of the police
30
Q

duty of the court

A
  • It is within the remit of the court to restore to any victims of police wrongdoing to the position they would have been at had the evidence not been collected
  • Aka: a case should only go ahead if the remaining evidence is sufficiently strong as to stand up without the improperly obtained things
31
Q

fair trial = appropriate verdict

A
  • The fairness of the process impacts upon the accuracy of the verdict
  • Truth and justice are intimately connected, and these cannot be separated
  • Ensuring that evidence is appropriate means making sure that the verdict can be as correct as possible
32
Q

integrity

A
  • The integrity of the CJS hangs on its own ability to remain pure and untouched by instances of illegality
  • All improperly obtained evidence should be excluded
  • This makes sense as trust would be significantly diminished in courts if there was evidence such as this regularly include
  • There would be widespread concern if criminals could walk free if technicalities aren’t followed
33
Q

does this matter

A

• There is an argument that the behaviour of those whose job it is to engage with the collation of evidence are of no concern to the judges, as along as there is no impact on the reliability of the evidence

34
Q

current climate

A
  • Within the UK there is no defence of entrapment, and there is no rule that evidence which has not been obtained in accordance with the law cannot be used in court
  • The courts do not see it as their function to decide to police the police or CPS
35
Q

crompton J 1861

A

• “It matters not how you get it, if you steal it even, it would be admissible in evidence.”

36
Q

post 1861 view

A
  • Modern practise does follow this guidance, although as is the way with common law, exceptions have evolved
  • Confessions obtained through oppression or in circumstances likely to make them unreliable are not permitted
  • Evidence cannot be used if the party seeking to use it, obtained them through trickery or deception
37
Q

Jeffery v black 1978

A
  • Arrested on suspicion of stolen sandwich from pub (genuinely)
  • Police then searched his accommodation without warrant and found cannabis
  • The court held this was properly admitted
  • The court’s role is to evaluate the relevance of the evidence and not how it was obtained
38
Q

what did Jeffery demonstrate

A
  • The willingness of the courts to use the common law discretion (of trickery or unfair practise) was towards the accused was rare
  • It was even rarer for the eventual failure of that discretion to result in successful appeal
39
Q

r v Sang 1978

A
  • Leading case on the issue
  • Counterfeiter of notes arranged to meet someone interested in buying who was actually an undercover police officer
  • Failed to persuade the judge to disallow the evidence, he pled guilty and then appealed
40
Q

appeal basis

A
  • The appeal was on the fact that the offence was actually instigated by an agent provocateur
  • Appeal rejected by CoA and HoL (pre SC)
  • Their lordships accepted that a judge in a criminal trial has a general discretion to refuse to admit evidence where its probable prejudicial effect outweighed the probative value as to make admission unfair
41
Q

Lord Diplock 1978

A

• “Save with regard to admissions and confessions and generally with regard to evidence obtained after the commission of the offence, the judge has no discretion to admit relevant admissible evidence on the ground it was obtained in improper or unfair means…The court is not concerned with how the evidence was obtained.”

42
Q

scope of limitation

A
  • The scope of limitation is according to Diplock, very limited and is not there to reprimand the police
  • Only in times where the actions clearly breach items defined by the law should a judge exclude evidence
  • Following Diplock’s speech, his surrounding judges were less restrictive and preferred an attitude of judicial discretion which was unlimited
  • However, all agreed there was no defence of entrapment…and that’s about as clear as it got
43
Q

developing entrapment: R v Loosely

A
  • Leading case on entrapment
  • D was a known heroin dealer and claimed he had been lured into supplying drugs to a police officer
  • D took some persuading from officers to get heroin and supplied it, but defended that he had nothing to do with heroin normally and only agreed to supply as a favour
  • HoL acknowledged the lack of entrapment in English Law but also stated that proceeding should be stayed where the actions of the police were ‘so improper that they bought the administration of justice into disrepute.’
44
Q

what are the four factors which need to be taken into consideration in deciding whether conduct is seriously improper

A

nature of the offence

reason for the particular operation

nature and extend of police participation in crime

D’s criminal record

45
Q

nature of the offence

A
  • The use of proactive techniques is obviously required and the secrecy and difficulty of detection are obviously required and of relevant considerations
46
Q

reason for the particular operation

A
  • Police must act in good faith and not as a malicious vendetta against an individual
  • Reasonable grounds for suspicion is one way in which good faith may be established, but may be centred on a place
47
Q

nature and extend of police participation in crime

A
  • The more forceful or persistent the police involvement, the more readily a court may decide they overstepped the boundary
  • Regard must be had to the persons vulnerability
48
Q

D’s criminal record

A
  • Only relevant if linked to factors surrounding reasonable suspicion
49
Q

Did the police do no more than present the D with an unexceptional opp to commit a crime?

A
  • It is acceptable to provide an unexceptional opp to commit a crime and if that person then did so freely, there is no abuse of process or exclusion of evidence
  • However, if a person committed an offence that they would not have ordinarily committed following inducement, this undermines the good faith
50
Q

R v Palmer 2014

A
  • Considered multiple entrapment cases
  • Police conducted covert operation, posing as dishonest pawnshop making arrests for stolen property
  • Questions raise concerning propensity to commit crimes
  • Was this an abuse of process?

Held:
• Applicants were not vulnerable or enticed by officer’s conduct
• Their only vulnerability was their greed and there was nothing exceptional about the opportunity presented to them

51
Q

how do we deal with entrapment

A

• Each case turns on its own facts but if the D commits an offence that they would not have committed ordinarily, then the proceedings out to be stayed

52
Q

admissibility of evidence

A
  • We’ve discussed the use of improperly obtained evidence – but what about the relevancy of it?
  • We lay down exclusionary rules, designed in theory to ensure that only the best and most reliable evidence is used
53
Q

relevancy

A
  • A really important concept, and the judge’s decision can be quite artificial
  • While the following are the rules, be prepared to accept them under the guise of ‘court life doesn’t always reflect real life’
54
Q

hearsay

A
  • Witnesses must confine their knowledge to what they know and what they experienced
  • Hearsay is evidence adduced to prove facts which the witness has no first-hand knowledge of
  • It may be admissible in criminal cases but is subject to four circumstances, and many exceptions under CJA 2003
55
Q

opinion evidence

A
  • Witnesses must remain truthful to facts, and leave inferences to the court
  • Obvious subject to exceptions, most notably expert evidence
  • E.G: witness can say ‘they appeared to be drinking’ but would be beyond them to deduce they were incapable or unfit to drive
  • Generally inadmissible, but exceptions and rules apply
56
Q

evidence of bad character

A
  • A D’s bad behaviour or criminal record can be made available and public and used as evidence
  • Can be highly relevant and make an exceptionally strong case among other evidence
  • However, it is far less likely to allow evidence if bad character concerning witness or victim anymore
57
Q

evidence of sexual health history/experience

A
  • Largely not admissible for the defence, although prosecution can disclose if appropriate
  • Only in exceptional circs can defence cross examine V about their sexual behaviour other the one being discussed in the court

Issues in Criminal justice (34 decks)

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