intro to evidence

Question 1

context

Answer 1

 We know the principles of the court system, how justice works and the general roles of the main players within the judiciary
 We also are aware of some of the more major offences, their elements, sentences and punishments

Question 2

Trying to work out what really happened

Answer 2

• We know that the rules of the law have been established for generations, whereas what really happened between individuals tends to be significantly more mysterious

Question 3

The English legal approach

Answer 3

• 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’

Question 4

What is evidence

Answer 4

• 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

Question 5

Why do we need protecting from evidence

Answer 5

• 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)

Question 6

What can the law of evidence offer us, as practioners?

Answer 6

• It gives us the burden of proof for all offences – establishing who needs to prove what
• How much proof a court must require before making a verdict ?

Question 7

What does the law of evidence attempt to avoid

Answer 7

• 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

Question 8

The human side of evidence

Answer 8

• 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

Question 9

Human rights and evidence

Answer 9

• 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)

Question 10

Article 6- The right to a fair trial

Answer 10

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

Question 11

Article 6(3)

Answer 11

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) D) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf
To have free assistance of an interpreter if he cannot speak or understand the language used in court

Question 12

Legal and evidential burdens

Answer 12

• 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

Question 13

Golden thread exceptions

Answer 13

• 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

Question 14

Burden x 2

Answer 14

• Evidential burden: Burden to raise a fact in issue
• There is no standard of proof
• Legal burden: Burden to prove a fact in issue
• This burden is only discharged when the standard of proof is met

Question 15

the burdens

Answer 15

• 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

Question 16

What are they?

Answer 16

• 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

Question 17

The sides of the same coin

Answer 17

• 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

Question 18

The defence role

Answer 18

• 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

Question 19

Adaptions

Answer 19

• 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

Question 20

Types of evidence

Answer 20

• There are multiple types of evidence which can be received by the courts, but for ease we’ll categories these into 5 key groups

Question 21

1. Direct evidence

Answer 21

• 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

Question 22

2. Documentary evidence

Answer 22

• 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

Question 23

3. Real evidence

Answer 23

• 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

Question 24

4. Circumstantial evidence

Answer 24

• 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

Question 25

5. Evidence of motive

Answer 25

• 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