Introduction & Core Concepts Flashcards
What is evidence?
Evidence is what a party to a case must use to prosecute/defend the case.
Whether X is admissible/inadmissible will largely depend on it’s relevance.
Evidence is relevant if it would help a party to a case in prosecuting/defending the case
The People (DPP) v Shortt (No. 1) [2002] 2 IR 686
Hardiman J in the CCA said at p693 that “…irrelevant evidence is never admissible.”
Who are the arbiter of law and the arbiter of fact?
arbiter of law = judge
arbiter of fact = jury
What is a voir dire?
a trial within a trial –> the jury will be excused from court
What happens if the evidence is deemed admissible after voir dire?
the trial will resume, the evidence will be presented, the jury will decide if the evidence proves or goes towards proving a fact(s) in question
What is the purpose of a voir dire?
To ensure that the jury is not exposed to evidence which a judge deems inadmissible
What is article 38.1 of the constitution?
it enshrines the right to a criminal trial in due course of law
it enshrines the right to fair procedures even in non-criminal proceedings (Re Haughey [1971] IR 217
What is a Fact in issue?
it is a fact that a party to a case must prove to succeed in their case.
in criminal trials, this is determined by the offence charged and any defence raised
in civil trials, it is determined by P’s cause of action + defence[s] raised
What is a Relevant fact?
also known as an evidential fact
it is a fact that is evidence of a fact in issue
What is Circumstantial evidence?
it is evidence of a relevant fact
The People (DPP) v Morgan [2011] IECCA 36 - Finnegan J, CCA at 14 =
“c.e is evidence of any fact from which the judge/jury may differ the existence of a fact in issue.”
What is Direct evidence?
Also described as percipient evidence
it is a witness’ testimony about what s/he perceived by one of their senses
What is a Collateral Fact?
it is a fact that is neither a fact in issue nor a relevant fact
What is Real Evidence?
This is something that is observed by the court [usually courtroom]
For example, witness’ demeanor/alleged murder weapon
What is a Testimony?
This is a type of evidence
It is a witness’ oral evidence in a trial which is normally sworn
Can testimony be sworn or unsworn?
It can be sworn on oath or affirmation
but it can also be unsworn
So it can be both.
Where do you get a testimony?
It can be obtained from witnesses in:
- examination-in-chief,
- cross-examination,
- re-examination.
What is cross-examination?
The questioning of a witness by a side who did not call them to testify
[Oppositions witness]
What is re-examination?
Further questioning of a witness after cross-examination by the side who called them to testify (after cross-exam)
What is an examination in chief?
The questioning of a witness by the side who called them to testify [they are your own witness]
Difference between testimonial v non-testimonial statements?
Non-testimonial statements are NOT made during testimony.
What are some issues regarding non-testimonial statements?
- unreliable
- not sworn i.e. not made on oath/affirmation
- the person who made it is NOT subject to intense cross-examination after making the statement
- the jury cant assess the demeanour or credibility of the person who made the statement WHEN they made it
are non-testimonial statements admissible?
they tend to be inadmissible
Look out for non-testimonial statements in a problem question …
Consider if the evidence is admissible or not.
if admissible - state the purpose why it is admissible e.g. to prove that the non-testimonial statement is true, thus it may be hearsay OR to bolster the credibility of a witness’ testimony
