Introduction & Core Concepts

Question 1

What is evidence?

Answer 1

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

Question 2

The People (DPP) v Shortt (No. 1) [2002] 2 IR 686

Answer 2

Hardiman J in the CCA said at p693 that “…irrelevant evidence is never admissible.”

Question 3

Who are the arbiter of law and the arbiter of fact?

Answer 3

arbiter of law = judge

arbiter of fact = jury

Question 4

What is a voir dire?

Answer 4

a trial within a trial –> the jury will be excused from court

Question 5

What happens if the evidence is deemed admissible after voir dire?

Answer 5

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

Question 6

What is the purpose of a voir dire?

Answer 6

To ensure that the jury is not exposed to evidence which a judge deems inadmissible

Question 7

What is article 38.1 of the constitution?

Answer 7

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

Question 8

What is a Fact in issue?

Answer 8

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

Question 9

What is a Relevant fact?

Answer 9

also known as an evidential fact

it is a fact that is evidence of a fact in issue

Question 10

What is Circumstantial evidence?

Answer 10

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.”

Question 11

What is Direct evidence?

Answer 11

Also described as percipient evidence

it is a witness’ testimony about what s/he perceived by one of their senses

Question 12

What is a Collateral Fact?

Answer 12

it is a fact that is neither a fact in issue nor a relevant fact

Question 13

What is Real Evidence?

Answer 13

This is something that is observed by the court [usually courtroom]
For example, witness’ demeanor/alleged murder weapon

Question 14

What is a Testimony?

Answer 14

This is a type of evidence

It is a witness’ oral evidence in a trial which is normally sworn

Question 15

Can testimony be sworn or unsworn?

Answer 15

It can be sworn on oath or affirmation
but it can also be unsworn
So it can be both.

Question 16

Where do you get a testimony?

Answer 16

It can be obtained from witnesses in:

• examination-in-chief,
• cross-examination,
• re-examination.

Question 17

What is cross-examination?

Answer 17

The questioning of a witness by a side who did not call them to testify
[Oppositions witness]

Question 18

What is re-examination?

Answer 18

Further questioning of a witness after cross-examination by the side who called them to testify (after cross-exam)

Question 19

What is an examination in chief?

Answer 19

The questioning of a witness by the side who called them to testify [they are your own witness]

Question 20

Difference between testimonial v non-testimonial statements?

Answer 20

Non-testimonial statements are NOT made during testimony.

Question 21

What are some issues regarding non-testimonial statements?

Answer 21

• 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

Question 22

are non-testimonial statements admissible?

Answer 22

they tend to be inadmissible

Question 23

Look out for non-testimonial statements in a problem question …

Answer 23

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