Part 6: Foundations of Evidence Law

Question 1

What is the difference between the adversarial and inquisitorial systems of justice?

Answer 1

The adversarial system is used in common law countries like Scotland, where two advocates represent their parties’ case before an impartial judge or jury. In contrast, the inquisitorial system, used in continental European countries, involves an investigating judge who seeks out evidence for both sides and decides which witnesses to call.

Question 2

What is the role of a judge in the adversarial system?

Answer 2

In the adversarial system, the judge’s role is more like that of a referee, ensuring fair play and practice in the courtroom. The judge does not actively seek out evidence or decide what witnesses to call—the defence and prosecution are responsible for uncovering evidence and building their cases.

Question 3

Who controls the evidence and witnesses in the adversarial system?

Answer 3

In the adversarial system, the parties (defence and prosecution) have control over what witnesses to call and what evidence to use in court.

Question 4

What is the main characteristic of the adversarial system used in common law countries?

Answer 4

The adversarial system is characterized by two advocates representing their parties’ cases before an impartial judge or jury, who then attempt to determine the truth and pass judgement accordingly.

Question 5

What is the main aim of both the adversarial and inquisitorial systems of justice?

Answer 5

Both systems share the aim of determining whether the accused is guilty of the crime charged and ensuring procedural fairness to the accused, upholding their rights, such as the right to a fair trial under Article 6 of the Human Rights Act.

Question 6

What is the law of evidence essentially about?

Answer 6

The law of evidence is about how facts are introduced at court or prevented from being introduced. It governs the types of evidence that can be presented and the rules for their admissibility.

Question 7

What are the main types of evidence in a court trial?

Answer 7

The main types of evidence are:

Oral evidence: What is said by a witness when testifying before the court.

Documentary evidence: Documents presented in court, like bank statements.

Real evidence: Physical materials presented to the court for inspection, such as fingerprint evidence, forensic samples, or CCTV footage.

Question 8

What is the difference between questions asked to a witness and evidence?

Answer 8

Questions asked to a witness in the court are not evidence. They only become evidence if the witness agrees with what’s being said.

Question 9

What does it mean for evidence to be relevant in a court case?

Answer 9

Evidence is relevant if it directly helps to prove or disprove something in the case. If it doesn’t logically relate to the case or help establish a fact, it may be excluded by the judge on the grounds of being irrelevant.

Question 10

What are the crucial facts that must be established in every prosecution?

Answer 10

The crucial facts that must be established are:

That a crime was committed.

That it was the accused who committed the crime.

Question 11

Can irrelevant evidence be admitted in court?

Answer 11

No, irrelevant evidence is not admissible in court. If evidence is irrelevant, it will be excluded by the judge.

Question 12

What does it mean for evidence to be admissible in court?

Answer 12

Admissible evidence is allowed to be presented in court. However, not all relevant evidence is admissible. Some may be excluded due to factors like unreliability or the potential to mislead or unduly influence the jury.

Question 13

Who decides if evidence is admissible or inadmissible in court?

Answer 13

The judge decides whether evidence is admissible or inadmissible. Generally, all evidence is admissible unless it violates exclusionary rules.

Question 14

Are previous convictions of the accused admissible in court?

Answer 14

Previous convictions of the accused are inadmissible in court because they may be considered unfair or prejudicial to the accused.

Question 15

What are facts probanda?

Answer 15

Facts probanda are the crucial facts that need to be proved in a case. These are the main facts that must be established in order to determine the outcome of the case.

Question 16

What are facts probationis?

Answer 16

Facts probationis are circumstantial evidence that help to establish the crucial facts of the case. This evidence supports the case by indirectly suggesting that certain facts are true.

Question 17

What should a party do if there are multiple types of evidence to prove a point?

Answer 17

If there are two or more types of evidence that could prove a particular point, the party should bring the ‘best evidence’ to court. This means presenting the most reliable and original evidence, such as the original document instead of a copy, as long as it’s practical to do so.

Question 18

What does sufficiency mean in criminal law?

Answer 18

Sufficiency refers to whether there is enough admissible evidence to convict the accused. The evidence must prove the crucial facts and be sufficient to demonstrate that the accused committed the crime. If there is insufficient evidence, the accused is acquitted.

Question 19

What is corroboration in criminal law?

Answer 19

Corroboration is the principle that requires two independent pieces of evidence to support the case. One piece confirms that a crime has been committed, and the other confirms that the accused is the person who committed the crime. This ensures a higher standard of proof and reduces the likelihood of wrongful convictions.

Question 20

Why is corroboration important in criminal law?

Answer 20

Corroboration is important because it ensures a high standard of proof before conviction. It helps to avoid wrongful convictions by making it more difficult to prosecute someone who is innocent, requiring multiple pieces of independent evidence to support the case.

Question 21

What did the Cadder v HM Advocate [2010] UKSC 43 case highlight about corroboration?

Answer 21

Cadder v HM Advocate (2010) highlighted the importance of legal advice for suspects. Cadder’s confession was inadmissible because he was not offered legal advice prior to questioning, violating his rights under Article 6(1) of the European Convention on Human Rights. This case led to the Scottish police being required to offer legal advice during police interviews and raised questions about the necessity of corroboration in Scottish law.

Question 22

What is the Moorov v HM Advocate [1930] case known for?

Answer 22

The Moorov v HM Advocate (1930) case is known for establishing the Moorov doctrine, which allows multiple incidents of alleged offences to mutually corroborate each other if there is an underlying unity of purpose and the incidents are similar in time, character, and circumstances. This is particularly useful in cases like domestic abuse or sexual offences where independent corroboration can be difficult to obtain.

Question 23

What is the Moorov doctrine?

Answer 23

The Moorov doctrine allows for mutual corroboration of multiple incidents of alleged offences if they share an underlying unity of purpose and are similar in time, character, and circumstances. This doctrine was established in Moorov v HM Advocate (1930) and helps corroborate evidence when direct evidence is scarce, especially in cases involving private or repeated offences.

Question 24

What are the two types of burdens of proof in a criminal trial?

Answer 24

The two types of burdens of proof are:

Persuasive/Legal burden of proof - This is the responsibility of convincing the court about any issue, typically placed on the prosecution to prove the guilt of the accused.

Evidential/Provisional burden of proof - This refers to the requirement to introduce evidence to persuade the court that there is an issue worth considering. The accused typically holds this burden to show that a defense might apply.

Question 25

Who generally holds the burden of proof in a criminal trial?

Answer 25

In a criminal trial, the prosecution holds the persuasive burden of proof throughout the trial, meaning they must prove the accused's guilt. The accused may have an evidential burden to introduce evidence for a defense, but the overall burden of proving guilt rests on the prosecution.

Question 26

What is the standard of proof required in a criminal trial?

Answer 26

The standard of proof required in a criminal trial is "beyond a reasonable doubt." This means the prosecution must prove the accused's guilt to a very high degree of certainty. It is not a percentage but requires the evidence to be highly probable.

Question 27

What is the standard of proof "on the balance of probabilities" used for?

Answer 27

The standard of proof "on the balance of probabilities" is a lower standard used in civil cases or in certain criminal defenses. It means that something is more likely to be true than not, often represented as tipping the scales slightly over 50%.

Question 28

What does "beyond a reasonable doubt" mean in terms of proof in a criminal trial?

Answer 28

"Beyond a reasonable doubt" means that the prosecution must prove the accused's guilt to a high degree of certainty. It is not necessary to eliminate all doubt, but the doubt must be reasonable and substantial, making the guilt highly probable.

Question 29

What is the burden of proof for mental disorder under the Criminal Procedure (Scotland) Act 1995, S51A?

Answer 29

Under S51A of the Criminal Procedure (Scotland) Act 1995, the accused has the burden of proof if claiming mental disorder as a defense. They must establish, on the balance of probabilities, that due to mental disorder, they were unable to appreciate the nature or wrongfulness of their conduct at the time of the offense.

Question 30

What is the burden of proof for diminished responsibility under S51B of the Criminal Procedure (Scotland) Act 1995?

Answer 30

Under S51B of the Criminal Procedure (Scotland) Act 1995, the accused must prove diminished responsibility on the balance of probabilities if they claim it as a defense to a murder charge. This defense can reduce the charge from murder to culpable homicide if the accused's ability to control their conduct was substantially impaired due to an abnormality of mind.

Question 31

What does "balance of probabilities" mean in the context of legal defenses like mental disorder or diminished responsibility?

Answer 31

"Balance of probabilities" means that the accused must prove their defense by showing that it is more likely than not that the defense is true. This is a lower standard than "beyond a reasonable doubt" and is used in certain criminal defenses like mental disorder and diminished responsibility.

Question 32

What does it mean for a witness to be competent in court?

Answer 32

A witness is considered competent if they can give intelligible testimony. They must be able to communicate in some way, such as using an interpreter, to be deemed competent. Children and disabled people can also be competent if they can communicate effectively.

Question 33

Can witnesses be forced to testify in court?

Answer 33

Yes, witnesses can be compelled to testify under the sanction of contempt of court, meaning they can be forced to give evidence, even if they do not want to, unless they are in an excluded category.

Question 34

Is the accused competent and compellable as a witness for the prosecution?

Answer 34

No, the accused is not competent nor compellable as a witness for the prosecution. However, the accused can testify in their own defense, and it is their choice whether or not to testify. If they do testify, they can be cross-examined by the prosecution.

Question 35

Why is the accused entitled to decide whether or not to testify?

Answer 35

The accused is entitled to decide not to testify because they are presumed innocent until proven guilty. The right to remain silent is a fundamental principle in criminal law.

Question 36

What types of evidence can be considered digital evidence in court?

Answer 36

Digital evidence includes evidence from websites, emails, text messages, tweets, Facebook posts, chatroom conversations, and video footage.

Question 37

What are some challenges with using digital evidence in court?

Answer 37

One challenge with digital evidence is ensuring its authenticity. For example, it can be difficult to confirm whether an email actually came from the accused. The provenance of the digital evidence must be established to confirm its reliability.

Question 38

What is the role of the digital evidence vault in modernizing Scottish courts?

Answer 38

Since 2017, Lord Carloway has recommended the creation of a digital evidence and information vault (DIV). This vault allows digital evidence to be shared securely between the prosecution and defense, ensuring both sides can view evidence stored by the police in a central location. This system also helps with vulnerable witnesses, such as children or victims, allowing them to give evidence without being in the same room as the accused.

Question 39

How does digital evidence assist vulnerable witnesses in court?

Answer 39

Digital evidence allows vulnerable witnesses, like children or victims, to give evidence using technology, which can prevent them from having to testify in person in the same room as the accused. This helps reduce trauma and increases accessibility.

Question 40

What is the significance of the case Gubinas v HM Advocate [2017] in relation to digital evidence?

Answer 40

In Gubinas v HM Advocate [2017], the Scottish court ruled that once the provenance of video evidence is established, the jury can make inferences from the video as if it were oral testimony. This case confirmed that video evidence, once authenticated, can be treated as reliable for drawing conclusions about the events depicted.

Question 41

What was the key issue in the Gubinas v HM Advocate [2017] case?

Answer 41

The key issue in Gubinas v HM Advocate [2017] was whether video evidence of a serious sexual assault, recorded by the accused, could be used in court. The complainer (victim) stated that the video appeared consensual, but she was intoxicated and unable to consent. The case highlighted the challenges of using video evidence in cases involving consent.