Preliminary evidential matters Flashcards
What does facts in issue comprise of and how are they determined?
Comprise:
(a) Facts which P bear burden of proving/disproving to establish G
NB: = whole of case if plea of NG
(b) Facts which (in exceptional cases) A bears burden of proving
E.g. in order to succeed in a defence
Determined by reference to:
(1) legal ingredients of offence charged (e.g. A’s identity, nature of the act AR+ MR),
and
(2) any defence raised
- Facts in issue are either proved or they are not = binary system
What are formal admission of facts? s.10 CJA 1967
S.10 CJA 1967 - power to agree on facts = Are admissions taken as ‘proof’ of a fact in issue and not open to contradictory proof
May be made of ‘any fact of which oral evidence may be given in any criminal proceedings’
What does s.10 CJA 1967 NOT include as admissible facts?
- Inadmissible hearsay
- cover (expert) opinion s.10(1)
NB: s 10(1) admits party who accepts another party’s expert’s conclusions may admit them as fact under s 10
Are formal admissions made by counsel orally that appear on shorthand note admissible facts?
Yes but should appear on shorthand note
Only where:
- A party relies on a fact admitted by another party, or parties jointly admit a fact
- must be a written record the admission (unless court directs otherwise)
Can there be leave to withdraw formal admissions?
Must be given with evidence from A + advisors of mistake/misunderstanding
Written admission should ordinarily be put before jury, provided they? (2)
(1) are relevant to an issue before jury,
and
(2) do not contain material which shouldn’t go before jury
+ important that jury is clear on what has been formally admitted
What’s the general rule for a fact to be admissible (and relevant)? Sufficiently relevant test
General rule = all evidence “sufficiently relevant” to the facts in issue = admissible
Relevant = capable of increasing/decreasing likelihood that a fact in issue happened
What are the exceptions to admissibility of otherwise relevant evidence? Reasonable jury test(etc)
Test: No reasonable jury, properly directed as to its defects, could place any weight on it
- If an offence of strict liability = evidence of motive/intention/knowledge inadmissible (b/c irrelevant)
NB not same binary system in re: relevant facts (cf. facts in issue): relevant facts may have happened (& therefore make a fact in issue more/less probable)
Is evidence of P W good character admissible? (oath-helping)
Generally inadmissible as it may amount to ‘oath helping’
e.g. to show a P W is ‘a generally truthful person who should be believed’
Evidence of Good character may be admissible if relevant to a issue in trial - what are these? (3)
Issues showing disposition:
1) Rape w/ defence of consent → evidence of P W’s disposition to resist any form of pre-marital sexual intimacy is admissible
2) Murder w/ defence of self-defence → evidence of deceased’s non-violent disposition
3) GBH w/ defence of self-defence (after racially abusive comments) → evidence to show P W was not racist
- Category of issues (as evidence of disposition) is open
- judge should ensure that its effect is not to water down burden of proof on P & any good character direction given for A
What’s direct evidence?
= evidence of facts in issue
W testimony → facts of which W claims to have personal knowledge (e.g., ‘I saw A strike V’)
What’s circumstantial evidence?
Evidence of relevant facts (from which existence or non-existence of facts in issue may be inferred = court can draw conclusions)
- Works cumulatively by, taken together, eliminating other possibilities
More weight is given to consistent circumstantial evidence than inconsistent direct testimonial evidence from W lacking credibility - is this the right approach?
Yes
- must always be narrowly examined b/c may be fabricated
Where P’s case is based on circumstantial evidence, is the judge required to acquit?
No, judge needs not to acquit
- Unless sure that the facts proven are inconsistent with any other reasonable conclusion
Where P relies on inconsistent Circumstantial Evidence - what are the jury directions here?
1st judge summaries D’s evidence/arguments and direct (need not be these exact words) jury to:
1) assess which, if any, stand of evidence is accepted/ rejected + drawn fair and reasonable conclusions from accepted CE
2) not to speculate or guess or make theories about matters which their view are not proved by evidence;
and
3) to decide, having weighed up all evidence, whether P have made them SURE that D is G.