Procedures to Admit and Exclude Evidence Flashcards
What are the Turnbull guidelines?
Guidelines which set out factors for determining the reliability of identification evidence
When must the Turnbull guidelines be followed?
If a case wholly or substantially relied on identification evidence which D disputes
What are the 8 elements of the Turnbull guidelines?
- Amount
- Distance
- Visibility
- Obstruction
- Known to the witness
- Any special reason to remember suspect
- Time
- Errors
(Remember: ADVOKATE)
What should a judge do if they conclude that identification evidence is weak after considering the guidelines and there’s no other supporting evidence?
Withdraw the case from the jury and enter an acquittal
What is a Turnbull warning?
A special caution given to the jury before convicting D in reliance of identification evidence, as a mistaken or several mistaken Ws can be convincing
Do Turnbull warnings apply to the identification of objects (e.g. a car)?
No - identification of people only
Give 4 examples where a judge or jury may draw an adverse inference from D’s silence
- Failure to reply to charge
- Failure to give evidence at trial
- Failure to account for an object, substance, or mark found on D’s person when arrested
- Failure to account for presence at the crime scene
An example of drawing an adverse inference when failing to reply to charge is where D puts forwards ___ ______ at trial which weren’t mentioned when they were ______
new facts, charged
There is a rule against hearsay in criminal trials (it is generally not admissible)
What are 4 circumstances in which hearsay may be admissible in criminal trials?
- Statute
- Rule of law
- Interests of justice
- Agreement of the parties
(remember: RIAS)
What are three situations in which hearsay may be admissible under statute?
- Unavailable witness
- Adducing a business document
- Statements prepared for use in criminal proceedings
Give 4 examples of witness unavailability for hearsay permitted by statute
W is:
1. Dead
2. Unfit
3. Impractical to secure their attendance if outside the UK
4. Unable to be found
Name 2 requirements for a business document to be adduced as hearsay permitted by statute
- Document created/received by other person in the course of trade/business
- Personal knowledge of the matter by the person who adduced it
Give three examples of statements prepared for use in criminal proceedings which may be admissible hearsay under statute
- Earlier consistent/inconsistent statements of W
- Expert evidence
- Confessions (overheard by a W)
What are 2 types of statements that can be admissible hearsay under the rule of law?
- Contemporaneous statements
- Res gestae statements
What are the 3 types of res gestae statements?
- W emotionally overpowered
- Statements accompanying an act
- Statements about physical or mental state
What is multiple hearsay?
When a statement has been relayed through more than 1 person before it gets to court
What are the only 4 situations in which multiple hearsay would be admissible?
- Business document
- Consistent/inconsistent statement
- Agreement of all parties
- Interests of justice
What are 3 elements of a confession?
- Any statement made wholly or partly adverse to the person who made it
- Whether made to a person in authority or not
- Whether made in words or otherwise
Confessions are admissible if they are _______ to a matter in issue
This means if it goes to ______ or ________ some fact in issue between P and D
relevant
proving, disproving
Confessions obtained in what 2 ways must be excluded under s76 PACE?
- Oppression
- Things said or done likely to render the confession unreliable
When a confession is challenged on the basis of oppression/things said or done, the P must show beyond _________ ______ that neither oppression nor things said/done rendered the confession _______
reasonable doubt, unreliable
In the Crown Court, the admissibility of a confession is decided by the _____ in the absence of a jury in a ____ _____ hearing
judge, voir dire
In the Magistrates Court, if the bench decide the evidence is inadmissible, they must put the evidence ____ _____ _____ in deciding the case
This is because the bench is the trier of both law and ____
from their minds
fact
s78 PACE provides the court have discretion to exclude evidence offered by P if the admission would have a what?
adverse effect on the fairness of the proceeding
Courts may use their s78 power if police officers have ______ _____ _____ under PACE (e.g. obtaining evidence through illegal searches)
breached their duties
A court won’t exercise its discretion to exclude evidence under s78 unless its breaches are significant and _________ and have rendered the evidence ______
substantial, unfair
s76 PACE provides the court are under a mandate to exclude ________ which are _______ (e.g. due to oppression or things said or done)
confessions, unreliable
What are the 7 grounds for the admission of bad character evidence (BCE)?
(clue: A.A.I.R.S.C.D)
a. Agreement of parties
b. Adduced by D
c. Important explanatory evidence
d. Relevant to an important matter in issue between P and D
e. Substantive probative value to an important matter in issue between co-defendants
f. Corrects a false impression made by D
g. D attacked another’s character
A main example of the relevance to an important matter in issue ground of BCE is the _________ to commit an _______ or be ________
propensity, offence, untruthful
Unless an offence has ______ or distinctive features in common with the previous conviction, propensity is unlikely to be made out on the basis of a _______ conviction
unusual, single
For the gateway of BCE of “D attacked another’s character”, does this also include where D’s representative attacked another’s character?
Yes
How many days notice within entry of a not guilty plea in the Magistrates Court must P provide if they wish to adduce BCE?
20 business days
How many days notice within entry of a not guilty plea in the Crown Court must P provide if they wish to adduce BCE?
10 business days
How many days does D have to object to the admission of BCE?
10 business days
If BCE is sought to be adduced under the gateways:
- ‘an important matter in issue between the prosecution and defence’ or
- ‘the defendant attacked another’s character’
The court must not admit the evidence if what 2 requirements are met?
- D makes an application to exclude it and
- it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.
(remember: this is a mandatory test - the courts must exclude it)
Give 2 examples of how good character evidence (GCE) can be evidenced
- Lack of criminal record
- Commendable behaviour
If D has no previous convictions, they are automatically entitled to have the judge give a good character _______, in that such a person is less likely to commit the offence and is more likely to be ______ when asserting their __________
direction, credible, innocence
