Topic 8- Evidential Matters and Burden of Proof

Question 1

What are the two facts in issue?

Answer 1

The facts which the prosecution bear the burden of proving or disproving

The facts which (in exceptional cases) the accused bears the burden of proving

Question 2

Who must written admissions be put to?

Answer 2

The jury, provided they are relevant to an issue

Question 3

Who makes formal admissions?

Answer 3

Counsel- the jury must be made aware of what has been formally admitted

Question 4

What is the cardinal rule of law of evidence?

Answer 4

All evidence relevant to the facts in an issue is admissible

If it is not relevant, it may be excluded

Question 5

Is evidence of motive, intention or knowledge inadmissible or admissible?

Answer 5

It is inadmissible, as it is irrelevant to what the Crown must prove

Question 6

Is evidence of good character of a prosecution witness admissible?

Answer 6

Usually inadmissible, but could be admissible if relevant to an issue in case

Question 7

What must be attached to the production of “real evidence”?

Answer 7

A testimony identifying the object and connecting it with the facts

Question 8

What is real evidence?

Answer 8

Tangible objects that can be used as evidence

Question 9

What is “view” evidence?

Answer 9

Inspection out of court of an object which is impossible to bring to court (eg, a car, a location, etc)

Question 10

Who must attend a “view” of evidence>

Answer 10

The judge, the jury, the parties, the counsel

Question 11

When must a “view” of evidence take place?

Answer 11

Before the conclusion of evidence

Question 12

Who are questions of law for?

Answer 12

The judge

Question 13

Who are questions of fact for?

Answer 13

The jury

Question 14

What are examples of questions of law for the judge?

Answer 14

Admissibility of evidence

Accused is unfit to plead

Discharge of jury

Summing up

Burden of proof

Question 15

What are examples of questions of fact for the jury?

Answer 15

The credibility of a witness

The weight of the evidence adduced

The existence or non-existence of facts in issue

Question 16

Who decides on the questions of fact and law in summary trials?

Answer 16

The magistrates

But should seek advice from their legal advisor

Question 17

What is contained in PACE 1984 s78(1)?

Answer 17

Evidence should be refused if the admission would have an adverse effect on the fairness of the proceedings

Question 18

Where is the most important discretionary power to exclude otherwise admissible prosecution evidence contained?

Answer 18

PACE 1984 s78(1)

Question 19

What is PACE 1984 s78(1) used for?

Answer 19

It may be used to exclude any evidence on which the prosecution rely (if it fits the criteria)

Question 20

What are the two factors for excluding evidence at common law?

Answer 20

1. Any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value
2. Admissions/confessions obtained from the accused by unfair or improper means

Question 21

If the prosecution wish to adduce evidence obtained by improper or unfair means, how can this be excluded?

Answer 21

Either through PACE 78, or through common law

Question 22

Does the judge have the power to exclude evidence?

Answer 22

Yes, if they believe its prejudicial effect will outweigh its probative value

Question 23

What are the two types of burden?

Answer 23

Legal burden

Evidential burden

Question 24

What is the standard of proof for discharging the legal burden if held by the prosecution?

Answer 24

Proof beyond reasonable doubt

Question 25

What is the standard of proof for discharging the legal burden if held by the accused?

Answer 25

On the balance of probabilities

Question 26

What is the evidential burden?

Answer 26

The burden imposed on a party to adduce sufficient evidence on facts in issue to satisfy the judge that such issues should be left to the jury

Question 27

If there is no evidence sufficient to justify a jury concluding that the defence is established, what will happen?

Answer 27

The issue will be withdrawn

Question 28

What is the general rule for legal burden?

Answer 28

That the prosecution bear the legal burden in proving all the elements in the offence necessary to establish guilt The defence therefore obviously don't need to prove the elements

Question 29

What are the 3 exceptions to the general rule for legal burden? I.e, what circumstances arise where the accused bears the burden of proving certain facts?

Answer 29

Insanity Express statutory exceptions Implied statutory exceptions

Question 30

In a case of rape, what negative averments must the prosecution prove?

Answer 30

That the complainant did not consent

Question 31

What is the exception for legal burden in a case of defence of insanity? (i.e, where the accused must prove)

Answer 31

If the accused raises the defence of insanity, the accused bear the burden of proving it (on BoP

Question 32

What is a key example of an expressed statutory exception to the general rule for legal burden? (ie. where the accused must prove an element)

Answer 32

Homicide Accused must prove that they are not liable to be convicted of murder --> i.e, getting it down to manslaughter

Question 33

Why is the legal burden for offensive weapon cases different?

Answer 33

The expressed statutory exception arises The accused must prove on BoP that they had a reasonable excuse for possession

Question 34

What is the reverse onus provision?

Answer 34

This is the exception to the general rule of legal burden Meaning the accused must prove an element

Question 35

What is the standard of proof?

Answer 35

The degree to which proof must be established by a party bearing a burden of proof Eg, the standard for the jury to find the accused guilty

Question 36

What directions must the judge give the jury on standard of proof?

Answer 36

The judge must make clear to the jury of the standard of proof the prosecution are required to meet (beyond reasonable doubt)

Question 37

In the exceptional cases where there is a reverse onus of proof, how is a legal burden discharged by the accused?

Answer 37

By proving on the balance of probabilities

Question 38

What is the definition of proof on the balance of probabilities?

Answer 38

Where evidence is "more probable than not"

Question 39

Who bears the burden for proving insanity?

Answer 39

The defence on the balance of probabilities

Question 40

Is evidence relating to a collateral issue admissible?

Answer 40

No, but there is one exception

Question 41

What is the one exception to the collateral issue inadmissibility rule?

Answer 41

It will be admissible as evidence showing bias

Question 42

What are the prosecution's and defence's burdens on proving self-defence?

Answer 42

The Defence have the evidential burden to raise the issue of self-defence The prosecution then have the legal burden of disproving self-defence beyond reasonable doubt

Question 43

How much weight can be put on relevant, circumstantial evidence (eg, clothing, money)?

Answer 43

It is evidence of relevant facts Therefore it can carry significant weight

Question 44

What is an option for the Defence if they don't agree with a prosecution witness statement

Answer 44

They can serve notice on the Prosecution objecting to the statement being read- must be within 7 days of service of the statement

Question 45

What evidence can s78 PACE be used to exclude?

Answer 45

Only evidence that the Prosecution intend to rely on

Question 46

When the legal burden is on the Defendant, how do they discharge it?

Answer 46

Proving on the balance of probabilities

Question 47

What is real evidence used for?

Answer 47

To show its existence If it has words contained in it, these are disregarded, eg, facts in a letter won't be classed as real evidence

Question 48

If there is a dispute between the prosecution and defence's versions of events, what two options does the Judge have?

Answer 48

Either accept the Defence's version of events OR Hold a Newton hearing and make a finding of fact

Question 49

What are the two bases for an abuse of process application?

Answer 49

(1) where the defendant cannot have a fair trial or (2) because to continue a prosecution would be contrary to the court's sense of justice and propriety

Question 50

What burden is on an accused claiming duress?

Answer 50

The accused only bears the evidential burden of proving duress

Question 51

Who must prove defence on insanity and on what burden?

Answer 51

The defence must prove defence of insanity On the balance of probabilities

Question 52

Who must prove self-defence and on what burden?

Answer 52

The defence bear the evidential burden It is then for the prosecution to disprove it beyond reasonable doubt