Topic 8- Evidential Matters and Burden of Proof Flashcards
What are the two facts in issue?
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
Who must written admissions be put to?
The jury, provided they are relevant to an issue
Who makes formal admissions?
Counsel- the jury must be made aware of what has been formally admitted
What is the cardinal rule of law of evidence?
All evidence relevant to the facts in an issue is admissible
If it is not relevant, it may be excluded
Is evidence of motive, intention or knowledge inadmissible or admissible?
It is inadmissible, as it is irrelevant to what the Crown must prove
Is evidence of good character of a prosecution witness admissible?
Usually inadmissible, but could be admissible if relevant to an issue in case
What must be attached to the production of “real evidence”?
A testimony identifying the object and connecting it with the facts
What is real evidence?
Tangible objects that can be used as evidence
What is “view” evidence?
Inspection out of court of an object which is impossible to bring to court (eg, a car, a location, etc)
Who must attend a “view” of evidence>
The judge, the jury, the parties, the counsel
When must a “view” of evidence take place?
Before the conclusion of evidence
Who are questions of law for?
The judge
Who are questions of fact for?
The jury
What are examples of questions of law for the judge?
Admissibility of evidence
Accused is unfit to plead
Discharge of jury
Summing up
Burden of proof
What are examples of questions of fact for the jury?
The credibility of a witness
The weight of the evidence adduced
The existence or non-existence of facts in issue
Who decides on the questions of fact and law in summary trials?
The magistrates
But should seek advice from their legal advisor
What is contained in PACE 1984 s78(1)?
Evidence should be refused if the admission would have an adverse effect on the fairness of the proceedings
Where is the most important discretionary power to exclude otherwise admissible prosecution evidence contained?
PACE 1984 s78(1)
What is PACE 1984 s78(1) used for?
It may be used to exclude any evidence on which the prosecution rely (if it fits the criteria)
What are the two factors for excluding evidence at common law?
- Any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value
- Admissions/confessions obtained from the accused by unfair or improper means
If the prosecution wish to adduce evidence obtained by improper or unfair means, how can this be excluded?
Either through PACE 78, or through common law
Does the judge have the power to exclude evidence?
Yes, if they believe its prejudicial effect will outweigh its probative value
What are the two types of burden?
Legal burden
Evidential burden
What is the standard of proof for discharging the legal burden if held by the prosecution?
Proof beyond reasonable doubt
What is the standard of proof for discharging the legal burden if held by the accused?
On the balance of probabilities
What is the evidential burden?
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
If there is no evidence sufficient to justify a jury concluding that the defence is established, what will happen?
The issue will be withdrawn
What is the general rule for legal burden?
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
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?
Insanity
Express statutory exceptions
Implied statutory exceptions
In a case of rape, what negative averments must the prosecution prove?
That the complainant did not consent
What is the exception for legal burden in a case of defence of insanity?
(i.e, where the accused must prove)
If the accused raises the defence of insanity, the accused bear the burden of proving it (on BoP
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)
Homicide
Accused must prove that they are not liable to be convicted of murder –> i.e, getting it down to manslaughter
Why is the legal burden for offensive weapon cases different?
The expressed statutory exception arises
The accused must prove on BoP that they had a reasonable excuse for possession
What is the reverse onus provision?
This is the exception to the general rule of legal burden
Meaning the accused must prove an element
What is the standard of proof?
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
What directions must the judge give the jury on standard of proof?
The judge must make clear to the jury of the standard of proof the prosecution are required to meet (beyond reasonable doubt)
In the exceptional cases where there is a reverse onus of proof, how is a legal burden discharged by the accused?
By proving on the balance of probabilities
What is the definition of proof on the balance of probabilities?
Where evidence is “more probable than not”
