Trial Preparation Ans Evidence

Question 1

What is Case Theory

Answer 1

After obtaining the all inclusive facts the advocate then extract from the facts of the case the ingredients of the offence and decide on the strategies to adopt. So he establish the LINe of argument on the basis of the facts gathered, thee lines of argument become the theory of the case

Question 2

Case theory in a simple sense

Answer 2

As a Summary of the facts, explaining exactly what happened from the perspective of a lawyer’s client. It must be logical.

Question 3

Qualities of ACase Theory

Answer 3

1 Persuasive and Simple. 2. It must be logical and comprehensive . 3. It must be credible and believable.4 it must lead to right conclusions ie consistent with provable facts.,. 5?it must be based on undisputed facts, if disputed must be consistent with evidence or common sense.6 It must be prepared in chronological order.

Question 4

Preparation

Answer 4

The right side to start from is to write out all the relevant events that occurred in a Chronological order. Eg in Murder case - how the did the relationship started? Then tie up the events with available evidence. In civil cases if the evidence is a document then check .

Question 5

Preparation 2

Answer 5

Check the list of witnesses, are they relevant, are they willing to appear, do l need to subpoena some, what are the things expected of the witnesses.

Question 6

Preparation 3

Answer 6

The order of calling witnesses is to be considered at the preparation stage. In Igwede V Queen SC : in any criminal case t it is better for the accused to first testify because he is better equipped with the facts of the matter than anyone.

Question 7

Preparation 4

Answer 7

Main Issue - in criminal litigation the advocate must advert his mind to the main issue what defines the main issue - the charges and the pleas of the defendant define the main issues.

Question 8

Joining of issues in criminal

Answer 8

After arraignment of the defendant is completed and the defendant pleads not guilty, it is said the issues have been joined

Question 9

Burden of proof ( Section 132 )EA

Answer 9

The onus that the prosecutor has to discharge in order to prove material facts showing culpability or guilt of the defendant is called Burden of proof or Onis of proof . It is not for the defrost prove his innocence. Section 36(5) of the Constitution.

Question 10

Types of Burden of Proof

Answer 10

. General B P to establish a case .2 Evidential BP to adduce evidence on a particular case or fact.

Question 11

Relevant sections on Burden of Proof

Answer 11

Section 132 . BP lies on the person who will fail. 139 - exemptions , exceptions, 140 facts only known to the knowledge of the defendant. Section 137 burden of proof on the defendant shall be discharged on The Balance Of Probability.

Question 12

Effect of Not guilty Plea

Answer 12

That means he has joined issues and put himself up for a trial

Question 13

Burden of proof in defence

Answer 13

Woolmington V DPP- The standard of proof of criminal defence, exceptions etc in based on balance of probability.

Question 14

Standard of Proof

Answer 14

The quantity and quality of evidence that is expected of the party to convince the court with regard to the the existence of what he must have asserted. The quantum or level required by law - beyond reasonable doubt. Section 135(1) EA

Question 15

Standard of proof on the defence

Answer 15

In the case of Igbabele bs State -SC - it is not for the defendant to prove his innocence but for the Prosecution to prove beyond reasonable doubt. ( A driver murdered his coworker)

Question 16

When burden of Proof may shift to the defendant

Answer 16

When Prosecutors proves his case beyond reasonable doubt the burden of proof that shift to the the accused person is to Establish reasonable doubt.

Question 17

Section 36(5) VS Section 181 of EA

Answer 17

The right to remain silent by the defendant and the right of Court and prosecution to comment see the case of lgabele vState - however circumstances may require the accused party to give some explanation if he fails inference of guilt against him wil be supported by the court.

Question 18

Sufficient evidence and burden of proof

Answer 18

In Emeka vs State( ritualist case) The Court concluded that the burden of proof may be discharged in any of the following 1. Confession.2. Circumstantial evidence.3. Evidence of eye witnesses. Confession alone can support conviction without corroboration as long as the court is satisfied of he truth .

Question 19

Meaning of beyond reasonable doubt

Answer 19

Abdullah vs State- failure of the victim to mention the name of the accused at the first opportunity during police report created doubt on the prosecution case , case resolved in favour of the accused.

Question 20

Circumstances where the Burden of proof will be on the defendant

Answer 20

Question 21

Competence and Compellability

Answer 21

Ability to give evidence and Authority of court to compel a person to testify.

Question 22

Competence

Answer 22

As general rule every person is competent ( Section 175) EA . Unless the court considers that they are prevented from understanding the question put to them OR form giving rational answers to those questions.

Question 23

Factors that may affect Understanding and Rationality

Answer 23

Tender years 2. Extreme Old age.3. Disease whether of body or mind. Note however thatCompetence is a matter of intellectual Capacity and not a matter of age . Section 175 and 176 provide for unsound mind and dumb witnesses respectively. It allows the unsound to give evidence during Lucid intervals.

Question 24

Exceptions to the General rule of competence 1.

Answer 24

Evidence of a Child. A Child is a person who has not attained the age of 14.

Question 25

Evidence of a child

Answer 25

A child is a competent witness unless if by virtue of his age he is incapable of understanding the question and giving rational answers. The procedure is that a child who is below the age of 14 cannot give sworn evidence, meaning that his evidence must be corroborated.

Question 26

Evidence of a child 2.

Answer 26

A child can testify only if the court is satisfied that “ he possesses sufficient intelligence and understands the duty of speaking the truth.Note the requirement of sufficient intelligence and duty of speaking the truth are conjunctive .

Question 27

Evidence of Co-Defendant

Answer 27

Apart from testifying for the prosecutor, a co defendant, while testifying for himself he may incriminate his codefendant. The position of law is that such incriminating evidence may be utilized by court to convict either or both of them.

Question 28

Computer Generated Evidence Section 84.

Answer 28

The purpose of the section is primarily to ascertain the authenticity of a computer generated documents before admitting them in evidence.

Question 29

Conditions for Computer generated evidence to be admissible

Answer 29

Question 30

Corroboration ( where it is required by law)

Answer 30

Evidence of an Accomplice ( an accessory after the fact to the offence or receiver of a stolen goods) needs corroboration Section 198(1) EA.

Question 31

Essential of Corroborative evidence

Answer 31

It confirms another evidence.2 it’s nature varies from one case to another. 3. Corroborating Ev. must be independent. Note : No particular numbers of witnesses are required to prove the guilt of a defendant ( section 200EA) Mohammed V The state.

Question 32

Evidence of a tainted witness

Answer 32

A TW has been described as a witness who may be or may not be an accomplice but who, by evidence he gives whether as Witness for the P or the Defendant,may be regarded as having some purpose of his own to serve. So therefore the evidence of a TW should be treated with caution and is corroborated.