Unit 3 Principles and Procedures to Admit and Exclude Evidence Flashcards
Principles and Procedures to Admit and Exclude Evidence
(a) evidence must be relevant to the facts in issue in the case; and
(b) evidence must be admissible. This means that the rules which comprise the law of evidence must allow such evidence to be used in a criminal trial.
The legal burden of proof
Prosecution bear the legal burden of proving the defendant’s guilt.
The standard of proof is beyond a reasonable doubt.
Occasionally the legal burden of proof will also fall upon the defendant.
E.g. when a defendant who pleads not guilty and raises the defence of insanity or duress. Have to prove facts of the defence. Standard of proof that is required is proof on the balance of probabilities.
The evidential burden
- Prosecution
If the prosecution fails to present sufficient evidence, the defendant’s solicitor (or counsel) will be entitled to make a submission of no case to answer, and to ask the court to dismiss the case.
- Defence
A defendant who raises a specific defence (alibi, or were acting in self- defence), does not have the burden of proving that defence – they an evidential burden to raise it. The burden of disproving this then rests with the prosecution.
Visual identification evidence - Challenging the admissibility as disputed
s78 gives court discretion to exclude evidence where admission would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
Commonly raised by defence where police breached PACE84 or codes of practice.
E.g.
(a) at a video identification procedure, the police may breach the requirement that the other images shown to the witness must resemble the suspect in age, general appearance and position in life (Code D, Annex A, para 2);
(b) at an identification parade, the police may breach the requirement that the witnesses attending the parade are segregated both from each other and from the suspect before and after the parade (Code D, Annex B, para 14);
(c) a breach of the Codes of Practice will occur if, whilst the defendant was detained at the police station, the police failed to hold an identification procedure when such a procedure should have been held pursuant to para 3.12 of Code D.
If court decides not to exclude then undermine it in cross examination.
Visual identification evidence - The Turnbull guidelines
A witness will identify the defendant as the person who committed the offence if:
(a) the witness picks out the defendant informally; or
(b) the witness identifies the defendant at a formal identification procedure at the police station; or
(c) the witness claims to recognise the defendant as someone previously known to them.
If a witness only gives a description to the court of the person who committed the crime, but there is no direct evidence that it was the defendant (other than the fact that the defendant’s physical appearance matches the description given), the Turnbull guidelines will not apply.
Visual identification evidence - The Turnbull guidelines - application - Assessing the quality
Trial judge responsible for assessing.
Factors to consider:
(a) The length of the observation
(b) Distance
(c) Lighting
(d) Conditions
(e) How much of the suspect’s face did the witness actually see
(f) Whether the person identified was someone who was already known to the witness
(g) How closely does the original description given by the witness to the police match the actual physical appearance of the defendant?
Visual identification evidence - The Turnbull guidelines - application - differing qualities
- Identification is good quality
If judge thinks good, judge will give turnbull warning to jury before they retire:
- point out to them the dangers of relying on identification evidence,
-special need for caution when such evidence is relied on.
- Easy for an honest witness to be mistaken as to identity
- Direct the jury to examine closely the circumstances of the original sighting and take into account the factors when considering the quality.
- Identification poor but supported
- Turnbull warning.
- Draw to the specific attention of the jury the weaknesses in the identification evidence which has been given.
- Warn the jury about the dangers of convicting on the basis of the identification evidence alone and tell the jury to look for other supporting evidence.
- Told what other evidence may amount to supporting evidence.
- Identification poor and unsupported
Judge should stop the trial at the end of the prosecution case and direct the jury to acquit the defendant.
This will normally follow a submission of no case to answer being made by the defence.
Visual identification evidence - The Turnbull guidelines - mags
Magistrates decide matters of both fact and law, and it will therefore be necessary for the defendant’s solicitor to address the magistrates on the Turnbull guidelines during the course of the trial.
Identification poor and unsupported:
Make a submission of no case to answer at the end of the prosecution case.
If the identification evidence given by the eyewitness is either good or poor, but supported by other evidence called by the CPS, they will instead address the Turnbull guidelines in their closing speech to the magistrates.
Inferences from silence
Right to silence but court may be allowed to draw adverse inferences from it.
Usual inference that the jury or magistrates will draw is one of recent fabrication.
Or defendant did not put the defence forward when interviewed by the police because they did not believe it would stand up to further investigation by the police.
Cannot be convicted solely on adverse inferences.
Court is NOT allowed to draw an adverse inference from a defendant’s silence if that silence occurred at a time when the defendant had not been allowed the opportunity to consult a solicitor to obtain independent legal advice.
Inferences from silence - s34 CJPOA 1994
Allows the court or jury to draw an adverse inference from a defendant’s silence when the defendant was being questioned or charged at the police station.
R v Argent - conditions:
(a) the interview had to be under caution;
(b) the defendant had to fail to mention any fact later relied on in his defence at trial;
(c) the failure to mention this fact had to occur before the defendant was charged;
(d) the questioning of the defendant at the interview had to be directed to trying to discover whether or by whom the alleged offence had been committed; and
(e) the fact which the defendant failed to mention had to be a fact which, in the circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned.
Condron v UK - drawn only if the court was satisfied that the real reason for the defendant’s silence was that they had no answer to the questions that were being put to them, or no answer that would stand up to scrutiny.
R v Betts and Hall - if a defendant remained silent during their initial interview at the police station and then answered questions during a subsequent interview, inferences from their failure to answer questions in the first interview might still be drawn at trial.
Inferences from silence - s34 CJPOA 1994 - Use of a prepared written statement
As long as a written statement which is handed to the police contains all the facts which a defendant later relies on in their defence at court, the court will not be able to draw an adverse inference under s 34 if, having handed in the statement, the defendant then refuses to answer questions from the police based on the contents of that written statement.
Solicitor didn’t hand it in - prevent the court at trial from drawing the inference of recent fabrication, it will not prevent the court from drawing an inference that the defendant was not sufficiently confident about their defence.
Inferences from silence - s34 CJPOA 1994 - Silence on legal advice
Cannot generally avoid adverse inferences by saying silence was based on legal advice.
Beckles and Howell cases - jury will be directed by the trial judge that adverse inferences should not be drawn under s 34 (and ss 36 and 37) if the jury believe that the defendant genuinely and reasonably relied on the legal advice to remain silent.
Bringing this up in trial does not waive legal privilege.
Court is likely to want to know the reasons for the solicitor’s advice. Once a defendant gives this information, legal privilege is said to be waived - can be cross examined on it.
Inferences object, substance, mark - s 36 CJPOA 1994
If, when interviewed by the police, the defendant failed to account for the presence of an object, substance or mark.
Only if given special caution:
(a) what the offence under investigation is;
(b) what fact the suspect is being asked to account for;
(c) that the officer believes this fact may be due to the suspect taking part in the commission of the offence in question;
(d) that a court may draw an adverse inference from failure to comply with the request; and
(e) that a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial
Inferences from failing to account for presence - s 37 CJPOA 1994
If, when questioned at the police station, the defendant failed to account for his presence at a particular place at or about the time the offence was committed.
Only if a suspect has been given the ‘special caution’.
Inferences from silence at court - s 35 CJPOA
A defendant who fails to give evidence on his own behalf at trial may be subject to an adverse inference being drawn by the court or jury.
R v Cowan; R v Gayle; R v Ricciardy - factors to take into account:
(a) the burden of proof remains on the prosecution throughout;
(b) the defendant is entitled to remain silent;
(c) before drawing an adverse inference from the defendant’s silence, the court had to be satisfied that there was a case to answer on the prosecution evidence;
(d) an adverse inference from the defendant’s failure to give evidence cannot on its own prove guilt; and
(e) no adverse inference could be drawn unless the only sensible explanation for the defendant’s silence was that he had no answer to the case against him, or none that could have stood up to cross- examination.
Court has discretion to direct that an adverse inference is not drawn where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.
