Week 5- ID evidence

Question 1

Legal burden of proof for D

Answer 1

On balance of probabilities

Question 2

**

Legal burden of proof for prosecution

Answer 2

Prosecution must prove D committed offence (all ingredients of offence) beyond reasonable doubt

Question 3

What is the evidential burden?

Answer 3

The burden to raise some evidence to satisfy the judge that the matter should be argued before the jury is the evidential burden. In every case, if you have a legal burden to prove a fact in issue, you have the evidential burden of ‘passing the judge’ with the same evidence.

Question 4

How do the legal and evidential burdens work in the special case of self-defence?

What does it mean for legal and evidential burden to become detached?

Answer 4

The judge requires ‘some evidence’ to be raised in order to ‘pass the judge’ that D acted in self-defence. If the judge is satisfied this threshold is met, the prosecution is on notice that to prove that the use of force was lawful, it has to disprove self-defence.

Eg: D says V attacked first which passes the judge as evidence is raised. Jury is told because the defence has raised self-defence you have to be sure beyond reasonable doubt that the force used by D was unlawful and not in self-defence. D doesn’t bear legal burden of proving self-defence.

Question 5

Where does burden of proof lie if duress is raised as defence?

Question 6

Where does burden of proof lie if D raises an alibi on defence?

Question 7

What happens if D raises a defence?

Answer 7

Generally speaking, D just needs to satisfy evidential burden. It is only in the case of certain defences, like insanity or diminished responsibility, where D bears burden of proving defence on balance of probs.

Question 8

In what cases is a Turnbull direction appropriate?

Answer 8

1. Where the case against D depends wholly or substantially on the correctness of an identification of D
2. Which D alleges is mistaken

Question 9

What is the content of a Turnbull direction?

Answer 9

The judge should warn the jury of the special need for caution before convicting D in reliance on the correctness of the identification evidence. This means the judge should:

1) Instruct the jury as to the reason for the need for such a warning (eg convincing, honest witnesses, can be wrong)
2) Direct the jury to examine the circumstances in which the identification by each witness came to be made.
This is where the below ADVOKATE criteria come in.
3) Remind the jury of any specific weaknesses in the identification evidence.