3. Procedures to Admit and Exclude Evidence Flashcards
1
Q
In what context are Turnbull guidelines relevant?
A
When a case wholly or substantially relies on identification evidence and the evidence is disputed by defendant.
2
Q
What are the eight ADVOKATE guidelines given to the jury to consider in evaluating the weight of the identification evidence?
A
- Amount of time for which the witness observed the suspect
- Distance between W and S
- Visibility at the time
- Obstruction between W and S?
- Known or unknown (S to W)
- Any particular reasons to remember
- Time lapse between incident and ID
- Errors in W’s first description
3
Q
What must the judge do if the ID evidence is of poor quality and unsupported by additional evidence?
A
Judge has discretion to either:
1) Withdraw the case from the jury at the end of the prosecution’s case; or
2) Give “special direction” to jury to acquit the defendant.
4
Q
When giving a Turnbull warning to the jury at the end of the trial, what three things should the judge do?
A
- Warn of special need for caution before convicting based on ID evidence, as mistaken Ws can be convincing
- Ask jury to consider circumstances in which W identified D
- Specifically refer to objective weaknesses in the evidence, considering ADVOKATE
5
Q
Adverse inferences drawn under s.34 CJPOA
A
Where defendant remains silent when questioned or charged, but later puts forward an account/fact responding to original question + reasonably ought to have mentioned.
6
Q
What are the two questions the court must answer when determining whether to admit bad character evidence under gateway s.101(1)(e) between co-defendants?
A
1) Does the evidence has substantial probative value?
2) If so, is it a matter of substantial importance to the case as a whole?
* consider whether other evidence in case already sheds light on this same issue - does it bring something more to case…?
If court is satisfied in relation to both questions - must admit evidence.
* no discretion to refuse.
7
Q
What is a way a defendant might seek to avoid inadvertently opening the prosecution to rely on s.101(1)(f) to admit bad character evidence?
A
by withdrawing or dissociating themselves from the assertion before trial
8
Q
What conduct may be considered an ‘attack on another,’ and consequently leave a defendant vulnerable to the prosecution adducing bad character evidence under gateway s.101(1)(g)?
A
- allegation that the prosecution’s witnesses are biased;
- alleging that police deliberately fabricated evidence or flouted Pace rules;
- adducing evidence of a prosecution witness’ bad character w/ out prior permission from the court
9
Q
What are key points to note about the implications of triggering gateway (g) for bad character?
A
- can be triggered early on, ie. at police station.
- no opportunity to withdraw attack.
- even if permission is granted to adduce witness’ bad character evidence, gateway (g) may still be triggered.
10
Q
Adverse inferences drawn under s.36 CJPOA
A
Failure to account for mark, object, or substance found on person at time of arrest.
11
Q
Adverse inferences drawn under s.37 CJPOA
A
Failure to account for presence at crime scene at time of arrest.
12
Q
Adverse inferences drawn under s.35 CJPOA
A
Failure by defendant to testify at trial
13
Q
What distinguishes adverse inferences drawn raised under s.34 versus those arising via s.36/37 CJPOA
A
S.37 and s.36 = do not require additional facts to be mentioned by defendant at trial.
- A mere failure to account suffices to draw an adverse inference.
14
Q
Six conditions allowing for an adverse inference to be drawn under s.34 CJPOA
A
ALL conditions must be met:
- proceedings against an person for an offence have started.
- alleged failure occurred before or on charge:
- D was questioned by a constable.
- Purpose of questioning was to discover how/who committed alleged offence.
- D relies on a fact as part of their defence that was not mentioned during interview.
- reasonable in circumstances for D to have mentioned fact.
15
Q
What key principle must the court consider when determining whether to admit adverse inferences at trial?
A
s.38 of CJOA, which states that adverse inference cannot be admitted to bolster what is an otherwise weak case.
- judge should direct jury that a defendant cannot be convicted on basis of adverse inference alone.
16
Q
In what two circumstances can an adverse inference not be drawn under s.34/36/37 CJOPA
A
1) unfit to be interview - ie. ill-health, confusion, or shock. (‘Thames’ factors);
OR
2) D was not at an authorised place of detention at time (ie. police station) of the failure to account + not given opportunity to consult a solicitor prior to questioning/charge.
17
Q
If suspect declines legal advice, can an adverse inference still be drawn?
A
Yes - where suspect is given opportunity to consult with a solicitor, but declines, then an adverse inference can be drawn if appropriate.
18
Q
In relation to adverse inference, when should a solicitor advise their client to remain silent and why?
A
Where any of the following ‘Argent’ factors are in existence at the time:
THAMES
1) Tiredness
2) Health: ill-health
3) Age: under 18
4) Mental capacity: not mentally capable to answer questions. 5) Experience
6) Sobriety: deemed fit for interview? Being intoxicated is not an Argent excuse
- these may be considered “good/reasonable cause” for remaining silent.
19
Q
What is hearsay?
A
- statement (also includes pictures/photos)
- not made in oral evidence; and
- relied on to prove a matter stated (“truthfulness” of something)
20
Q
When is a statement considered as being made to prove a “matter stated”?
A
- made by a person with the intention of either:
1) causing someone to believe the matter stated;
2) causing someone to act or operate on basis that matter is as stated.
- must be intended to be heard/communicated (ie. ≠ private diary)
21
Q
Where the prosecution/defence intends to admit a statement to assert the ‘matter stated’ is untruthful, is that hearsay?
A
No!
- hearsay is about relying on a statement to assert truth of a matter.
22
Q
What are the four categories under which hearsay is admissible?
A
- Under statutory gateways
- Common law rules
- Agreement of all the parties
- In the interests of justice
23
Q
What are the categories under which hearsay evidence is admissible under statute?
A
- Witness is unavailable
- Business document adduced
- Previous inconsistent statements.
- Previous consistent statements.
- Documents prepared in anticipation of criminal proceedings.
- Interests of justice
- Multiple hearsay
24
Q
For hearsay, what is one key point to note about the business document that might be a trick-question?
A
If information is recorded into a police log following report of multiple hearsay, can only fall under this gateway if parties passing information to each other are engaging in business-type activity.
- If this was the case, then a police incident log could be treated as a business record.
- Otherwise, next best recourse is interest of justice gateway.
25
When is a witness deemed unavailable?
1. **D**ead
2. **U**nfit due to physical/mental condition
3. **F**ear's testifying due to defendant
4. **O**utside UK and not reasonably practicable to return
5. **U**nable to be found despite steps taken
| DUFOU
26
What are the three requirements for a business document to be adduced in exception to the rule against hearsay?
1. Created/received in the course of trade
2. Person who supplied the information may reasonably be considered to have personal knowledge of the matter, and
3. *If the information was received by other persons,* it was in the course of trade.
27
What are the three categories of *res gestae* statements which are admissible in exception to the general rule against hearsay?
Statements:
1. Made when a person is **so emotionally overpowered**, the idea of **fabrication** can be **disregarded**
2. Accompanying an act which can only be properly evaluated with reference to the statement
3. Relating to physical or mental state
28
In deciding whether to admit hearsay evidence **in the interests of justice**, what nine things must the court consider?
1. Probative value of the statement in proving a matter;
2. Alternate evidence is available?
3. Importance of the statement to the case;
4. Circumstances in which the statement was made;
5. Reliability of the maker;
6. Reliability of the *evidence* of actually being made (ie. multiple hearsay);
7. Can oral evidence be given?
8. Difficulty in challenging the statement?
9. **Extent of prejudice to D**
- also relevant when considering exclusions in s.117/116
## Footnote
DEAR COP - mnemonic
29
What is one key point to note about the 'interests of justice' gateway for hearsay evidence in relation to prosecution witnesses?
court will not allow prosecution to rely on 'safety valve' provision to simply rescue it form its failure to get its own witnesses to attend trial.
30
What may a defendant seek to adduce where their co-defendant confesses to the crime?
**if charged the same proceedings**, then defendant can rely on co-defendant's confession where it supports its own defence to crime.
31
What is multiple hearsay?
Hearsay within hearsay, where statement is relayed through more than one person before getting to court.
only gateways through which it can be adduced are (i) previous consistent/inconsistent statements (s.120/119) and (ii) business documents
32
In additions to all parties agreeing and in the interests of justice, what are the four situations in which multiple hearsay will be admissible?
1. Business document
2. Consistent or inconsistent statement
3. All parties agree
4. Court is satisfied that the **value** of the evidence in question is **so high** it is in the interests of justice to admit it.
33
What distinguishes gateway (c) from (d) regarding bad character evidence?
Gateway (c) is appropriate where there is an **overlap** with evidence that ‘has to do with’ the **alleged facts of the offence.**
* Without this background, the case would be incomplete.
34
What is a key point to remember about propensity to be untruthful regarding gateway (d)?
**not the same as dishonesty,** and types of offences that show lack of truthfulness are not the same (ie. more akin to fraud, than theft).
35
What is the definition of **confession**?
**Any statement**, wholly or partly **adverse to the person who made it**, whether made to a person in authority or not, and whether made in **words or otherwise**
36
What is required for a confession to be admissible?
It must be relevant to a matter in issue, i.e. it goes to proving or disproving some fact in issue.
- prima facie admissible.
37
Two ways a confession can be challenged under **s.76(2) of PACE Code**
1) obtained due to **oppression;** or
2) through something said or done that may render confession **unreliable**
* requires a **causal link** between the alleged conduct and D's confession - ie. would otherwise have been made.
**Mandatory** ground if successful in adducing evidence regarding either of these objections.
* once evidence is adduced, burden shifts to prosecution to prove on a balance of probalities why this should be the case.
38
When the admissibility of a confession is challenged, who bears the burden?
Prosecution must prove beyond a reasonable doubt that the confession was not obtained by oppression or unreliably.
39
What is the distinction between the two gateways in **s.76(2) of PACE Code** to challenge confession evidence?
**Oppression** - adduced confession via ‘torture, inhuman or degrading treatment, and the use or threat of violence.’
- if so, must be excluded even if court thinks that the confession is true/genuine.
**Unreliable** - confession was adduced via coercive means (ie. false promises, significant breaches of PACE).
- key question - whether any evidence obtained in these circumstances would be reliable (not just D's).
40
Is any further evidence obtained in light of a confession ruled inadmissible also automatically excluded?
No!
41
In what situation does the court have discretion to exclude *any* evidence offered by the prosecution?
If it appears, considering all the circumstances, that admission of the evidence would have an **adverse effect on the fairness of the proceeding**
42
Other than s.76(2), what additional provision may allow for the exclusion of confession evidence?
S.78 of PACE Code - catch-all provision.
- gives judge discretion to exclude otherwise admissible evidence on basis of unfairness.
- adverse effect on proceedings must be significant/substantial.
cf. from s.76, power to exclude under s.78 is discretionary ('may')
43
What are the seven grounds for admitting bad character evidence?
1. All parties agree
2. Evidence adduced by D
3. Important explanatory evidence
4. Relevant to important matter in issue *(including propensity to commit **similar** offences)*
5. Matter in issue between co-defendants
6. Correct a false impression given by D
7. D attacked another's character, or questions a witness intending to elicit such
44
What are the two conditions required for bad character evidence to be admitted as **important explanatory evidence**?
1. Without it, jury would find it difficult or impossible to properly understand other evidence
2. Its value to understanding the case as a whole is substantial
45
What are two ways hearsay may be adduced with respect to a testifying witness?
1) Proof of previously **inconsistent** statements;
2) Proof of prior **consistent** statements, rebutting suggestion of pre-fabrication.
3) Statements used to **refresh** **witness**' memory when cross-examined.
46
What are six safeguard when admitting hearsay?
1) Inadmissible due to **witness' incapacity;**
2) Challenging W's **credibility** by adducing information undermining it (ie. convictions);
* note - likely require court's permission as non-defendant bad character evidence.
3) **Unconvincing** hearsay - due to its importance, renders any possible convinction unsafe.
4) **Unnecessary** - time-wasted
5) **Fairness** (S.78 PACE) and common law rule (probabtive value outweighed by its prejudicial effects).
6) **Jury direction** pointing to the limitations of any hearsay evidence where jury has been unable to see or hear witness, or where it has not been subjected to cross-examination.
47
Evidence of what prior offences can be admissible as **relevant to important matter in issue**?
All offences of the same kind, i.e. that demonstrate a similar pattern/mode of offending (ie. signature)
48
If the **prosecution** wishes to introduce **hearsay evidence,** within how long of entry of a not guilty plea must notice be served in (1) the Magistrates Court and (2) the Crown Court?
1. Magistrates Court: as soon as praticable and **no later than 20 business days.**
2. Crown Court: no later than **10 business days.**
*Defence must object within 10 business days*
49
If a defendant wishes to admit **hearsay evidence,** within how long of entry of a not guilty plea must notice be served?
both Mags and C.C - as soon as practicable
50
Where a **co-defendant** wishes to introduce hearsay, when must such notice be served?
as soon as practicable, and in any case, no later than 10 business days after initial disclosure from prosecution.
51
In what instance might bad character evidence showing a propensity to be **untruthful**?
1) If untruthfulness is part of the offence (ie. fraud offences), *or*
2) Defendant plead not guilty to an offence they were subsequently convicted of.
52
What is the higher threshold for bad character evidence to be admissible due to a matter in issue between co-defendants?
It must have **substantial probative value**, not just be relevant
53
If the prosecution wishes to introduce **bad character evidence,** within how long of entry of a not guilty plea must notice be served in (1) the Magistrates Court and (2) the Crown Court?
1. Magistrates Court: 20 business days after guilty plea
2. Crown Court: 10 business days
*Defence must object within 10 business days*
54
To which two grounds does a special procedure apply?
1. Important matter in issue between P and D
2. D attacked another's character
55
For adverse inference, what is a special warning, and when is it relevant?
relevant for adverse inferences drawn under s.36 and s.37
Suspect must be told in 'ordinary' language about:
- what offence is being investigated;
- fact they are made to account for;
- fact may be due to them partaking in offence;
- court may draw adverse inference if they fail to account for this fact; AND
- record is being made of interview that can be admitted as evidence against them at trial.
56
What is the special procedure for admission when the ground for admitting bad character evidence is either *important matter in issue between prosecution and defence* (s.101(d))
or *defendant attacked another's character* (s.101(g))?
**If the defendant makes an application to exclude**, the court must not admit it if it appears that admitting the evidence would have **such** an adverse effect on the fairness of the proceedings, that they must not do so
57
What is the similar general exclusion which applies to all seven grounds for admitting bad character evidence?
The court ***may* refuse to admit** evidence for the same reason: if it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings, that they must not do so
58
Therefore, what is the difference between the *adverse effect* relief available **generally**, and in the two specific instances of important matter in issue between prosecution and defence
or defendant attacked another's character?
**Generally:** When there would be an adverse effect on the fairness of the proceedings, court **may** refuse to admit the evidence
**Two specific grounds:** When there would be an adverse effect on the fairness of the proceedings, court **must** refuse to admit the evidence, if D applies
59
What is the propensity direction and what is the credibility direction?
**Propensity direction**: Person of good character is less likely to have committed an offence.
**Credibility direction**: Person of good character is more likely to be credible when they assert their innocence before of during trial.
60
In what additional situation might a defendant receive a good character direction?
If they have previous convictions, but they are old, minor, or not related to the current charge
61
Even if the defendant has no previous convictions, in what situation will a good character direction probably not be available?
If there is other bad character evidence upon which the prosecution relies
62
If there is other bad character evidence upon which the prosecution does not seek to rely, can a good character direction be given?
The judge has discretion
63
Common law exceptions for hearsay evidence
- public information
- evidence of reputation - if used only to establish character, and not that a matter is true.
- Res gestate - statement made spontaneously by victim during crime (ie. what are your hands doing there pervert?)
- confessions
- statements in furtherance of joint enterprise (ie. one defendant's statement can be used against all others)
- expert evidence (as in disputes)
- Statements by agents (ie. D's solicitor)
64
Where a witness is unavailable to testify orally at trial, will their statement be inadmissible as hearsay?
NO - one of the statutory exceptions.
- where W is known but unfit/unavailable, then statement is prima facie admissible (≠ hearsay)
65
How must the judge direct the jury where the ID evidence is of poor quality, but supported by additional prosecution evidence?
Give **Turnbull warning:**
1) Reason for warning: may convict someone by mistake.
2) Direct jury to examine circumstances in which identification was made and take into account difficulties in identification.
3) Remind jury of weakness in ID evidence - go through ADVOKATE.
66
What general power does the court have to exclude bad character evidence?
S.101(3) CJA - if court takes the view that admitting bad character evidence would have "such an adverse effect on fairness of proceeding," it **must** exclude it.
**Relevant** where prosecution applies to admit bad character evidence *under (i) propensity gateway (101(1)(d)) or (ii) where D attacks another person's character (g)*.
- revised form of s.78
67
What bad character gateway is **available only to the prosecution**?
Bad character to **correct a false impression**(s.101(1)(f))
68
What evidence of a defendant's bad character is prima facie admissible without satisfying any of the gateways?
Evidence relates to either:
(1) alleged facts of the offence with which the defendant is charged;
(2) evidence of **misconduct connected** to investigation/prosecution related to current offence.
69
What are two offences falling under the same category by order of the SoS when considering gateway s.101(1)(d) to admit bad character evidence?
theft offences and sexual offences against children under 16
70
When might a court refuse admissibility of bad character evidence under s.101(1)(d)?
where it is satisfied that given the length of conviction, it would be unjust to.
71
What are the three questions the court will follow when deciding whether to admit bad character evidence under gateways gateways (d) and (g)?
1) Does the history of conviction show a propensity to commit offences of the kind charged?
2) Does the propensity make it more likely that the defendant committed the offence charged?
3) In any event, is it unjust to rely on the conviction of the same description/category?
72
What disclosure duties is the police subjected to at the investigative stage?
1) duty to follow all reasonable reasonable inquires whether or not the point to the defendant. Remain fair and objective.
2) duty to inspect, view, listen, and search for all relevant material.
73
What are the additional requirements
when adducing documents prepared in criminal proceedings under the *business document* gateway for hearsay?
Beyond general requirements, must also show that either that W is :
(i) unable to testify *or*
(ii) cannot be reasonably expected to have recollection given length of time since information was supplied.
74
As a first step before drawing any adverse inferences, what must the jury be satisfied with?
that the prosecution has a case to answer.
75
In which cases of hearsay is a notice required?
* Business and other documents (s.117)
* Unavailable witness (s.116)
* Interests of justice (s.114)
* Multiple hearsay (s.121)
76
What are the consequences of failing to give a hearsay notice, or doing so late?
1) Evidence is **not admissible** without the court’s permission;
2) Where permission is grant, it may **draw such inferences** as appear proper from the failure to give notice; and take this into **account** when exercising powers as to **costs.**
77
What are the three gateways for admitting **non-defendant bad character** evidence?
1) Important **explanatory** evidence
2) **Substantial** probative value to either context of case as a whole or specific matter in issue;
3) **Agreement** by all parties
78
What type of bad character evidence may be adduced by a defendant under s.101(g), which is not admissible under s.101(d)?
s.101(g) can also be used to illustrate a **propensity to be dishonest**
cf. s.101(d) - only where it shows a propensity to be **untruthful**
