Evidence Flashcards
(27 cards)
What are facts in issue?
Evidence is called by any party in order to prove the ‘facts in issue’. These are the facts that any party needs to prove in order to prove its case.
For the prosecution, the facts in issue are those that are needed to prove the offence charged.
When can an application for dismissal be made?
-only after a D is sent by the magistrates’ court for trial to the Crown Court;
-only after the D has been served with the evidence relating to the offence; and
-only before the D is arraigned
What is the test for dismissing a charge?
‘The judge shall dismiss a charge if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted’.
What is the test for submissions of no case to answer as set out in R v Galbraith (1981)?
- Either, that there is no evidence that a crime has been committed by the D; or
- That there is some evidence before the Court, but it is tenuous or inconsistent in nature:
-Judge must consider whether the evidence, when taken at its highest, is such that the jury could not properly convict upon it. If yes, the case should be dismissed.
What is the definition of hearsay?
Hearsay is defined in s114 & s115 CJA 2003 as a statement made out of Court, that the person who made it intended another to believe, subsequently tendered in evidence, as proof of the matter stated.
What is the general rule regarding hearsay?
The rule against hearsay states that a statement made out of Court may not be presented in evidence as proof of its contents. The general rule is that hearsay is inadmissible which is an example of an exclusionary rule.
What is the three part test in R v Twist (2011) as to whether a communication is hearsay?
- Identify what relevant fact (matter) it is sought to prove.
- Ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises.
- If yes, ask whether it was one of the purposes of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true.
a. If yes, it is hearsay.
b. If no, it is not.
When may hearsay be admissible under the Criminal Justice Act 2003?
Hearsay may be admissible if:
-the witness is unavailable (dead, unfit, outside UK, cannot be found or in fear) (s116)
-it is a business document (s117), however the court has the discretion to exclude if it is satisfied that the statement’s reliability is doubtful (s117)
-it is in the interests of justice to admit it (s114)
What is the res gestae rule and when is it admissible?
A statement is admissible as evidence of any matter stated if:
a) The statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded
b) The statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or
c) The statement relates to a physical sensation or a mental state
What are examples of res gestae evidence?
-statements made by a witness who is so emotionally overwhelmed by the event that its unlikely they could distort or concoct the statement
-999 calls
-statements made by the complainant shortly after the incident captured on police body-worn cameras
What is the definition of bad character?
S98 CJA 2003: evidence of, or a disposition towards misconduct. Misconduct is defined as the commission of an offence or other reprehensible behaviour. Examples include previous convictions, cautions, acquittals and agreed facts.
What are the seven gateways through which evidence of the bad character of a D can become admissible?
Set out in s101(1)(a-g) CJA 2003:
a) All parties agree-no leave required
b) D chooses to adduce evidence e.g. come clean about an old conviction, no leave required
c) Important explanatory evidence: leave required
d) ‘done it before’: prosecution evidence only, R v Hanson (2005) sets out questions to be considered-leave required
d) Relevant to an important matter in issue between D and prosecution: substantial probative value-leave required
f) Correcting a false impression-leave is required
g) D attacks another’s character: triggered when an attack is made on any person-leave required
What questions should be considered when an application is made under the s101(1)(d) ‘done it before’ gateway for bad character evidence
R v Hanson (2005):
- Does the D’s history establish a propensity to commit offences of the kind charged?
- Does the propensity make it more likely that the D committed the offence?
- Would it be unjust to rely on the evidence where the previous offences are of the same description/category?
- Would it be unfair if the evidence were to be admitted?
What are the key exclusions/safeguards in relation to D bad character evidence?
S78 PACE 1984-adverse effect on the fairness of the proceedings that it ought not to be admitted.
S101(1)(d) & S103(3) CJA 2003-exclude evidence of the commission by the D of an offence of the same type by reason of time elapsed or it would be unjust to admit it.
S107 CJA 2003-Court has discretion to stop case where it is satisfied at any time after close of prosecution case that evidence is contaminated and that contamination would make conviction unsafe.
What are the three gateways through which evidence of the bad character of a non-D can become admissible?
S100 CJA 2003:
- Important explanatory evidence: needed to help the Court/jury understand other evidence in the case-leave required)
- Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole: recent misconduct holds greater weight-leave required
- Agreement of the parties: no leave required
What are the time limits on D bad character prosecution evidence?
Magistrates’ court-not more than 20 business days after the D pleads not guilty
Crown Court-not more than 10 business days after the D pleads not guilty
What are the time limits on Co-D bad character evidence?
As soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based.
What are the time limits on non-D bad character evidence?
As soon as reasonably practicable; and
In any event not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant).
When should a Turnbull direction be given?
When the case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification.
What are the three key elements of the Turnbull warning?
The Judge should:
-instruct the jury as to the reason for the need for such a warning
-direct the jury to examine the circumstances in which the identification by each witness came to be made
-remind the jury of any specific weaknesses in the identification evidence
Outline ADVOKATE in relation to the strengths and weaknesses of visual identification evidence.
A-amount of time under observation
D-distance
V-visibility
O-obstruction
K-known or seen before
A-any reason to remember
T-time lapse
E-error or material discrepancy
What is a confession?
S82(1) PACE 1984-a confession includes 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.
What are the two ways in which to challenge a confession under PACE 1984?
Make an application to challenge/exclude the confession evidence under S76 and S78 PACE 1984.
Outline the test for excluding a confession under S76 PACE 1984.
S76(a): ‘oppression’-if the confession was obtained by oppression, the Court shall not allow it unless the prosecution prove beyond reasonable doubt it was not.
S76(b): ‘unreliability’-if the confession was was obtained by anything said or done which was likely to render unreliable any confession made in consequence thereof, the Court shall not allow it unless the prosecution prove beyond reasonable doubt it was not.
