Evidence - Basic Principles / Legal & Evidential Burden Flashcards
(18 cards)
What are ‘facts in issue’ in criminal trials?
They are the facts a party must prove to establish their case.
For the prosecution, they are the ingredients of the offence charged.
What are three ways a fact can be proven without calling live evidence?
- Agreeing a witness statement as true
- Agreeing a fact between parties
- Judicial notice – facts generally known or verifiable
What is judicial notice and who may take it?
A judge (not a jury) may take judicial notice of:
- Generally known facts; or
- Facts easily verified on enquiry (e.g. map locations)
Jurors must not rely on personal knowledge.
What are the main types of evidence in criminal law?
- Oral evidence
- Written statements (s.9 & s.10 CJA 1967)
- Real evidence (physical items)
- Direct evidence (firsthand account)
- Circumstantial evidence (indirect inference)
- A view (jury inspects scene/object)
What is the test for relevance of evidence?
Evidence is relevant if it is logically probative of a fact in issue — i.e. if it tends to prove or disprove a fact that must be decided.
What did R v Usayi [2017] say about relevance?
Evidence that lacks sufficient bearing on the issues should not be admitted, regardless of hearsay rules — it must be meaningfully relevant.
What are exclusionary rules of evidence?
Even if relevant, evidence may be excluded if:
- Admitting it would be unfair (e.g. obtained illegally)
- The evidence has low probative value and high prejudice
What is the difference between admissibility and weight of evidence?
- Admissibility: Whether evidence is allowed
- Weight: The value or reliability of admitted evidence (decided by jury)
Who are the ‘tribunal of fact’ and ‘tribunal of law’ in criminal cases?
- Crown Court: Jury = fact, Judge = law
- Magistrates’ Court: Magistrates/DJ = both fact and law
Can a judge remove a defence like self-defence from jury consideration?
Yes — if the facts cannot support the defence in law, the judge may direct the jury to reject it. But the judge cannot strike it out entirely.
What is the prosecution’s legal burden and standard of proof?
To prove all elements of the offence beyond reasonable doubt (i.e. so the jury is sure).
When does the defence bear a legal burden?
Only in specific defences such as insanity. The standard is the balance of probabilities.
What is the evidential burden?
To raise some evidence on an issue so that the judge permits the jury to consider it. It is a threshold requirement.
Does asserting innocence create a burden on the defence?
No. Simply challenging the prosecution case or making positive assertions (e.g. “I wasn’t there”) does not create a legal or evidential burden.
How does the burden apply in self-defence cases?
The defence must raise some evidence of self-defence. Once raised, the prosecution must disprove self-defence beyond reasonable doubt.
What happens if the prosecution fails to satisfy the evidential burden?
The judge must remove the issue from the jury (e.g. in burglary, no evidence of trespass = case dismissed).
What is the Galbraith test?
Used in no case to answer submissions. The judge must stop the case if:
(a) There is no evidence on which a jury could convict, or
(b) Evidence is so weak, no jury could convict properly on it
In a defence of insanity, who has the burden of proof and what is the standard?
The defendant, on the balance of probabilities. D must also raise evidence to satisfy the judge.
