Evidence law

Question 1

What is real evidence?

Answer 1

Physical things e.g. a knife
Referred to as productions in court
Need witnesses to speak alongside the real evidence

Question 2

What is documentary evidence?

Answer 2

A statement by doctors etc..

Question 3

What is oral evidence?

Answer 3

Witnesses

Judicial of oral evidence in Scotland

Question 4

What is the definition of relevance?

Answer 4

Will the evidence be relevant enough to prove if he is guilty of the issue?

Question 5

What is the definition of admissibility?

Answer 5

If the evidence can be allowed into court

Question 6

Why is there an inquisitorial system?

Answer 6

Fair procedure

to ensure that the accused can test the evidence against them.

Question 7

What is facta probanda?

Answer 7

Facts to be proved - this is where essential evidence is required to prove the accused committed the crime they are charged with.

Question 8

What is meant by facta probationis?

Answer 8

Known as facts of the proof - Evidentual facts which assist in proving the facta probanda.

Question 9

What is meant by corroboration?

Answer 9

This is where two independent sources of evidence are needed to back up each other in proving the essential facts.

Question 10

What is the “Moorov Doctrine”?

Answer 10

Established in the case of Moorov v HM Advocate 1930.

• Where the accused’s course of conduct is similar in three ways (time, character and circumstance)
• Self- Corroboration is allowed of there is sufficient interrelation of time, character and circumstacne
• In this case 21 women telling of assault and sexual assault which corroborated each other
• This case explained that evidence from one charge could corroborate another charge providing it satisfied time, character and circumstance.

Question 11

What is stated in s6(2) of ECHR?

Answer 11

Every person charged with a criminal offence will be innocent until proven guilty.

Question 12

Which types of witnesses are seen as competent?

Answer 12

ALL witnessess are allowed to testify unless they are proved not competent to do so

Question 13

When would evidence have been improperly obtained?

Answer 13

Where it has been obtained unlawfully, illegally or irregulary.

Question 14

What are a persons right to a lawyer?

Answer 14

Cadder v HMA 2011 involved a case where an accused had no access to legal advice prior to police questioning.
It was held in this case that under the ECHR all accused persons must have the option of a lawyer before police questioning.

Question 15

If a person suffered mental disorder when committing a crime are they liable?

Answer 15

No, under s51A of the Criminal Procedure (Scotland) Act 1995 a person is not criminally liable for an offence if at the time of conduct the person was, by reason of mental disorder, unable to understand the wrongfulness or nature of their conduct.
They must establish this on the balance of probabilities that burden is not on the Crown.

Question 16

Why is character evidence usually inadmissable?

Answer 16

Due to the fact it is deemed as irrelevant

Question 17

Will a jury be told of an accused person’s previous convictions prior to trial? (Character evidence)

Answer 17

No, under s101(1) of the Criminal Procedure (Scotland) Act 1995 - a jury shall not be given information as to an accused persons previous convictions, nor shall these previous convictions be mentioned in the presence of the jury, before the verdict is returned.

Question 18

Will a judge know of any previous convictions where he/she is the master of the facts? (Character evidence)

Answer 18

No, under s166(3) previous convictions shall not be laid before the judge until he is satisfied that a charge has been proved.

Question 19

What is hearsay?

Answer 19

Where a person testifies something they did not actually witness or hear themselves. Hearsay is generally inadmissable if a person has not actually witnessed or heard something themselves.

Question 20

What exceptions allow hearsay to be admissable?

Answer 20

• In Identification evidence where a witness may be asked to pick the accused from a line of people, the victim/accused may be unsure.
• Res Gestae - Second hand statements considered trustworthy for the purpose of admission of evidence.
• Criminal Procedure (Scotland) Act 1995 s259

Question 21

Who are vulnerable witnesses and may gain privilege or public interest immunities?

Answer 21

Criminal Procedure (Scotland) Act 1995 s271 - all child witnesses and some adult witnesses

Question 22

What is strict liability?

Answer 22

When the crown do not have to prove a mens rea, the crown only needs to establish actus reus.

Question 23

What is vicarious liability?

Answer 23

Where someone has been convicted of an offence which has been committed by someone else.

Question 24

What is an alibi?

Answer 24

That the accused was not at the place libelled in the charge at the time of the crime.

Question 25

What is impeach/incrimination?

Answer 25

When the accused states 'it was not be but it was this other person'

Question 26

What is non-age?

Answer 26

Criminal Procedure (Scotland) Act 1995 s41A: (1) : A child under the age of 12 years may not be prosecuted for an offence (2) : A person aged 12 years or more may not be prosecuted for an offence which was committed at a time when the person was under the age of 12 years.

Question 27

What is ignorantia iuris neminem excusat?

Answer 27

An error of law

Question 28

What is an error of fact?

Answer 28

Must generally be genuine and reasonable, and affect the accused person's mens rea

Question 29

What are the three aspects of mental abnormality?

Answer 29

Unfitness for trial Defence of mental disorder Diminished responsibility

Question 30

What does the Criminal Procedure (Scotland) Act 1995 (as amended by the Criminal Justice and Licensing (Scotland) Act 2010) state about unfitness for trial?

Answer 30

Unfitness for trial: s 53F (1) : A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial. (2) In determining whether a person is unfit for trial the court is to have regard to— (a) the ability of the person to— (i) understand the nature of the charge, (ii) understand the requirement to tender a plea to the charge and the effect of such a plea, (iii) understand the purpose of, and follow the course of, the trial, (iv) understand the evidence that may be given against the person, (v) instruct and otherwise communicate with the person’s legal representative, and (b) any other factor which the court considers relevant. (3) The court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge.

Question 31

What does the Criminal Procedure (Scotland) Act 1995 (as amended by the Criminal Justice and Licensing (Scotland) Act 2010) state about people with mental disorders?

Answer 31

Criminal responsibility of persons with mental disorder: s 51A (1) A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. (2) But a person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct. (3) The defence set out in subsection (1) is a special defence. (4) The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities. (5) In this section, “conduct” includes acts and omissions.

Question 32

What does the Criminal Procedure (Scotland) Act 1995 (as amended by the Criminal Justice and Licensing (Scotland) Act 2010) state about diminished responsibility?

Answer 32

Diminished responsibility: s 51B (1) : A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind. (2) For the avoidance of doubt, the reference in subsection (1) to abnormality of mind includes mental disorder. (3) The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself— (a) constitute abnormality of mind for the purposes of subsection (1), or (b) prevent such abnormality from being established for those purposes. (4) It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied. (5) In this section, “conduct” includes acts and omissions.

Question 33

How does the court deal with voluntary intoxication?

Answer 33

Criminal Justice and Licensing (Scotland) Act 2010, s 26 (1) Subsection (2) applies in relation to an offender who was, at the time of the offence, under the influence of alcohol as a result of having voluntarily consumed alcohol. (2) A court, in sentencing the offender in respect of the offence, must not take that fact into account by way of mitigation.

Question 34

What is Involuntary intoxication and automatism?

Answer 34

When the accused hasn't committed the crime while they have voluntary became intoxicated - someone else has intoxicated them.

Question 35

What is coercion?

Answer 35

Accused must show that they only did this act to avoid serious injury or death. Must be compelled to act by a human source. Has to be an immediate threat. Has to be the lesser of two evils.

Question 36

What is necessity?

Answer 36

Natural forces or circumstances lead to you breaking the law. Must only be two choices: break the law or you suffer more serious consequences. Some authors have said necessity justifies conduct, sometimes it is better than it would be if you took the other option. While other authors state that it is simply just an excuse.

Question 37

What is self defence?

Answer 37

When you have been threatened and have too commit an offence in order to protect yourself.

Question 38

What is provocation?

Answer 38

When an act that someone else has done has provoked you to commit the crime. Must be an immediate reaction.