Identification Evidence Flashcards
(14 cards)
What is the legal standard for anything the defence has to prove?
On the balance of probabilities
What is the evidential burden?
Burden to raise some evidence to satisfy the judge that the matter should be argued before the jury
What is the standard position in terms of the legal and evidential burden?
They tend to come together - so if someone has the legal burden, they also must raise evidence
What is a common instance in which the legal and evidential burden become detached?
Self defence
Defence must raise some evidence to pass the judge that the defendant did act in self-defence
if judge is happy, Prosecution knows that to prove the use of force was lawful it now must disprove self-defence
How does the legal and evidential burden operate for duress and alibi?
If defence raise an issue of live alibi, prosecution must disprove this beyond a reasonable doubt.
When should a judge give a Turnbull direction to a jury?
When the facts of a case depend wholly or substantially on the correctness of the visual identification.
What is a Turnbull direction?
Judge should warn the jury of the special need for caution when convicting based on the correctness of an identification, particularly when the defence alleges the identification to be mistaken
What are the three key elements of a special Turnbull warning?
Judge should
1) Instruct the jury as to the reason for such a warning - mistaken witnesses can be convincing
2) Direct the jury to examine the circumstances in which the identification by each witness came to be made
3) Remind the jury of any specific weaknesses in the identification evidence
Aside from a Turnbull direction, what else will a trial judge direct the jury to consider when convicting based on identification?
If there is any other evidence to support the correctness of the identification.
Examples:
Scientific evidence, multiple identifications by different witnesses, bad character, admissions or silence on interview
What mnemonic can be used to assist the judge and jury in considering the quality of any visual evidence?
ADVOKATE
Amount of time under observation
Distance
Visibility
Obstruction
Known or seen before
Any reason to remember
Time lapse
Error or material discrepancy
How is an application to exclude a confession made in the Crown Court?
At the PTPH, the judge will order the defence to serve a skeleton argument in support of a S76/78 application, and the prosecution will have to respond.
When must the defence serve their skeleton argument in advance of a trial? When must the prosecution respond? Magistrates’ Court
Defence serve 10 business days before trial
Prosecution respond 5 business days afterwards.
When in the Magistrates’ Court will the court have a discretion to hear all the evidence and decide on its admissibility at a later stage?
When it is only under S78
Who are the judges in the Crown Court? How should they be addressed?
Circuit Judges - ‘Your Honour’
Recorders ‘Your Honour’
