Flashcards in Real Evidence Deck (22):
What is real evidence?
"Real evidence is evidence which consists not in what is stated to the tribunal of fact but what that tribunal observes of what is produced before it."
So real evidence is physical and it is brought before the court for the proof/trial.
Why is real evidence used?
The reason it is used is to prove some kind of essential fact or draw some kind of important inference from it.
What types of evidence are classified as real evidence?
1) res gestae
2) circumstantial evidence[ Check if all circumstantial evidence is real evidence.] e.g. the accused running from the scene of the crime
3) documentary evidence - nb there is a distinction between the uses documentary evidence can be put to.
⁃ i) If documentary evidence is being brought[ This can include electronic materials which contain information.] in order to prove or have somebody give evidence about the content of that document, then it is given the label documentary evidence.
⁃ ii) If the document is brought to court for the purpose of someone testifying or someone identifying it, then it is classed as a production[ So this is where someone wishes to say something about the physical object itself rather than the content.].
What are the range of types of real evidence?
2) Dental impressions
3) Behaviour of tracker dogs
5) Results of market research survey
6) Blood tests
*Hamilton v HMA 1934
⁃ Shop was broken into and a number of goods were stolen along with money. There was a bottle? which was covered with paper in the shop before the break in. After the break in the wrapper was found removed and there were some fingerprints on the bottle. The accused had his fingerprints taken. At the trial, evidence was given by experts in fingerprint identification. The experts said that the prints on the bottle when compared to the prints that the accused had given were identical in 16 characteristics, and that there had never before been a case where two different people had had identical fingerprints. This was enough to establish that the prints were identical.
⁃ The only other piece of evidence linking the accused to the offence was the fact he lived nearby. On the basis of these two pieces of evidence he was convicted. He appealed against the conviction on the ground it was unsafe to convict on such little evidence.
⁃ The court had to consider the weight of the real evidence of fingerprints. The court held that if fingerprint evidence is believed by the jury or the judge then it constitutes real evidence in the same way that other real evidence would. The value that should be attributed to the fingerprints depends on the reliability of the results of the expert investigation.
⁃ Therefore, on the ground the fingerprints were real evidence and the jury considered it to be credible and reliable on the basis of the experts testimony, the conviction was not overturned.
Hay v HMA 1968
⁃ Murder case. One of the pieces of evidence was a bite mark on the victims breast. The question was whether the bite mark could be used to identify who was the murderer. In the course of the investigations, 29 men who lived nearby gave dental impressions. The police sought a warrant to examine the accused's teeth further.
⁃ The were granted the warrant and eventually the accused was convicted. On the appeal the accused argued that this sort of evidence was not strong enough. The court held that evidence of bite marks and dental impressions of the accused was enough to prove that the accused was the person who committed the crime.
⁃ [Thus, dental impressions are regarded as a completely competent form of real evidence and they can have substantial weight.]
*Patterson v Nixon 1960
There was a housebreaking and a tracker dog was brought to the locus. The dog picked up a scent and was taken to the tenement where the suspect lived. Without hesitation the dog went right to the door of the flat where the suspect lived. Tests were made to confirm the reliability of the dogs sniffing abilities and then the suspect was charged.
⁃ The suspect had admitted being in the area of the locus at the time, and also admitted being dressed and ready to commit a housebreaking, but denied actually having broken into any houses. He was convicted.
⁃ He appealed against the conviction. On appeal, the argument for the appellant was that this kind of evidence was really new and its accuracy was unknown. And since the accused himself had no chance to examine the accuracy of the tests it was argued that this evidence shouldn't have been admitted. Furthermore they argued that even if the evidence was admissible, it wasn't sufficient evidence to convict the accused (they drew a contrast with fingerprint evidence where there was much more knowledge about the reliability of the evidence i.e. that no two people have identical fingerprints, whereas it was uncertain whether more than one person could have the same scent.)
⁃ The Crown argued that in the case of Hamilton (fingerprints) the decision of whether the evidence was reliable was left to the jury, therefore the jury should be able to decide whether they trust the evidence of the tracker dog.
⁃ The court held that there is no general rule that could be laid down and that the value and significance of tracker dog evidence was a question of the circumstances. In this case the evidence suggested that the dog was very reliable and it was to be weighted just like any other form of evidence. [The court also strangely noted that it was common knowledge that people have different scents and it would be a remarkable coincidence if the person who broke in had had the same scent as the appellant - this seems to be unfounded.]
Davidson v HMA 1951
⁃ Suspect had been asked to sign a fingerprint form to verify that these were his prints. He could have refused to sign it but he chose to do so. Later on when he was charged with these offences, he was asked to give handwriting evidence - he was cautioned that giving these samples might result in evidence being used against him in a trial. Nevertheless he complied and gave handwriting samples. He was then convicted.
⁃ On appeal, the argument was that the initial signature that he'd given had been improperly obtained because he hadn't been warned that it might be used for these purposes and thus should have been inadmissible.
⁃ The court held that there was no kind of trick or pressure put upon the accused to give this signature, and since the other samples had been given under caution there was no question of unfairness - so the signatures were admissible and the conviction was sound.
⁃ [So handwriting is real evidence and was clearly given substantial weight since he was convicted.]
Coca Coca v Wm Struthers & Sons 1968
⁃ A Scottish soft drink called Koala Kola. Coca cola was worried people would get this confused with their product. One thing which had to be proved in this case was that it was likely to deceive or cause confusion in the course of trade. The petitioners attempted to do this by tape recording interviews with 225 people living in the west coast of Scotland reading out the name of 5 products written on cards, one of which was koala kola, but none of the cards displayed the words Coca Cola. A surprising number of them read 'Koala Kola' as Coca Cola so this was meant to be evidence that there was potential confusion and deception so it should be held that it infringes Coca Cola's trade mark.
⁃ But the evidence on the other side was led by experts who said that there is no confusion / risk of confusion. They argued that the survey was defective since:
⁃ none of the tapes had been signed or identified (so there was no way of knowing who was involved in the process and no way of cross examining these people)
⁃ it was all done in the homes of the participants (so it wasn't like they were recreating a retail scenario)
⁃ there was no evidence of the education of the participants
⁃ because Coca Cola's name wasn't listed in the 5 products there wasn't really any way of testing whether there would be any confusion because the 2 names weren't presented together as they would be in a retail situation.
⁃ The court held that this evidence doesn't have much weight and the weight of evidence for the experts for Wm Struthers was much more weighty. Thus the interdict was refused and Coca Cola lost.
s 70 of the Law Reform (Miscellaneous Provisions) (S) Act 1990
Under s 70 of the Law Reform (Miscellaneous Provisions) (S) Act 1990 in any civil proceedings to which this section applies, the court is allowed to request the party to provide a sample of blood or other bodily fluid/tissue, and are also required to request the party to consent to the taking of these samples from a child.
⁃ If the person refuses or fails to give consent then the court is allowed to draw adverse inferences that they regard to be appropriate.
⁃ [So this illustrates the sort of compulsory nature of certain kinds of real evidence, since if you fail to comply then the court may draw an adverse inference.]
Similarly under the Criminal Procedure (S) Act 1995 if a police officer has reasonable grounds to suspect that you are committing or have committed an offence, they can require you to provide fingerprints or a mouth swab. And if you've been arrested and detained then these samples can be taken from you using reasonable force as long as somebody in the police force with sufficient authority has authorised it.
What is the best evidence rule?
The best evidence rule requires real evidence to be produced in court[ Because it is regarded as the most reliable and persuasive evidence.] where it is practical to do so but failure to produce real evidence is not fatal where such evidence is not crucial to the case.
⁃ So the best evidence requires that any document which is fundamental to either party must be produced in its original form (but in the absence of the original document, a duplicate may be accepted).
What does the best evidence rule apply to?
⁃ The rules applies to all types of evidence - where possible and practical to bring evidence in in its original state then this should be done.
Furthermore, in criminal proceedings, the best evidence rule requires that any production which the Crown seeks to rely on must be lodged with the court if its absence would be damaging to the accused.
⁃ NB there are other reason why the Crown might not need to take the evidence to court: e.g. the evidence is perishable or too large to take.
McGowan v Belling 1983
⁃ A number of people were injured in a house fire and they raised actions against the manufacturers because of alleged defects in design and manufacture. They also raised proceedings against the electricity board because they had sold the heater to them and had failed to act on complaints about the fact the cable and plug were overheating. The problem here was that the electric heater itself which was alleged to have caused the fire wasn't lodged as a production - it wasn't taken to the court and produced.
⁃ The defenders argument was that if the actual heater wasn't taken to the court then it was impossible to decide with any certainty whether it was the cause of the fire.
⁃ The pursuers had tried to rely on expert evidence to the effect that because of the design of the heater it was very probably that the cable had overheated and caused the fire, rather than by looking at the specific heater. So they looked at a heater of the same type but not the one that probably caused the fire. The objections to this by the defenders were that the inferences made were questionable and the defenders had no chance to look at the heater or examine it. And the real problem was that given that the heater still existed, the court said that there was no good reason why it hadn't been lodged.
⁃ In the absence of this real evidence, the court decided that the oral description of its condition and the expert evidence was inadmissible.
Maciver v Mackenzie 1942
⁃ In this case a man was convicted of taking possession of a shipwreck. He didn't deliver it to the 'receiver of wreck' which he was supposed to do by statute. At the trial itself, the shipwreck was not taken to court but evidence as to its condition was led by the prosecution. So the prosecution were relying on the condition of the wreck at the time but they didn't bring any real evidence to support there argument.
⁃ The accused was convicted and he appealed on the ground that the wreck ought to have been produced on the basis that the prosecutor was bound to produce any article referred to in the complaint unless it was beyond his powers to do so. The question for the court was whether the conviction was unsound because the wreck itself hadn't been brought and the prosecution had relied on evidence of its condition?
⁃ The appeal was refused. The court held that there is no such rule that the prosecutor is obliged to produce real evidence - the only rule is that it is proper practice to produce the article where there is no practical difficulty.
Tudhope v Stewart 1986
Police officers heard a smashing noise in the early hours of the morning in the city centre. They saw a number of young people running away from a shop carrying some clothing. They were stopped and clothes were found to be of the type that were stocked by the shop that had been broken into.
⁃ At the trial the clothing wasn't produced - (so no real evidence of the clothing being brought to court). At the trial, defence cross examined the police officers to the effect that the accused people were the ones carrying the clothing.
⁃ The Sheriff held that there was no case to answer. The Procurator Fiscal appealed this decision. The court held that the test of whether the items had to be produced as real evidence was whether the real evidence in question was essential for proving the case against the approved. In this case since the evidence was being relied upon simply to bring into question the credibility of the police officers, rather than proving an essential part of the case against the accused, it was not deemed to be essential to bring the clothing into the court room.
⁃ [Thus when it comes to the necessity of bringing real evidence to court (in a criminal case), the important question is whether the evidence is essential to prove the case against the caused (if not then it may be okay that it isn't brought to court).]
Macleod v Woodmuir Miners Welfare Society Social Club 1961
⁃ Officers were checking that the labels on alcohol bottles in bars actually showed the correct strength and brand of the alcohol. The officers had taken samples but didn't take the actual bottles from the bars. They discovered that the whisky from one bar was below strength. During the trial the defence argued that the evidence that was provided by the officers who had taken the samples which was oral evidence was secondary - it wasn't the original sample of whisky so it wasn't admissible (the primary evidence was the bottle which had the whisky in it).
⁃ The court held that because the officers were not bound to impound the bottles, and because there was a necessary delay between taking the sample and analysing them, it wasn't practical that they should get the bottle and bring it to produce it before the court. Therefore the oral evidence was competent.
⁃ [So this is another example where the rule of best evidence was not deemed to be essential.]
What is the special statutory provision in relation to biological material in criminal cases?
NB in relation to biological material in criminal cases there is a specific statutory provision (s 276 Criminal Procedure (S) Act 1995).
⁃ s 276(1): " Evidence as to the characteristics and composition of any biological material deriving from human beings or animals shall, in any criminal proceedings, be admissible notwithstanding that neither the material nor a sample of it is lodged as a production[ So there is no need to bring an actual sample of the material to court.
However see subsection (2).].
⁃ (2) A party wishing to lead such evidence as is referred to in subsection (1) above shall, where neither the material nor a sample of it is lodged as a production, make the material or a sample of it available for inspection by the other party[ So if the actual sample of the material is not brought to court, the party wishing to lead such evidence must make it available for inspection by the other party.] unless the material constitutes a hazard to health or has been destroyed in the process of analysis."
When are tapes, films etc admissible as evidence?
Tapes, films, etc are admissible as evidence of a subject in a transient state; transcripts are secondary evidence but may be admissible to supplement primary evidence.[ Look up this in the book!!!]
R v Quinn, Bloom 
⁃ The appellants were proprietors of clubs and were charged with 'keeping a disorderly house'. The prosecutions were based on striptease performances that were happening in these clubs. They were convicted. On appeal, one of the grounds was that one of the main pieces of evidence against them was a film of some of the performances.
⁃ But crucially, this film was not actually of the performances that happened in their clubs - it was a reconstruction made 3 months after the actual strip-teases occurred.
⁃ So even though this was evidence which was basically identical to what was happening within the clubs, it was deemed inadmissible. The court distinguished this film from other types of demonstration that sometimes happen in the courtroom (e.g. someone demonstrating how they punched someone) - these types of reconstructions are admissible because they are done only to illustrate a point and they take place within the courtroom itself. In contrast this film was a reconstruction of the whole scene and since it happened away from the courtroom it was impossible to analyse what happened motion by motion.
Hopes & Lavery v HMA 1960
⁃ The charge was extorting money by threats. During the investigation, one of the victims wore a wire and transmitted the conversation he had with one of the accused to police officers who recorded it. The problem was that the recording wasn't that clear so a stenographer (someone who is trained in shorthand) interpreted the tape and was called to the court to bring evidence and her transcript was brought it.
⁃ The defence objected to the admissibility of this evidence partly because it had been recorded - but also the stenographer had no experience in doing this.
⁃ The court held that (on the point as to whether recorded evidence was admissible) if the conversation had been overheard the evidence would be admissible, so the fact it was obtained by a wire wasn't problematic. The court recognised that the stenographer didn't have any qualifications or experience of doing this so they admitted that her evidence was of doubtful competency but they said that in the circumstances it had been properly admitted.
Lord Advocate's Reference (No 1 of 1983) 1984
The accused was detained on suspicion of being involved in the supply of controlled drugs. His interview with the police was recorded and this included some leading questions and some incriminating answers. At the trial the Crown tried to lead evidence of the transcripts of the interview. The court held that given that they'd been fairly obtained, the fact there was a transcript was not problematic - the evidence was admissible.