Topic 7 - Evidence Flashcards
(104 cards)
1
Q
What are the basic principles of evidence?
A
Commonly used language and fundamental themes in evidence
Considerations include facts in issue, types of evidence, admissibility, relevance, and weight of evidence.
2
Q
What are ‘facts in issue’?
A
Facts that any party needs to prove in order to prove its case.
3
Q
What must the prosecution prove in a theft case?
A
- Defendant appropriated property
- Belonging to another
- Dishonestly
- Intention to permanently deprive another of it.
4
Q
What does it mean to prove a fact by means other than calling live evidence?
A
Establishing evidence through agreements or judicial notice.
5
Q
What is Criminal Justice Act 1967, s.10?
A
Allows advocates to agree on facts, which are then reduced to writing.
6
Q
What does ‘judicial notice’ mean?
A
A judge or jury accepts a fact as true without needing formal proof.
7
Q
What are the types of evidence?
A
- Oral evidence
- Written form
- Real evidence
- Direct evidence
- Circumstantial evidence
- A view.
8
Q
Define ‘real evidence’.
A
Objects and things brought to court for inspection.
9
Q
What is the difference between direct evidence and circumstantial evidence?
A
- Direct evidence: first-hand accounts
- Circumstantial evidence: inference-based evidence.
10
Q
What is a ‘view’ in a legal context?
A
When juries visit a crime scene or inspect an object not brought to court.
11
Q
What is the first principle for evidence to be admissible?
A
Evidence must be relevant.
12
Q
What does ‘relevance’ mean in terms of evidence?
A
Evidence must be logically probative of a fact in issue.
13
Q
What are exclusionary rules?
A
Rules preventing the admission of relevant evidence to protect trial fairness.
14
Q
What is ‘weight’ in the context of evidence?
A
The strength, reliability, and value of evidence.
15
Q
Who determines the facts in a case?
A
The tribunal of fact.
16
Q
Who determines the law in a case?
A
The tribunal of law.
17
Q
What is the legal burden in a criminal case?
A
The obligation to prove an element of the case to a prescribed standard.
18
Q
What is the standard of proof for the prosecution?
A
Beyond reasonable doubt.
19
Q
What is the evidential burden?
A
The obligation to raise some evidence before an issue can be argued before the jury.
20
Q
Does challenging the prosecution case create a burden on the defence?
A
No.
21
Q
What is the standard for the defence to prove a claim of insanity?
A
Balance of probabilities.
22
Q
What happens if the defence asserts a lack of mens rea due to insanity?
A
The defence must prove it.
23
Q
What is the role of the judge regarding evidential burden?
A
Ensure some evidence has been raised before jury consideration.
24
Q
In a magistrates’ court, who plays the roles of tribunal of fact and law?
A
The same person or people.
25
How does the role of the tribunal differ in Crown Court versus magistrates' court?
In Crown Court, judge and jury have distinct roles; in magistrates' court, they are the same.
26
What must magistrates do if they rule a confession inadmissible?
Put the confession out of their mind.
27
What is the evidential burden?
The burden to raise some evidence to satisfy the judge that the matter should be argued before the jury
## Footnote
This burden is distinct from the legal burden required to prove a fact in issue.
28
Does challenging the prosecution case create a burden on the defence?
No, simply challenging the prosecution does not create any burden on the defence.
29
In which cases does the law put a burden on the defence?
* Insanity
* Diminished responsibility
## Footnote
These are examples where an active defence is being run.
30
What is the relationship between legal burden and evidential burden in a case?
If you have a legal burden to prove a fact in issue, you have the evidential burden of passing the judge with the same evidence.
31
What is a notable exception where legal and evidential burdens become detached?
Self-defence is a notable exception where the judge requires some evidence to be raised before the jury without a standard of proof required.
32
What happens if the defence concedes a fact in issue?
The evidential burden to adduce evidence is lifted.
33
What is required for the judge to approve the prosecution to continue its case?
The judge must check that the evidence is sufficient to raise a case on that fact.
34
What is an example of a case where the prosecution failed to discharge the evidential burden?
A burglary case where no evidence was called to show that the defendant was a trespasser.
35
In a murder case involving insanity, what must the defence prove?
The defence must prove the insanity on a balance of probabilities.
36
What is the evidential burden regarding the self-defence claim?
The defence must raise self-defence and provide sufficient evidence to pass the judge.
37
What must the prosecution prove in a self-defence case?
The prosecution must prove that the force used by the defendant was unlawful.
38
What is the prosecution's obligation if a defence of duress is raised?
The prosecution must disprove the defence of duress beyond a reasonable doubt.
39
What does the judge need to instruct the jury regarding a raised alibi?
The jury must be instructed that it is not the defence's burden to prove the alibi.
40
What is the first question in the process for the consideration of admissibility of evidence?
Is the evidence relevant?
41
What happens if evidence is found to be irrelevant?
The evidence is inadmissible.
42
What is an inclusionary rule?
A rule that allows otherwise inadmissible evidence to be admitted if it meets specific criteria.
43
What is an example of a situation where an inclusionary rule applies?
Evidence of bad character can be admitted under certain conditions.
44
What is the importance of s.78 PACE?
It allows courts to refuse to allow evidence if proper procedures were not followed in gathering that evidence.
45
What is meant by exclusionary discretion?
The final filter before evidence is admitted, ensuring fairness in the proceedings.
46
What does the exclusionary rule in PACE allow courts to do?
It allows courts to find evidence inadmissible if PACE procedures are not followed.
## Footnote
This is a safeguard for prosecution evidence collected inappropriately.
47
Under what circumstances can a court refuse to allow evidence according to s.78(1) PACE?
If admitting the evidence would have an adverse effect on the fairness of the proceedings.
## Footnote
The court considers the circumstances in which the evidence was obtained.
48
List examples of evidence that could be considered 'wrongly' obtained according to PACE.
* Searches without proper authority
* Interviewing witnesses without proper caution
* Denying access to a solicitor
* Oppression or tricks in interview
* Not following proper procedures in identification cases
## Footnote
These examples illustrate breaches of PACE codes.
49
What must breaches of PACE be in order to potentially trigger exclusion of evidence under s.78?
Significant and substantial.
## Footnote
A breach alone does not guarantee exclusion; the impact on trial fairness is crucial.
50
What is the common law power regarding the exclusion of evidence?
It allows exclusion when the probative value of evidence is outweighed by its prejudicial effect.
## Footnote
This is a broader provision compared to s.78 PACE.
51
True or False: Section 78 PACE can be used to exclude evidence that a defendant seeks to admit.
False.
## Footnote
Section 78 only applies to evidence the prosecution proposes to rely on.
52
What is an application for dismissal in a criminal case?
A pre-trial application to have charges against a defendant dismissed.
## Footnote
It can only be made after certain procedural steps have been completed.
53
What is the test for dismissing a charge according to Schedule 3 para 2(2) CDA?
The evidence against the applicant would not be sufficient for a proper conviction.
## Footnote
This test is similar to a submission of no case to answer.
54
What principles are applied in a submission of no case to answer according to R v Galbraith?
* No evidence that the crime has been committed
* Prosecution evidence is too weak for conviction
## Footnote
The judge assesses the strength of the evidence presented.
55
What is the significance of a 'half-time submission'?
It refers to a submission of no case to answer made after the prosecution case but before the defense case.
## Footnote
This allows for a complete consideration of the prosecution's evidence.
56
What is a section 78 application concerned with?
The fundamental concept of fairness in excluding prosecution evidence.
## Footnote
It is the principal means for the defense to seek exclusion.
57
What can result from an abuse of process application?
Staying proceedings due to fundamental unfairness.
## Footnote
This application addresses serious issues that could undermine the trial.
58
List circumstances where a stay of proceedings might be granted as an abuse of process.
* Accused cannot receive a fair hearing
* Trial would offend the court's sense of justice
* Deliberate delay by prosecution
* Police misconduct undermining public confidence
## Footnote
These considerations protect the integrity of the criminal justice system.
59
True or False: Delay in prosecution can never amount to an abuse of process.
False.
## Footnote
Deliberate or inordinate delay can be sufficient for an abuse of process application.
60
What constitutes an abuse of process in court?
Manipulation or misuse of the court process to deprive a defendant of legal protections
## Footnote
This includes deliberate delays by the prosecution to gain tactical advantages.
61
What does a successful application to stay proceedings as an abuse of process mean for the prosecution case?
The prosecution case will not be able to proceed, but it is not the same as a 'not guilty' verdict
## Footnote
The defendant's record will not be tarnished.
62
What must the defense prove in an abuse of process application?
Abuse of process on the balance of probabilities.
63
In which court are abuse of process applications mainly dealt with?
Crown Court.
64
What does Section 82(3) of PACE state regarding evidence exclusion?
It preserves the common law discretion of courts to exclude evidence at their discretion.
65
What is the key consideration for a court when deciding to exclude evidence under s.78 PACE?
Whether the admission of the evidence would have an adverse effect on the fairness of the proceedings.
66
True or False: The discretion to exclude evidence under common law applies to both prosecution and defense evidence.
False.
67
What are the principal ways to exclude evidence or seek to stop a prosecution case?
* Applications for dismissal
* Submissions of no case to answer
* Applications to exclude evidence under s.78 PACE
* Applications to exclude confessions under s.76 PACE
* Applications under preserved common law provisions – s.82(3) PACE
* Abuse of process applications.
68
How does Section 78 PACE relate to the Codes of Practice?
Breaches of the Codes can be used as a basis for seeking exclusion under s.78.
69
What is the significance of the PACE Codes of Practice?
They set out procedures that police must follow when exercising their powers.
70
What must police inform detained suspects according to Code C (detention, treatment and questioning of suspects)?
* Their right to consult privately with a solicitor
* Their right to have someone informed of their arrest
* Their right to consult the Codes of Practice.
71
What does Paragraph 10.1 of Code C require?
A person must be cautioned before any questions about the offence are posed.
72
What is the role of an appropriate adult in interviews with juveniles or vulnerable individuals?
To provide advice, observe the interview, and assist with communication.
73
True or False: Evidence obtained irregularly is automatically inadmissible.
False.
74
What is the test for determining the impact of police conduct on fairness in proceedings?
Whether the conduct led to unfairness or injustice.
75
What does R v Ryan state about breaches of the Codes of Practice?
Not every breach will lead to exclusion; the effect of the breach is key.
76
When can a section 78 application be made?
* Before the trial
* At the commencement of the trial
* Just prior to the prosecution seeking to admit the evidence
77
What should happen if a s.78 application would fatally weaken the prosecution's case?
A judge will often want that argument to take place at a pre-trial hearing or at the commencement of the trial.
78
What is required in the Defence Statement according to s.6A(1)(d) CPIA 1996?
The defence should include any points of law and authorities relied upon.
79
What is a voir dire?
A trial 'on the voir dire' is a mini-trial to resolve factual disputes before deciding on the admissibility of evidence.
80
What does the burden and standard of proof require in a voir dire?
The judge must be satisfied of the factual position beyond reasonable doubt.
81
What are the Turnbull Guidelines?
* Guidelines for judges on handling identification evidence
* Established in R v Turnbull [1977] QB 224
82
When should a Turnbull direction be given?
When the case against the accused depends 'wholly or substantially' on the correctness of visual identification.
83
What are the three key elements of a Turnbull warning?
* Instruct the jury on the need for caution
* Direct the jury to examine circumstances of identification
* Remind the jury of weaknesses in identification evidence
84
What types of evidence can support identification?
* Scientific evidence
* Multiple identifications by different witnesses
* The accused's bad character
* The accused's silence on interview
* The accused's admissions
85
What questions must judges answer regarding identification evidence?
* What is the quality of the identification evidence?
* Is there other evidence to support the correctness of the identification?
86
What does 'dock identification' refer to?
Identification of the defendant by a witness for the first time in court.
87
What is the concern regarding dock identification?
It is undesirable as it may lead to prejudicial assumptions by the witness.
88
What are the pre-conditions for identification to be a live issue?
* D disputes the identification evidence
* The identification evidence is the only evidence implicating D
89
What is the role of visual identification evidence in a trial?
It is a common method for proving that the defendant committed the crime.
90
What is the difference between visual identification evidence and other forms of evidence?
Visual identification evidence specifically involves recognizing the suspect, while other evidence does not.
91
What led to the introduction of safeguards in identification evidence?
A series of miscarriages of justice due to inaccurate eyewitness testimony.
92
What does PACE Code D address?
The process adopted by police for identification issues.
93
What is the purpose of PACE Code D?
To protect an innocent suspect from an incorrect identification and to make a successful identification as watertight and 'challenge-proof' as possible
## Footnote
PACE Code D deals with police procedures regarding witness identification of suspects.
94
What identification procedure is often used when identity is in dispute?
VIPER (Video Identification Parade Electronic Recording)
## Footnote
This involves filming the suspect alongside lookalikes and showing the video to witnesses.
95
What must a trial judge determine if a breach of Code D is alleged?
If a breach of Code D has occurred and if there has been any significant prejudice to the accused
## Footnote
A voir dire may be required if evidence surrounding the breach is disputed.
96
What is the remedy for a defendant if there has been a breach of Code D?
To apply to exclude evidence obtained in breach of the code under s.78 PACE 1984
## Footnote
A breach does not automatically lead to exclusion; the judge assesses the impact on fairness.
97
When should a Turnbull direction be given?
When the case against the accused depends 'wholly or substantially' on the correctness of the visual identification
## Footnote
A robust direction is required, especially with hearsay evidence.
98
What should the trial judge warn the jury about in identification cases?
The special need for caution before convicting based on the correctness of the identification
## Footnote
The judge should remind the jury that mistaken witnesses can be convincing.
99
What does the mnemonic ADVOKATE stand for in assessing 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
## Footnote
This mnemonic helps evaluate the quality of identification evidence.
100
What is the significance of dock identification?
It is exceptional and rare, and can be highly prejudicial to the defendant
## Footnote
A witness may assume the defendant is guilty simply because they are in the dock.
101
What must be established for identification to be considered a live issue?
* D disputes the identification evidence
* Identification evidence is wholly or substantially the only evidence implicating D
## Footnote
These conditions must be met to determine if identification is a key issue in the trial.
102
What factors does a judge consider when assessing the quality of identification evidence?
* Lighting
* Distance
* Length of observation
* Witness qualities (e.g., eyesight)
## Footnote
These factors help determine if the identification evidence is sufficient for the jury.
103
What can support the correctness of identification evidence?
* Scientific evidence (e.g., footwear, facial mapping)
* Multiple identifications by different witnesses
* Accused's bad character or previous convictions
* Accused's silence on interview
* Accused's admissions
* Lies accompanied by a Lucas direction
## Footnote
The trial judge should identify supporting evidence to the jury.
104
What happens if the judge determines the quality of identification evidence is poor?
The judge should withdraw the case from the jury and direct an acquittal unless there is supporting evidence
## Footnote
In cases of weak identification, supporting evidence may allow the jury to assess the value of the evidence.
