Issues in criminal justice

Alice Briggs

P05267215

Issues in Criminal Justice

Law Assignment 2

Denzil has been charged with the murder of Phoebe, aged 17. His defence will be one of complete denial. When interviewed by the police, Denzil admitted the offence; but he now insists that he did so only because the police pretended to have found DNA evidence linking him to the crime. They had no such evidence.

Glass fragments from a window broken at the scene of the crime have been compared with minute glass fragments found embedded in Denzil’s clothing. According to a report prepared by Dr Holmes, a forensic scientist who will be called to testify for the prosecution, the chemical composition and refractive index of glass fragments taken from the crime scene exactly match that of the fragments recovered from Denzil’s clothing. She added that only two percent of all glass used in the UK would match the glass from the crime scene, and concludes that the fragments found on Denzil’s clothing “must beyond reasonable doubt have got there when he broke the window as he killed the deceased”.

Denzil’s wife and mother could each give evidence supporting the prosecution case; but they are reluctant to testify, and will do so ‘only if they have no choice’.

Explain the prosecution’s burden of proof in this case. Deal with both the evidential and the persuasive (legal) burden.

1) The burden of proof is the burden of satisfying the court or jury in a case that certain facts about the case are true. ‘”The burden of producing evidence means that in general the party that cites specific facts for the substantiation of its claim also has the burden of producing the evidence to prove these facts. This burden depends on the substantive law governing the claim.”’ {1}. In a criminal trial, it is the prosecutions job to deal with the burden of proof. However an exception to this rule is if the defendant claims that his/she was legally insane at the point the offence was committed. In this case it is the defendant’s duty to prove. In a jury trial, it is the jury’s duty to decide whether this has been satisfied, this would be at the end of the trial. [1]

The legal burden must be distinguished from the evidential burden. The evidential burden is the duty to produce sufficient evidence to justify certain issues being left for the jury to consider. This means that the prosecution must first prove that the defendant had the actus reus and the mens rea of the crime that he/she is being charged with. And then they have to support their claim with evidence, this is the evidential burden. ‘”It is an obligation that shifts between the parties over the course of the hearing or trial.”’ {2}.It is the judge’s duty in a case to be persuaded by the prosecution and defence that the issue in question is fit for the jury to consider. If however the prosecution are unable to discharge the evidential burden, the judge has the power to rule the defence has ‘no case to answer’ and direct an acquittal. The judge can also refuse to leave the decision to the jury if there is a lack of evidence supporting a defence, such as provocation.

In the case of Denzil, the prosecution must have no flaws in their case against him. However this would be hard to achieve because the police involved within the case pretended to have DNA evidence when they did not, this deception could make it hard for the prosecution to discharge the evidential burden, which could lead the defence to submit that Denzil has ‘no case to answer’. But the prosecution could also rely on the evidence of glass fragments found on Denzil’s person, because this evidence is not tainted and is admissible in the case against him. Because Denzil has not pleaded that he was legally insane at the time the crime was committed it is still left to the prosecution to prove the legal or persuasive burden to the jury. It is up to the prosecution to show to the court and jury that the facts of the case are true. Facts such as that Denzil confessed to the murder of Phoebe, this is also the time in which Dr Holmes the expert witness would be called to the stand to give their knowledge on the glass fragments found on Denzil and at the scene of the crime.

What Standard of proof is required? And what happens if the jury cannot unanimously aggress on a verdict?

2) ‘”Standard of proof is the level of proof required in a legal action to convince the court that a given proposition is true. The degree of proof required depends on the circumstances of the proposition. Typically, there are two types of proof; the balance of probabilities, this is the lowest level, and beyond reasonable doubt, which is the highest level.”’ {2}

The balance of probabilities is also called the “preponderance of evidence” and this is the standard required in civil ...

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What Standard of proof is required? And what happens if the jury cannot unanimously aggress on a verdict?

The balance of probabilities is also called the “preponderance of evidence” and this is the standard required in civil cases. The standard is satisfied if there is then 50% chance that the proposition is true.

Beyond reasonable doubt is the standard required by the prosecution in most criminal cases. This means that the proposition must be proven to the extent that there is no “reasonable doubt” in the mind of a reasonable person. There can still be doubt but only to the extent that it would be “unreasonable” to assume the falsity of the proposition. {2}

In the cases where the legal burden of proof is placed on the defendant, it is of a lower standard than applies when the burden is on the prosecution. The defendant need only establish his defence ‘on the balance of probabilities’- his claim is more likely to be true than not. Where the defendant has only an evidential burden, the standard is even lower. The defendant needs only to point to material which might cause the jury to have a reasonable doubt about his guilt. [1]

In the case of Denzil, because the legal burden isn’t placed on him, it is placed on the prosecution; the lower standard does not apply. The prosecution can establish the defendants guilt on both the balance of probabilities –more likely to be true than not. And prove the defendant that the defendant is guilty of the crime committed beyond reasonable doubt. With establishing his guilt on the balance of probabilities the prosecution can use the glass fragment evidence, they can use this evidence to convince the jury the probability that the glass fragments found at the crime scene where the same as the ones found on the defendant. However this is not conclusive, the defence can argue that the glass fragments did arrive on the defendant by him being at the scene of the crime, however this does not mean that he killed the victim, he could have just broken her window for some other reason, and the defence has to convince the jury of this fact and suspect any reasons for the breaking of the window. But because this case is a criminal case then the standard required should be beyond reasonable doubt.

Should the prosecution be allowed to call evidence as to the admissions made by Denzil? If not, why not?

3) The prosecution should not be permitted to submit the evidence of Denzil’s confession to the murder of Phoebe because the confession was improperly and unfairly obtained. The situation in which the confession was obtained was inappropriate, because Denzil only made his confession under the influence of the police involved in questioning him. The police within the case stated to Denzil that they had found DNA evidence linking him to the murder of Phoebe, under this pressure Denzil then confessed to the police that he had committed the crime, even if he actually hadn’t committed the crime.

Prior to the passing of PACE, it was unclear whether under the common law discretion a judge was entitled to exclude evidence on the ground that it had been obtained by unfair means. Some Court of Appeal dicta did suggest that this was permissible if the prosecution evidence had been obtained by the means of a trick, by misleading the defendant or employing oppressive or unfair means. [2]

From time to time the courts still employ their common law discretion. Ognall J, for instance relied on the common law discretion to exclude some evidence obtained by an under cover police woman in a some what provocative circumstance at the trial of Colin Stagg. [2]

In the case of Thompson, Sinclair and Maver [1995] 2 Cr App R 589, Evans, LJ, addressed the issue of judges possessing the power to exclude any defence evidence in trials involving co-defendants. By a judge intervening in a court case to exclude evidence of one defendant might appear that there is a tipping of the scales in favour of one co-defendant. This is a serious matter, to exclude evidence that the first defendant wishes to call. Inevitably where the co-accused are running cut-throat defences, what is of advantage to defendant one will be of a disadvantage to defendant two. A discretion to exclude a co-defendants evidence could create the impression that the judge, no matter how well intentioned, was stepping into the area, this is undesirable. [2]

In Osman v DPP (1999), the search of Osman was held to be unlawful because the officers searching him did not give their names and station, contrary to PACE requirements. In O’Loughlin v Chief Constable of Essex (1998), the courts held that the entry of a premises to arrest O’Loughlin’s wife for criminal damage was unlawful because under PACE, anyone present on the premises must be given a reason for the entry. However not all cases have gone against the police when obtaining evidence is concerned. In R v Longman (1988), it was held that the police entry of a premises to execute a search warrant for drugs was lawful, although deception had been utilised to gain entry, and upon entering, the police had not identified themselves or showed the warrant.

Relating to Denzil as it has been mentioned his confession should not be allowed to submitted as evidence against him as it was unfairly obtained by the actions of the police who hadn’t followed the codes of PACE, and the confession may be untrue because it was said under pressure. This evidence is inadmissible.

Can Denzil’s wife and/ or his mother be compelled to give evidence against him?

4) The competence of a spouse or civil partner of a defendant is governed by s53 of the 1999 Act. The compellability of a reluctant spouse or partner is governed by PACE 1984, s80. The defendants spouse is now compellable as a witness for his defence (s80 (2)). The spouse can also be compellable in some circumstances for the prosecution against the defendant, but this is only with specified offences. These offences are ones involving a sexual offence, an assault, an injury or threat of injury against another person, where the victim is under the age of 16. {3}

‘The Police and Criminal Evidence Act 1984 (PACE) is an Act of parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers. The aim of the PACE act has always been to establish a balance between the powers of the British police and the rights of members of the public.‘ {4}

The Home Office and the Cabinet Office announced a joint review of the codes of practice, which then came into effect on 31 July 2004. There are eight codes, from A to H.

Code A deals with the powers the police have to stop and search a person without making an arrest. And the need to make a record of this encounter.

Code B deals with the powers the police have to search premises and the seize property.

Code C deals with the detention, treatment and questioning of people.

Code D deals with the methods the police use to identify people in connection with investigations and the maintaining of the records of such people.

Code E deals with the tape recording of interviews in a police station.

Code F deals with the visual recording of interviews; however this isn’t very common to do.

Code G deals with the statutory powers of arrest the police have.

Code H deals with the detention of terrorists or suspects of terrorism. {4}

Relating this to the case of Denzil, this would mean that both Denzil’s wife and mother are competent enough; they are suitable to give evidence against him. However his wife is not permitted to, or she isn’t compellable to give evidence for the prosecution against him because the case does not involve a sexual offence, an assault, injury or threat of an injury. The case is simply murder and spouses are not permitted to give any evidence either for the defence or the prosecution in cases which do not involve an assault or sexual offence.

However the families of a defendant are required to give evidence for the prosecution even if they do not wish to, they are required by law to submit evidence against their family. This would mean that Denzil’s mother is compellable to give evidence against her son.

Can Denzil’s lawyers object to any of the matters stated in Holmes’ report?

5) Denzil’s lawyers are permitted to object to any of the matters that are raised in Dr Holmes’ report. This is because the evidence that Dr Holmes is submitting to the court is evidence against the defendant and the job of the defence is to discredit any of the evidence that is called to the attention of the court. ‘The expert witness’s identity and nearly all documents used to prepare the testament will become discoverable. Usually an experience lawyer will advise the expert not to take notes on documents because all of the notes will be available to the other party.’ {5} This means that because Dr Holmes is testify the evidence against the defendant any notes she has made even if it was not to be mentioned in her testimony because it may have contradicted her findings is available to the defence party and can be used to cross-examine her, and may result in the evidence being discredited because it is inconclusive. In her report Dr Holmes has used a percentage to report the incidences of the glass fragments that were found at the crime scene matching the fragments that were found on Denzil’s person. In the court of law percentages are not always a credible way of presenting evidence for the court. From some points of view percentages are like opinions and are not always correct and precise.

As it was mentioned in question two about the standard of proof, although Dr Holmes is sure and believes beyond reasonable doubt that the glass fragments found on Denzil’s person are the matching to the glass fragments found at the scene of the crime, in the end this is only a prediction or a probability. And this evidence is not necessarily credible if it based on a probability. This is because there is the small percentage or probability that the glass fragment on Denzil did not come from the scene of the crime; it could have come from a different window. However there is the possibility that even if the glass fragment on Denzil’s clothing does match the ones at the crime, this does not necessarily mean that Denzil was the person who committed the crime of murdering Phoebe, he may have only broken the reason for some unforeseeable reason.

Another fact about Dr Holmes’ report which can be defence lawyers can object to is the fact that Dr Holmes concluded that the fragments on Denzil’s clothing ‘”must beyond reasonable doubt have got there when he broke the window as he killed the deceased.”’ This can be objected to because it is not Dr Holmes’ or any expert witnesses duty to concur that the victim actually committed the crime, they are not permitted to make statements such as these because this can be misleading for the jury, this may give the jury the view that because an “expert” has said that the defendant got those fragments on his clothing when breaking the window to kill the deceased then this must be true, because they are an expert and shouldn’t make any mistakes. However Dr Holmes could have made mistakes which could have lead her to believe that the fragments matched when they did not. Therefore if the jury convict the defendant based on the expert witness’s evidence when the evidence is wrong then the defendant would be wrongly sentenced when he may be innocent.

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References

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{3} Issues in Criminal Justice Lecture Material on Evidence and Trial

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{5}http://en.wikipedia.org/wiki/Expert_witness

Bibliography

[1] Criminal Law; 2nd Edition; Russell Heaton; Oxford university press

[2] Evidence; 3rd Edition; Roderick Munday; Oxford university press