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University Degree: Law of Evidence
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The common law rule against hearsay evidence had a deserved reputation for being technical and difficult. To what extent has the new statutory schemes rectified this? Discuss.
statement as the truth of the evidence is unknown. On the other hand, renowned academicians have expressed concerns that the consequences of hearsay rule can lead to cogent evidence being excluded. Certain hearsay evidence are said to be "credible, probative, and reliable, can give a better-rounded picture of what happened, and can be better than no evidence at all". Cross's view is that "evidence of indisputable reliability has been excluded under the hearsay rule" and this causes decision which "were grossly unjust". Apart from this, Law Commission itself says that "some hearsay is the best evidence and ...
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Under Makin, (1) Evidence of prior misconduct is inadmissible if it is tendered to show that the accused is likely to be guilty. (2) Nonetheless, such evidence is admissible if it is relevant to some other issue which is before the court. The next development of the common law came in the case of Boardman v DPP3 (Boardman), where Lord Hailsham propounded a simpler approach - that similar fact evidence is admissible if its probative value outweighed its prejudicial effect.
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Burden of Proof. The courts constantly battle with the simple question of: in what circumstances is a reverse onus in a criminal case compatible with the presumption of innocence under Art.6(2) of the Convention?
Viscount Sankey stated in Woolmington v Dpp2, now referred to as the 'The Golden thread of criminal law' ""Throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt''". In the lay mans, very commercialized terms 'One is innocent until proven guilty'. There is much debate on the matter of reversing burdens. What does parliament expressly require? Or is the question - when does parliament expressly require a reversal of burden?
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In R v Taylor5 the judge described media coverage as "unremitting, extensive, sensational, inaccurate and misleading." What was published had strong sexual connotations which implied the accused had the motive. A retrial was ordered. During R v Maccann6 Many high profile figures such as lord Denning aggressively criticised the right to silence on TV stating that no man who had nothing to hide would stay silent. In light of this the convictions were quashed. In R v Reade7 the police officers accused of the corruption which caused the Birmingham 6 miscarriage were granted a stay of trial because it caused so much anger and controversy that the general public will never forget about it.
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The prosecution must produce sufficient evidence to present before the tribunal of fact. This is to prevent the case being thrown out of the court and to satisfy the legal burden. The evidential burden may be defines as; "...the obligation on a party to adduce sufficient evidence of a fact to justify a finding on that fact in favour of the party so obliged"5. In between the two burdens lies the provisional burden which is the obligation of a party to respond where the opponent has discharged the evidential burden.
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Reasons for the Rule 4. The rule was originally intended to ensure that evidence that might be no more than rumour and gossip, and therefore be regarded as unreliable, was kept from consideration in determining innocence or guilt in the trial process. 5. However it is a rule that is ambiguous both in its definition and its application. If you have evidence that you consider may be "hearsay", you should discuss it with your line management and, if need be, contact your legal liaison point who may in turn contact Solicitor's Office.
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As mentioned in the statement by Lord Sankey, this principle is subject to certain exceptions. The law sometimes places the burden of proving a defence on the defendant. This is known as a reverse proof burden and the accused must prove the particular defence or lose in respect of it. The two exceptions of insanity and any statutory exception were added to by the Court of Appeal's decision in Re Edwards . This was later put into law by virtue of section 101 of the Magistrates Court Act 1980 which provides: "Where the defendant to an information or complaint relies
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A critical review on Foakes v Beer: Reform of common law at the expense of equity, Alexander Trukhtanov, Law. Quarterly .Review. 2008, 124 (Jul), 364-368
The aim of the article criticises the judgments in Foakes v Beer and whether the decision in Collier 5 could contemplate giving equitable relief as such common law defence. This essay will examine opinion hostile to the doctrine of consideration and will consider its possible abolition. Equally, this essay will consider the refinement of many of its traditional principles with a view to recommending its preservation as an essential element of contract. In summary, the author conducted a review on the influence on the decisions and judgements between the cases of foakes and collier.
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"THE CONCEPT OF RELEVANCE IN THE LAW OF EVIDENCE IS NOT AS STRAIGHTFORWAD AS IT APPEARS TO BE." DISCUSS
Notwithstanding, relevance is often regarded as variable, just as evidence can be regarded as more or less relevant. Zuckerman describes relevance as "having a contextual and dynamic nature", and the relevance of one fact to another can be judged on its own or in connection with other facts (Zuckerman, p46). This seems to relate more to the cogency of the evidence, given its relevance, but it secures a place in the exposition of the subject because the qualification of sufficiency relates to it.
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Here, Court of Appeal ruled that the case against Woolmington was so strong that he would have to demonstrate the accidental nature of the shooting. However, the House of Lords allowed the appeal5 stating that however bad things looked for Woolmington, he was allowed the benefit of any doubt6, and he does not bear a legal as well as an evidential burden. However, as recognized by the Viscount, there are exceptions7 referred to as reverse-onus provisions. As Lord Steyne stated in R v Lambert8 'there are ...
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Sexual Offences Act 19564, s.2(2) Homcide Act5 and s.74(2) Police and Criminal Evidence (PACE) Act 19846. Statutes may also cast the burden of proof on the accused by necessary implication as enshrined in the leading case of R v Turner.7 This branch of the law of evidence has undergone considerable change in the wake of the passage of the Human Rights Act (HRA) 1998. Since s.3 HRA 19988 requires courts to interpret English legislation so far as possible in a manner compatible with the Convention, it immediately poses the question as to whether it is ever permissible for the law to cast the legal burden of proof on the
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Individuals will be assessed against the national DSPD criteria only if they have a history of violent or sexual behaviour, and if there is evidence to suggest the person has severe personality disorder. Only people who have committed a crime will be detained in prison and those detained in hospital will have rights and safeguards under the Mental Health Act 1983. The DSPD programme works with the most difficult and dangerous persons in society, and it faces a range of challenges in terms of assessment, treatment and management of this group, it also aims to deliver an effective service and the long-term prospects of reducing re-offending.
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The provisions in sections 34-38 of the Criminal Justice and Public Order Act 1994 create more problems than they solve
Their sil?n?? should be regarded as ?vid?n?? ?g?inst them. Abolitionists also argue that the ?rimin?l justice process should be a level playing field with similar rules applying to both the prosecution and the defence. They contend that it is unfair that the defence should be permitted to decline to make any response whatever to investigators and even within the ??urtroom while the ??li?? and the Crown have to let him or her know what their allegations are and what their ?vid?n??
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It is then up to the party trying the fact i.e. judge or jury to decide if the legal burden is discharged. The evidential burden is defined as merely a burden to produce evidence. It is the burden of adducing evidence or raising an arguable case. At the start of a trial, the prosecution has the evidential burden to produce evidence on every element of the offence charged. If the prosecution cannot raise a 'prima facie' (by first instance)
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It has long been acknowledged that the law in this area is highly unsatisfactory in its complexity and uncertainty. The Criminal Law Revision Committee in 1972, and the Runciman Royal Commission in 1973 recommended continuation of the scheme of general exclusion, but subject to slightly different exceptions, the latter also recommending that the Law Commission should consider it. In 1994 the Law Commission was asked to do so; it produced a consultation paper in 1996 prior to publishing its final report in 2001 mentioned above.
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In the interval, between viewing the slides and being tested for recall, participants were spilt into two groups and asked ten questions about what they had seen. Group 1 were asked questions which were entirely consistent with the original film, in contrast to group 2 who were given the same questions except one which was changed to a question which conflicted with the original witnessed event. After one week, all of the participants were asked a further ten questions, and for the final question it was a conflicting question.
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This study provides evidence that the language used in a question can distort recall. When questioned later about the amount of glass at the scene more of the participants that had been in the 'smashed' condition reported seeing glass than the participants in the 'hit' condition, when actually there was none. Showing that information given after the event can alter a witness memory of the original event. Loftus and Zanni (1974) as cited in Eysenck and Keane (2000) found that even trivial differences in the way a question is asked can create false memories.
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When psychologists act as expert witnesses a number of issues are raised surrounding the admissibility of their evidence - Discuss these issues with reference to eyewitness testimony and domestic violence.
In this essay, it will describe approaching psychologists in courtroom for expert witness and their admissibility of testimony in two main cases such as eyewitness testimony and domestic violence (e.g. battered woman syndrome). Finally, this essay will describe there are different limitation, solutions and future perspective surrounding the admissibility of expert evidence. In the 19th century, an expert witness served the court rather than the litigants (Landsman, 1995). However, in nowadays, expert witnesses are recruited by trial attorneys and rarely by the judge.
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It is time the rule against hearsay evidence in criminal proceedings was abolished and brought into line with the rule in civil proceedings. Discuss.
However the hearsay rule in operation is not quite as simple as it first seems. There is a distinction made between original evidence and hearsay evidence. Whether a matter is hearsay, and inadmissible or not depends on the purpose the evidence is produced for. For example, witness A stating "I saw X stab Y" would be original evidence. Witness B stating "I saw A crying because she said she saw X stab Y" would be inadmissible hearsay if its purpose was to prove X as a murderer.
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The CCD acts like a bucket holding the electrons. The CCD's can be cascaded into arrays in which the electrons can be efficiently moved from one cell to another over long distances to a final readout destination. The reading, which is taken from each array, is directly proportional to the light intensity at that point in the captured image. So just as in conventional photography where silver halide crystals record the level of light intensity, the photo diode found in a digital system does exactly the same job.
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The hearsay rule generally disallows the use of out of court statements as evidence of the truth of the matters asserted in that statement. However in countries like Malaysia, the parliament has come up with a regulation to allow hearsay as evidence. That regulation is the Esential (Security Cases) Regulations (ESCAR) Offences. The Attorney General in Malaysia can designate any offences as an ESCAR prosecution. This procedure directly indicts the accused to trial by the High Court Justice without a jury. Witnesses need not identify themselves when they testify. Hearsay is admissible and giving the same weight as direct evidence.
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'The hearsay rule ought to be abolished. Its exceptions are complex and lead to the arbitrary exclusion of cogent evidence' - Discuss.
The rule thus obliges the prosecution to call X as a witness to give direct evidence that she saw D take the book.2 Reasons in favour of Hearsay rules Why do we need a rule that prevents or restricts evidence being given by anyone? * Ambiguity of Narration Language is ambiguous and several meanings can often be ascribed to the same word. It may be that only the maker of the statement knows what he meant when he used the particular words in question.
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Impact of Art 6(2) of the European Convention on Human Rights on the burden of proof in criminal trial
It?s deemed regardless of the principle set down in Woolmington?s case. In 1996, Ashworth and Blake have demonstrated the extent to which Parliament derogates from Woolmington principle in relation to indictable offences. Their research found that no fewer than 40 per cent of offences triable in the Crown Court violate the presumption of innocence by requiring the defendant to prove a statutory defence or disprove at least one element of the offence. (c) Implied Statutory Reversal There are number of cases where an enactment may be constructed as impliedly imposing a legal burden on the accused.
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Surveillance Evidence. This paper will attempt to assess the current law and its merits and conclude with some effective reform recommendations to how the law might be improved in this area
It was then the decision of the European Court of Human Rights in the infamous case of Malone v UK which triggered the introduction of the Interception of Communications Act 1985. During this case the Vice-Chancellor observed the ECHR decision in Klass v FRG and recognised that telephone tapping was ?a subject crying out for legislation.? The court held that the UK did not meet the requirement of being ?in accordance with the law? under Article 8 of the ECHR and this case subsequently brought in the first piece of statutory footing for interception of communications in the UK.
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