The Redundancy of the Similar Fact Exclusionary Rule
LAW 306 Law of Evidence and Civil Procedure Research Assignment (AY 2010/2011 Term 1) Legal Reform: The "Redundancy" of the Similar Fact Exclusionary Rule Group 2 Student Identification Number: S 8701210G Number of words:3000 I. Introduction Generally, it is common sense that past actions or character is probative as to future conduct existence or the state of mind of a person in question. However, the conventions suitable for everyday decision-making may not be sufficiently rigorous for the criminal process. Here, the rule on similar fact evidence concerns the admissibility of evidence regarding a previous conviction of the accused or of his past conduct on an occasion other than that cited in the present offence charged. Nonetheless, as applied within the frame work of the Evidence Act1 (EA), there have been significant criticisms regarding the continued relevance of the similar fact evidence rule. Consequently, there have been calls to do away with the exclusionary rule. This paper will look at the various arguments as to the redundancy of the similar fact evidence rule. We will then consider whether abolishment is the best way to address the issue by analysing the underlying considerations of the rule. As the preferable alternative, we will then propose some reforms so as to better adapt the rule within our existing criminal justice system. This will be
It is time the rule against hearsay evidence in criminal proceedings was abolished and brought into line with the rule in civil proceedings. Discuss.
2,000 words It is time the rule against hearsay evidence in criminal proceedings was abolished and brought into line with the rule in civil proceedings. Discuss. The hearsay ruling, one of the biggest exclusionary rules in the law relating to evidence, has often been criticised. There are those who support it and those who see little relevance in the rule, and would like to see it abolished. In civil cases, the rule now has little application, and could be seen as an indicator of the growing feeling of dissatisfaction with the rule1. That said recent criminal cases have shown that the hearsay rule is still playing a part in cases and proving as problematic as ever2. Its impossible to give a thorough look at hearsay in such little space3, but a brief over view of what exactly the hearsay rule is, will be followed by a look at some of the problems it causes, and why abolishment may seem appropriate. Cross on Evidence4 defines Hearsay as: "An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted". This is to prevent, a witness being called to testify that a person told them they saw a crime happen, though they themselves did not see it. However the hearsay rule in operation is not quite as simple as it first seems. There is a distinction made between original evidence and
The impact of HRA on burden of proof and bad character
Burden of proof The non-fugitive initial presumption of innocence upon the accused and the heavy onus of proof insisted upon the prosecution to prove the guilt of an accused beyond reasonable doubt steadily erect the fundamentals of English criminal law. Thus, an accused person cannot be adjudged guilty, unless and until it is proven, accomplishing the standard of proof, that he is guilty. This is unyieldingly reflected in Art.6(2) European Convention of Human Rights (ECHR).1 The 'golden thread' which imposes the entire legal burden on the prosecution was robustly constructed in the landmark case of Woolmington v DPP.2 The House of Lords rejected the approach that the defendant was to bear the burden of establishing any defence he wished to advance, since it was for the Crown to prove that he had committed the actus reus of the offence. Instead, it was held that, save in certain exceptional cases, the prosecution bore the burden of proving all the elements of the crime and of negativing any defences advanced by the accused. Meanwhile, there are exceptions where the burden of proof is shifted to the defendant. Under common law, the only exception to the 'golden thread' is when the defence of insanity is raised by the accused. He must establish this on a balance of probabilities. It can be traced back to the advisory opinions of the judges in M'Naughten's Case.3 Statues may
'The hearsay rule ought to be abolished. Its exceptions are complex and lead to the arbitrary exclusion of cogent evidence' - Discuss.
' The hearsay rule ought to be abolished. Its exceptions are complex and lead to the arbitrary exclusion of cogent evidence' Discuss Plan Intro Argument for hearsay Reasons . Law commissions findings Exceptions and exclusions Against Statute. Safety valves. Law commission Zuckerman report conclusion Insert introduction Definition of the hearsay rule: 'No-one seems to dout that the hearsay rule as applied in criminal cases in this country is imperfect' (Tapper, C) Cross & Tapper: A statement other than one made by a person giving oral evidence in the proceedings is inadmissible as evidence of any fact [or opinion] stated.1 Section 1(2)(a), Civil Evidence Act 1995: 'Hearsay' means a statement made otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated. Identifying hearsay There are three ingredients of hearsay: (1) A statement or assertion (2) Made by a person other than while giving evidence in the proceedings (3) Which is tendered in order to prove the truth of some fact asserted in it. X, a shopper, states to W, a store detective, "D picked up a book and ran off without paying". If D is charged with theft of the book this statement is relevant, but the hearsay rule will prevent the prosecution calling W to testify that he heard W say this, since the purpose of doing so is to ask
Theories , Punishment and Law
What is the Dangerous Severe Personality Disorder (DSPD) Programme? Dangerous Severe Personality Disorder is a term to describe a small group of people with a severe personality disorder who, because of their disorder pose a significant risk of serious harm to the public. The government introduced the term DSPD in a consultation paper 'Managing Dangerous People with Severe Personality Disorder' in 1999, which proposed how to detain and treat a small minority of mentally disordered offenders. The main objectives of the governments proposals are to ensure that dangerous people with DSPD are kept in detention for as long as they pose a high risk to others, "Public protection is the central aim of the programme,"1and to modernize the NHS by providing a high quality service to enable them to deal with the consequences of their disorder, reduce their risk to others and can work towards successful re-integration into the community. In England and Wales three are 2,400 people thought to have DSPD. The Home Office estimates that, 1,400 are already in prison; a further 400 are patients in high security psychiatric hospitals with between 300-600 in the community, about 98% of those with DSPD are believed to be men2. Studies suggest that hardly any women perhaps even none, meet the criteria3. The DSPD programme is piloted by the Home Office, Department of Health and the Prison
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
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 Under English Law, it has always been required that every contract be supported by consideration. Initially, contract, acceptance and certainty are the standard requirements which prescribe the skeletal structure of a contract's formation. The dominant theory of consideration has provided agreements with the elements of a bargain, thus distinguishing contracts from gifts; and consequently a promise made by one person to another is not legally enforceable. In addition, the latter unless he has provided some promise or act in return. Taken from Currie v Misa 1 the principle of consideration was defined as: A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to one party or some forbearance, detriment, loss or responsibility, given suffered or undertaken by the other. 2 However, in most recent times the doctrine has come under criticism (for example, Lord Edward Coke on Pinnel's case pleaded that '...by no satisfaction can a lesser sum on part-payment can be approval to the plaintiff for a greater sum' 3 however Lord Blackburn criticised this judgement), taken from the article of 'Foakes v Beer: Reform of common law at the expense of equity, Alexander
The impact of HRA 1998 on burden of proof and confession
The law of evidence is very important and plays a major role in the English legal system. Its principles are comprehensive and extensive. Its frameworks could determine between verdicts. The Human Rights Act 1998(HRA) implemented the European Convention of Human Rights(ECHR) into England law. As a result, the rights enshrined in the Convention have had a huge impact on the law of evidence in particular, burden of proof and confession, which will be analysed. Over the years, there has been much statutory reform, including the enactments proposed to bring UK law into line with the ECHR. These reforms have done much to ease or strengthen some restrictions on the admissibility of relevant evidence, to rationalise and clarify the law, to enhance the discretionary powers of the judge, and to remove some of the more inconsistent and unnecessary differences between the rules in civil and criminal cases1. The burden of proof is the obligation placed upon a party to prove or disprove a disputed fact, or it can define which party bears this burden. Jurists in the common law tradition have distinguished two principal senses of the burden of proof i.e. the legal burden2 and the evidential burden. The legal burden has been defined as the obligation imposed on a party by a rule of law to prove or disprove a fact in issue. In criminal cases, the legal burden is generally borne by the
Analysis of Fingerprint Evidence using Digital Imaging Techniques.
Analysis of Fingerprint Evidence using Digital Imaging Techniques Digital Imaging for Fingerprint Enhancement (DIFE) involves the conversion of a picture or image of a print into a digital file, usually by the use of scanners and digital cameras. The scientific process for this is by use of a grid of detectors known as a charge coupled device (CCD) that detect light patterns and convert them to an electrical signal. The detectors each correspond to the pixels on a digital image; each pixel takes on a particular shade of grey according to the quantity of light the sensor it is representing detects. The more sensors used in the CCD, the more pixels can be created and therefore the more accurate and detailed is the representing image. The digital file created can then be enhanced in several ways; an interfering background can be removed from the image, the contrast between the print and the background can be increased and the intensity difference between each pixel can be increased in order to sharpen up the image. Digital imaging also allows computer-aided image matching in which the software can search for similar prints for subsequent analysis by the fingerprint expert. The CCD is an electronic imaging system where the process of light capture, is performed by photo diodes. Here each incident photon frees up an electron, which can be stored for a subsequent readout, the
"THE CONCEPT OF RELEVANCE IN THE LAW OF EVIDENCE IS NOT AS STRAIGHTFORWAD AS IT APPEARS TO BE." DISCUSS
ABIOLA PEDRO "THE CONCEPT OF RELEVANCE IN THE LAW OF EVIDENCE IS NOT AS STRAIGHTFORWAD AS IT APPEARS TO BE." DISCUSS It is difficult to spell out a straightforward definition of the concept of relevance (Tapper, p71). In the R v Nethercott case, it was held that any two facts to which the concept of relevance is applied are so related to each other that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present or future existence or non-existence of the other. According to Lord Simon in DPP v Kilbourne, "Evidence is relevant if it is logically probative of some matter which requires proof... It is sufficient to say ... that relevant (that is, logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable" (Allen, p8). Essentially, relevant evidence is that which makes the matter requiring proof more or less probable. In this sense, relevance is arguably an absolute concept, as proof of one fact either makes the existence of another more probable, or it does not. 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
The provisions in sections 34-38 of the Criminal Justice and Public Order Act 1994 create more problems than they solve
The provisions in sections 34-38 of the Criminal Justice and Public Order Act 1994 create more problems than they solve The provisions in sections 34-38 of the Criminal Justice and Public Order Act 1994 create more problems than they solve Introduction In English law, people suspected of ?rimin?l offences may remain silent as a protection ?g?inst self-incrimination. Following a prolonged debate, the right to sil?n?? was modified under Section 34 of the ?rimin?l Justice and Public Order Act 1994 (England and Wales) so that, in some circumstances, ??urts can now draw adv?rs? inf?r?n??s if suspects do not answer questions put to them by the ??li??. Why the right to sil?n?? caused so much controversy The major argument advanced by those in favour of abolishing the right to sil?n?? is that it lacks a rational foundation in the context of a ?rimin?l justice system whose purpose should be to discover the truth. It is asserted that the untrammeled existence of a right to sil?n?? can only help the guilty and hinder the innocent. Bentham's famous aphorism is summoned in aid: `Innocence claims the right of speaking, as guilt invokes the privilege of sil?n??.' Thus it is contended by abolitionists that ??li?? should be able to require people to explain a scenario, suggestive of their having committed a crime, based upon information already provided to ??li?? and raising in the