Various issues regarding the law of evidence (Based on a fictional case)

Various issues regarding the law of evidence (Based on a fictional case) Sam Coppock - 2009 A number of evidential issues arise from this situation. The most obvious one is the burden of proof since the reason for going to court is to prove an issue which is in dispute between the defence and the prosecution. In addition there are a number of specific legal issues which arise in this case. Much of the evidence will be hearsay evidence, Justin's confession is important in this case but he has severe mental difficulties, The identification evidence available is particularly good, the effects of adverse pre trial publicity and the how evidence of previous bad character can be used are also issues. In Wolmington v DPP1 it was confirmed that the standard of proof in criminal cases is beyond reasonable doubt, in R v Summers2 this was described as the Jury being satisfied so that they are sure of the defendant guilt. This is important because the prosecutions job is to get a conviction so to do this they must make the jury sure that the defendants are guilty. R v Kray3 is an example of a high profile case where media coverage was not accepted as a reason to stay proceedings. Lord Justice Lawton commented that "The drama of the trial almost always has the effect of excluding from recollection that which went before". In effect he is saying that the jury is always going to be

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  • Level: University Degree
  • Subject: Law
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Law of Evidence

Q1 i. The legal burden is defined as the burden of proving facts and is determined by a fact finder. In this instance as it is a criminal case the fact finder would be the jury or a magistrate. In criminal law the prosecution has to prove the legal burden of proving every element of the offence charged and has to disprove any defences raised beyond reasonable doubt as illustrated in the case of Woolmington v DPP1. The legal burden of proof would have to be proven by the prosecution. This means that the prosecution has to prove that Frederick had drunk alcohol prior to the incident to obtain a valid conviction. This is shown by the concept of 'the golden thread' by Viscount Sankey where he stated "No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained"2. The defence that was raised by Frederick has to be disproved by the prosecution as he has not claimed insanity or the statutory express exception of diminished responsibility and his defence does not fall into the statutory implied exceptions i.e. S.1013. 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

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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.

Table of Statutes Criminal Justice Act 2003 ... 3, 4, 5, 6, 8, 10, 11, 12, 13, 14 s. 114(1)...4 s. 114 (1) (a) ...4 s. 114 (1) (b)... 4 s. 114 (1) (c) ... 4 s. 114 (1) (d) ... 4, 9 S.114 (2) ... 9 s.115 (3) ...8, 10 s.116 ...11 s.116 (2) ...11 S.116 (2)(e) ... 11 s.118 ...4, 6 s.120 (2) ...12 s.120 (5) ...13 s. 120(7) ...13 s. 120 (8) ... 13 s. 126 ... 14 s. 144 ... 4 Police and Criminal Evidence Act 1984 - s. 82(1) ...8 Table of Cases Acton Justices, ex parte McMullen [1998] 1 Cr. App.R.14, DC ...11 Al-Khawaja and Tahery v UK [2009] ECHR 110 ... 14 Belmarsh Magistrates' Court, ex parte Gilligan (1990) 92 Cr.App.R. 98 ...11 R v Athwal [2009] EWCA Crim 789 ... 12 R v Beckfold [1991] Crim.L.R. 833... 8 R v Birks [2003] EWCA Crim 3091, [2003] Crim LR 401 ... 12 R v Halpin [1975] 1 QB 907 ...7 R v Kavallieratos [2006] EWCA Crim 2819 ...9 R v Kearley [1992] 2 AC 228 ...10 R v Moghal (1977) 65 Cr. App. R 56 ... 5 R v Osborne [1905] 1 KB 551, 561... 12 Ratten v R [1972] AC 378 ...4 Sealey v Trinidad and Tobago [2002] UKPC 52 ...13 Sturla v Freccia (1880) 5 App Cas 623... 7 Introduction At common law, the general rule was that hearsay was inadmissible in evidence despite the many exceptions to the rule which exist. The hearsay rule is classically defined as "an assertion other than one made by a person while giving oral

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The Hearsay Rule

The Hearsay Rule In Myers v. DPP [1965] the accused faced several charges of receiving stolen cars. The prosecution case was that wrecked cars and their log books had been bought at a very low price and then cars of the same type had been stolen, passed off and sold as the legitimately bought cars. The prosecution were allowed to establish that the cars were stolen by calling employees of the car manufacturers, and these witnesses produced microfilm records (photographs of the written record compiled by anonymous workmen on the production line) purporting to show, the cylinder block numbers which had been indelibly stamped on the engine and contemporaneously recorded during the manufacturing process. The majority of the House of Lords held that the evidence had been wrongly admitted on the ground that the hearsay rule was absolute unless an exception applied. The list of common-law exceptions was closed, and the mere fact hearsay evidence was highly reliable was not of itself any reason to admit it in the absence of an established exception. No matter how cogent particular evidence may seem to be, unless it comes within a class, which is admissible, it is excluded. The technical nature of the hearsay rule has created difficulties for the courts. If highly reliable and probative evidence falls within the scope of the exclusionary rule it is inadmissible unless a

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Eyewitness Testimony

Eyewitness Testimony Numerous research studies have identified several problems with eyewitness testimony. One of the main researchers in this field is Elizabeth Loftus. Although it is known that schemas can affect the way we remember events, Elizabeth Loftus has been interested in the effects on memory of information provided after the event. Many studies were carried out that showed that memory for events can be changed or supplemented by later information. The experimental method was used, which has the advantage of the controlled environment of the laboratory, but which uses stimulus material that mimics real-life situations. For example in one experiment conducted by Elizabeth Loftus 150 participants were first shown a film depicting a shocking even, which in this case was a car accident. 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. Loftus found that only 2.7 per cent of the participants

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  • Subject: Law
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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

Surveillance & The Law Explaining to what extent is it accurate to state that evidence obtained from the interception of telephone calls is inadmissible in legal proceedings in the UK, critically evaluate the merits of the current legal position in this respect and make recommendations for how it might be improved. ________________ Generally it is accepted that the evidence obtained from the interception of telephone calls is inadmissible as evidence in criminal proceedings in the UK. There are however, a few exceptions to this rule and this paper is going to assess in which circumstances it is admissible. There is an overwhelming amount of controversy over this issue as many believe the use of intercept material as evidence would be more beneficial to our legal system and the conviction rates in our country.[1] However it is also widely recognised that ‘the tasks of recognising and regulating the impetus towards state surveillance in the information age is extremely challenging,’[2] particularly in relation to the vast amount of technological advances made over the past decade, it has proved difficult to keep up to date with change. 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, i.e., how RIPA (Regulation of Investigatory Powers Act 2000) may be

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  • Subject: Law
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Impact of Art 6(2) of the European Convention on Human Rights on the burden of proof in criminal trial

Introduction The presumption of innocence is the fundamental rule is criminal cases. Which means the defendant is presumed to be innocent until proven guilty. So, prosecution is required to prove all the elements of the offence beyond reasonable doubt. This principle was laid down Woolmington v DPP [1935][1] and affirmed in Art6(2) of the European Convention on Human Right. The significance of Woolmington was profound in two ways. First, it changed the previous law by rejecting Foster’s doctrine of the presumption of malice[2]. Secondly, its reference to the duty of the prosecution to prove the accused’s guilt, and holding that the prosecution also had the burden of disproving any common law defences that the accused had specifically raised.[3]However it is doubtful how far it has had either effect, even after the Human Right Act 1998. Exception of the presumption (a)Insanity In Woolmington v DPP, Lord Sankey LC expressly excluded the defence of insanity from the scope of the rule ---- prosecution to proof defendant’s guilt. It also rested on the authority of M’Naughton’s[4] Case, clearly placed the burden of proof of insanity on the accused[5] because ‘every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction…’[6] However, it should be noted, in H v

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  • Subject: Law
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