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Criminal Evidence Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

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A more recent version of these Criminal Evidence notes – written by City Law School students – is available here.

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Criminal Evidence Burden and Standard of Proof What is the distinction between the legal and evidence burden of proof?
Where does the legal standard of proof lie in criminal cases?
What are the exceptions where the legal burden is on the defence?

In what circumstances is the evidential burden of proof on D?

Witnesses What is the general rule with regards to competence of witnesses and whether they are compellable?
What are the exceptions to the general rule in relation to competence and compellability?

The legal burden of proof is where an issue must be proven 'beyond reasonable doubt' or 'on the balance of probabilities'. An evidential burden of proof merely requires the party to bring enough evidence to raise the issue. The legal burden of proof is on the prosecution to prove all the elements of the offence 'beyond reasonable doubt'. Where this burden is on D, the standard is the 'balance of probabilities'.

Where D raises the defence of insanity, the legal burden rests on D.

There are a number of express statutory exceptions that reverse the burden of proof onto D.

There are also a number of implied exceptions where a statute impliedly reverses the burden of proof onto D. When attempting to use a number of common law defences, e.g.:
? self-defence;
? duress;
? non-insane automatism;
? intoxication;
? provocation. In addition certain statutory defences impose an evidential burden. The general rule is that all persons are competent to give evidence and all persons are compellable to give evidence. Children and people of unsound mind: Youth Justice and Criminal Evidence Act 1999, s53(3): (although same test applies to anyone) are not competent is they are unable to: (a) understand questions put to him, and (b) give answers to them which can be understood. D and any co-accused: Youth Justice and Criminal Evidence Act 1999, s53(5): D is not competent to give evidence in his own trial for the prosecution. However, s53(1) makes D competent to give evidence on his own behalf, but not compellable.

Who must gives sworn evidence?

What is a witness summons?

XIC What form of questioning is permitted

Spouse or civil partner of D: A spouse or civil partner is competent to give evidence, but not compellable to give evidence for the prosecution in most circumstances. However, under Police and Criminal Evidence Act 1980, s80, a spouse/civil partner is now compellable in certain circumstances: (a) Where D is charged with an offence that includes an assault on, or injury or threat of injury to, the spouse or civil partner; (b) Where D is charged with an offence that includes an assault on, or injury or threat of injury to, a person under the age of 16; or (c) Where D is charged with an offence that consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of any of the above offences. However, a spouse/civil partner is compellable for the accused. Generally everyone who gives evidence must be sworn. However (YJCEA, s55(2)): o Children under 14; and o People unable to appreciate the solemnity of the occasion and of the particular responsibility to tell the truth; should not be giving evidence sworn. Where it is anticipated that a witness will not attend the court voluntarily, a witness summons can be applied for whereby the witness must attend or be in contempt of court. TEST: The witness must be likely to give/provide material evidence, but will not do so voluntarily, and it is in the interests of justice to grant the summons. Only non-leading question. However, there are 3 exceptions to this rule:

during XIC?

Can a witness refresh their memory from their W/S?

What must happen with any documents used to refresh the memory of witnesses?
Can evidence of previous consistent statement be adduced at trial?

What questions may be asked during reexamination?
XX What form of questioning should be used in XX?
Are previous inconsistent statements admissible as evidence?

What is the rule of finality?

When and what are special measures available?

(a) Introductory questions - questions about name and occupation; (b) Undisputed issues; (c) Hostile witnesses - a witness that is hostile to the party who called him and shows an unwillingness to tell the truth. Prior to giving evidence a witness may refresh their memory. Once they have begun giving evidence, a witness may refresh their memory from a previous statement (CJA 2003, s139) if: (1) He states in evidence that the document records his recollections of the matter at that earlier time; and (2) His recollection of the matter is likely to have been significantly better at that time than it is now he is giving evidence. They must be made available to the other parties and the jury. The other parties may then cross examine on their contents. Having been cross examined on them, the documents may then be admitted as evidence under CJA 2003, s120 (even though they are technically hearsay). The general rule is no. However, there are exceptions: (i) To prove a previous ID (CJA 2003, s120(4)-(5)); (ii) To prove a previous complaint (witness must give evidence prior to adducing the document); (iii) To rebut an allegation of fabrication (CJA 2003, s120(2)). Only non-leading questions and only questions that relate to matters that arose in cross examination. A witness may be asked leading questions about matters in issues, relevant facts, and issues of credibility. Questions are not restricted to matters raised in examination in chief ('XIC'). Yes. Under the Criminal Procedure Act 1865, s4-5, where a witness's evidence is inconsistent with a previous statement, the document may be adduced. The procedure set down in the CPA is: (a) The inconsistency must first be put to the witness; (b) The witness must then be given a chance to read the document and confirm whether it is true of not. (c) If they agree with it, it becomes part of their evidence insofar as it corrects it; if not, it can be put into evidence. Where a witness is being cross examined on a collateral issue and has given an answer, no further questions can asked or evidence adduced on that issue. However, there are 4 exceptions to this rule: (1) Previous convictions; (2) Bias; (3) Reputation for untruthfulness; and (4) Disability affecting reliability. In circumstances where a vulnerable or intimidated witness is going to give evidence, the court can order special measures to be taken. The categories for such witnesses are: 1) Children under the age of 17 at the time of hearing; 2) The quality of the witness's evidence is likely to be diminished due to: (i) A mental disorder; (ii) A physical disability or disorder; or (iii) A significant impairment of intelligence or social functions; 3) The quality of the witness's evidence is likely to be diminished because of fear or distress; and 4) The witness is the complainant in respect of a sexual offence. Special measures can include: o Wigs and gowns not worn; o Pre-recorded XIC; o Evidence given through video link; o Witness prevented from seeing D;

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