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Evidence Lawcards Glossary

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Chapter one

Relevance

'Relevance' refers to the relationship that exists between an item of evidence and a fact that has to be proved, which makes the matter requiring proof more or less probable. There is no minimum degree or measurement of relevance needed but the evidence cannot be neutral Ð it must have an effect on the probability of a fact being proven or disproven. Relevance is a question for the judge, and is based on common sense. But a judge may decide that something that is relevant according to ordinary reasoning is not legally relevant. This may be the case, for example, where a judge wishes to avoid a proliferation of side issues that may confuse a jury, cause delay or give rise to mere speculation

Admissibility

Where evidence is relevant it is prima facie admissible. Evidence can be excluded from the court if a rule of law or a judicial discretion excludes it. Admissibility rules exclude certain types of evidence from the court, usually in order to ensure a fair trial and to prevent examination of too many side issues.

Weight

The weight, or importance one gives to the particular piece of evidence, which is usually a matter for the jury, is partly dependent on its relevance. The weight of the evidence will also be affected by the way in which the evidence is given, the character of the witness and whether or not that witness is discredited in cross-examination.

Facts in Issue

These are the facts which the prosecution (occasionally the defence) must prove in order to succeed. If the defendant pleads not guilty all the facts are in issue; that is the prosecution must prove the actus reus of the offence and any mental element required.

Testimony

Testimonial evidence is evidence spoken orally during the trial but it does not necessarily require a 'live' performance. Some witnesses are allowed to give evidence from a different room in the Courthouse or by way of a pre-recorded video, this is especially so where the witness is a child or otherwise vulnerable.

Circumstantial evidence

This is the oral statement of a witness made on oath in open court and tendered as evidence of the truth of the facts asserted. "Direct" means that the witness himself perceived the facts asserted with one of his five senses, usually he saw or heard the facts to which he testifies. Such testimony, which is always admissible if it is relevant and the witness is competent, is usually contrasted with hearsay evidence which is usually not admissible unless subject to an exception.

Documentary evidence

Documentary evidence consists of documents produced in evidence before a court. "Document" now means not only the written or typed form but includes maps, plans, graphs, drawings, photographs, tapes (audio and visual), films, negatives and discs, in short every means of communicating information other than the direct spoken word.

Hearsay Evidence

Hearsay evidence is any statement, other than one made by the witness in the course of giving his evidence in the proceedings in question, which is tendered as evidence of the truth of the facts asserted, where made to cause a person to believe the matter or a person or machine to act on the matter as stated.. The definition in criminal proceedings is found in the text of ss 114 and 115 Criminal Justice Act 2003. Such evidence is inadmissible unless subject to a common law or statutory exception.

Original Evidence

Depending on context, this expression can refer to evidence that is first hand, in the sense that it does not come before the tribunal at second hand or in some other derivative way; alternatively, the expression can refer to evidence of words uttered by someone other than the testifying witness, where the object is not to prove the truth of the words uttered, but merely the fact that the utterance was made.

Opinion Evidence

Ordinary witnesses are not allowed to give their opinion, they must only testify to facts personally perceived. Expert witnesses may, however, give opinion evidence on issues within their expertise and beyond the court's competence.

Real Evidence

This is usually taken to mean some material object which is produced to the court for inspection so that the court may draw its own inference from the observation of the particular object. Though often an important element in the prosecution case (sometimes also the defence case) it is often of little evidential value without some accompanying testimony.

Best Evidence Rule

This rule probably no longer exists but required the best form of evidence to be given if available, for example the original version of a document rather than a copy.

The Voir Dire or Trial Within a Trial

There are a number of occasions when the admissibility of certain evidence is in dispute. If the issue was to be determined in the presence of the jury they might be prejudiced by hearing evidence which is then ruled inadmissible. In the Crown Court the issue of admissibility and/or exclusion is determined in the absence of the jury on a voir dire or trial within a trial.

Legally Relevant Facts

A legally relevant fact is a fact which is relevant to an issue before the court which is not inadmissible because of an exclusionary rule.

The Function of the Judge and Jury

The criminal trial almost always involves questions of law and fact. In jury trials the general rule is that questions of law are to be decided by the trial judge while questions of fact are to be decided by the jury. Matters such as the competence of witnesses, the admissibility of evidence and matters relating to the substantive law are matters of law for the judge. Matters such as the credibility of a witness who has been declared competent, the weight to be attached to any evidence and the existence, or non-existence, of the facts in issue are questions of fact for the jury.

Summing Up

After the conclusion of all the evidence and closing speeches by counsel in a trial on indictment, the trial judge must sum up the case for the jury. He must direct them on the relevant substantive law, remind them of the evidence that has been given and direct them on a number of evidential matters.

Collateral Facts

These are facts which are not directly relevant to the facts in issue. In the main collateral facts are facts which go to the credit of the witness (including the victim).

Corroboration (or Supporting Evidence)

Corroboration is evidence which supports the truth of facts asserted by another witness. At its simplest it could mean no more than another independent witness giving the same evidence so that each supports the other. A more complex form of corroboration may come from confirmatory details as where a child allegedly kidnapped by D describes the inside of D's car. If the detail can be confirmed as being sufficiently unusual to identify D's car that would confirm and support the child's testimony.

Disclosure

Before a civil or criminal case gets to court there are obligations on the parties of disclosure, essentially an obligation for the parties to reveal their case and hence for the main issues of contention to come to light.

Credibility

Evidence going to credibility or character is often relevant but may be curtailed in certain scenarios (the rule on finality). Where the defendant is concerned evidence of his credibility helps to establish a good character and so the lower likelihood that he committed the offence.

Issue

Evidence going to the issue relates to the facts in issue and the substantive law, ultimately for the defendant evidence going to the issue refers to the question of whether he is guilty of the offence.

Chapter Two

Burden of Proof

The 'burden of proof' is the obligation which rests on a party in relation to a particular issue of fact in a civil or criminal case and which must be 'discharged' or 'satisfied' if that party is to win on the issue in question.

Legal and Evidential Burdens

Whilst the expression 'burden of proof' is properly used to describe the 'legal' or 'persuasive' burden; that is the legal obligation on the prosecution to prove all the facts necessary to establish the defendant's guilt. However, it is also (incorrectly) used to describe the 'evidential' burden; that is the obligation upon either the prosecution or the defence to produce sufficient evidence to establish the facts, more correctly referred to as the 'burden of adducing evidence'.

The Standard of Proof

'Standard of proof' means the level or degree of proof which must be established. There are only two standards; the criminal standard of proof which is 'proof beyond reasonable doubt'; and the civil standard, proof 'on the balance of probabilities'.

Proof beyond Reasonable doubt

In criminal trials where the prosecution bears the legal or persuasive burden they must establish the defendant's guilt beyond reasonable doubt. This standard applies in all criminal trials whether before magistrates or on indictment before a jury. If there is a reasonable doubt created by the evidence given either by the prosecution or the defence the prosecution has not made out its case and the defendant must be acquitted.

Proof on the Balance of Probabilities

A lower standard of proof is required in civil cases: proof on the balance of probabilities; often referred to as 51 per cent. On those relatively rare occasions where the defence in a criminal trial bears the legal burden on an issue they must prove it on the balance of probabilities.

Prima Facie Case

Before the defendant in a criminal trial will be called to provide a defence, the prosecution must have established a prima facie case (often termed a plea of 'no case to answer'). The judge will need to make an assessment at the close of the Prosecution's case, if the prosecution has presented Òsuch evidence as, if believed and left uncontradicted and unexplained, could be accepted by the jury as proofÓ (Jayasena v R [1970]; R v Galbraith [1981]).

Presumptions of fact

A 'presumption of fact' is no more than an inference from facts that is part of the ordinary reasoning process. For example, by s 8 of the Criminal Justice Act 1967, there is a presumption of fact that people intend the natural consequences of their acts. The section provides that a court or jury, in determining whether a person has committed an offence, shall not be bound in law to infer that he intended the result of his actions by reason of its being a natural and probable consequence of those actions, but shall decide whether he did intend that result by drawing inferences from all the evidence.

Irrebuttable presumptions of law

These are just the same as rules or principles of substantive law. For example, 'the presumption of innocence' is a way of referring to the principle that the burden of proof generally rests on the prosecution in a criminal case.

Rebuttable presumptions of law

The general pattern of these presumptions is that, once a party has proved certain basic facts, other facts will be presumed to exist, in the absence of some evidence to the contrary. The amount of contrary evidence required depends on the substantive law applying to the particular situation.

Formal Admissions

A formal admission is where one party admits an element of the civil case or criminal offence. This is encouraged in order to reduce the amount of contentious aspects left for the trial to consider. Once admitted this provides conclusive evidence in those proceedings of the admitted fact.

Judicial Notice

Judicial Notice refers to the acceptance by a judicial tribunal of the truth of a fact without formal proof, on the ground that it is within the knowledge of the tribunal itself.

Chapter Three

Judicial Discretion to Exclude Evidence

The exclusion of admissible evidence is perhaps the single most important way of influencing the jury. The influence is negative in the sense that the jury are prevented from hearing evidence which is admissible and relevant, usually because its probative effect is deemed to be outweighed by its prejudicial effect. Put another way the jury is not trusted to deal with potentially prejudicial evidence.

The Common Law Discretion to Exclude Evidence

The discretion to exclude admissible evidence is confined to evidence produced by the prosecution. In R v Sang [1980] AC 492, the House of Lords stated the common law discretion in the following terms:(1) The trial judge at a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after the commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained but how it is used at trial.

The Statutory Discretion to Exclude Evidence

Section 78 of the PACE Act 1984 states: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. S 78 has been far more widely, and arguably often incorrectly, relied upon to exclude confession evidence.

Abuse of Process

An abuse of process is where state agents have abused their powers and if successfully pleaded it will cause the case to be stayed (ended). The case will therefore not be tried at all on the basis that it is an affront to the principles of justice and fairness (Teixeira de Castro v Portugal [1988]). The purpose of the doctrine is to uphold the integrity of the criminal justice system and deter state agents from abusing their power.

Chapter 4

Competence

In order to give evidence in court a witness must be deemed competent by law to give evidence. Competency is a legal issue and concerns the legal ability to give evidence Ð within it is the issue of the mental and physical ability to give evidence. Competence is determined by s 53 Youth Justice and Criminal Evidence Act 1999 for criminal proceedings and the test in R v Hayes [1977] and s 96 of the Children Act 1989 for civil cases.

Compellable

A witness is who is competent is generally also compellable, which refers to the ability of the Crown to compel the witness to attend and answer questions or be in contempt of court. Some witnesses are not compellable, in addition to certain diplomats, foreign statesment and the Queen, the defendant is never compellable in his own defence or that of a co-defendant. In addition, the criminal law protects the marriage bond and so in certain cases a spouse or civil partner is not compellable to give evidence against the defendant spouse/ civil partner for the prosecution or a co-accused, but they remain compellable to give evidence for the defendant.

Unsworn

Oral testimony in court must usually be delivered sworn: that is by swearing a religious oath or non-religious affirmation that they will tell the truth. Certain witnesses are allowed to give evidence unsworn, which means without swearing an oath or affirmation.

Adverse Inferences

Provisions of the Criminal Justice and Public Order Act 1994 allow the jury to draw adverse inferences from the silence of the defendant in a number of circumstances, including from his silence at trial (ie his failure to give evidence). An adverse inference generally refers to drawing conclusions about his evidence and defence: possibly that he has no defence that will stand up in court or his defence is a pack of lies. Adverse inferences can therefore be drawn on the issue of his guilt.

Special Measures Direction

Where the evidence of certain witnesses would be affected by their vulnerable status (possibly as a young child) or the evidence which they must give (possibly very intimate details of a sexual assault or intimidation by the defendant) the law allows them to be aided in their testimony by the use of certain measures that work to alleviate the stress of testifying.

Witness Anonymity

Keeping the identity of a witness secret from the defence is a serious step to take, but witness anonymity means just that: that key witnesses for the prosecution might be allowed to give evidence anonymously, i.e. without revealing their identity to the defendant or counsel. New statutory laws (Criminal Evidence (Witness Anonymity) Act 2008) were enacted in a rush in 2008 when the House of Lords held that in certain cases complete anonymity from the defence hampered the fairness of the trial (R v Davis [2008]).

Examination-in-chief

This is the first stage in the examination of a witness at trial and is conducted on behalf of the party who has called him. In civil actions in the High Court, a witness' pre-trial written statement may stand as the evidence-in-chief (r 32.5 of the Civil Procedure Rules 1998). A witness will often be favourable to the cause of the party calling him. Because of this, two rules that are peculiar to examination-in-chief have developed: the rules against leading questions and against discrediting one's own witness.

Cross-examination

The objects of cross-examination are to complete and correct the story told by a witness in examination-in-chief. Because of this, the right to cross-examine can be exercised by anyone whose interests have been affected by the testimony. Thus, co-plaintiffs and co-defendants may cross-examine each other. For the same reason, the scope of cross-examination is not confined to those matters dealt with during evidence-in-chief, but extends to all relevant matters.

Re-examination

The object of re-examination is to clarify and complete any matters referred to in cross-examination and left in an ambiguous or incomplete state. It is not permitted to ask questions in re-examination unless they arise out of matters dealt with in cross-examination.

Leading Questions

A leading question is one that suggests to the witness the answer that is wanted. An advocate may not generally ask leading questions of his own witness on matters that are in contention. This is because such a witness is thought likely to agree to suggestions made to him on behalf of a person to whom the witness is probably favourable.

Previous Consistent Statement

Previous consistent statements or self-serving statements are where the witness has given a previous statement to the same effect out of court that they are giving in court. The similarities make it a consistent statement. As a general rule such self-serving statements are inadmissible on the basis that they add little to the witness' testimony to say that they have previously said the same thing. There are certain exceptions to the general rule where the previous consistent statement will be admissible, under s 120 CJA which is now evidence of the truth of the matter stated.

Previous Inconsistent Statement

A previous inconsistent statement is where the witness is not saying the same thing in court that they have said on a previous occasion out of court. The witness's testimony is inconsistent and the cross examining party will often wish to exploit any inconsistencies in testimony of the opposing party's witness in order to discredit their evidence. Consequently, a witness may be cross-examined about an earlier statement of his that is inconsistent with his testimony in court under ss 4 and 5 Criminal Procedure Act 1865: and by s 119 CJA the previous inconsistent is evidence of the truth of the matter stated.

Hostile Witness

A witness is merely 'unfavourable' if he fails to give the evidence expected of him but is telling the truth, but where he is not desirous of telling the truth to the court at the instance of the party calling him, he will be a 'hostile witness'. In order to be treated as a 'hostile witness' the party calling the witness must seek the permission of the judge, based on his determination of the witness fulfilling the definition of 'adverse' (i.e. hostile) in s 3 Criminal Procedure Act 1865 (and s 119 CJA). A witness ruled hostile by the judge may be cross-examined by the party calling him on any previous inconsistent statement and asked leading questions.

Memory Refreshing

'Refreshing memory' is generally where the witness cannot remember what they have said on a previous occasion, usually in their witness statement and they use their previous statement to remind themselves of what they said. While memory could indeed be jogged by re-reading their statement, often the events recorded were too long ago for the memory to be jogged, but the witness says that he is sure that the matters recorded are true. Statements admitted under s 139 can be evidence of the truth of the matter stated.

Sexual Behaviour

Definition: ÔSexual behaviourÕ is defined in s 42(1)(c) as Ôany sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in s 41(3)(c)(i) and (5)(a) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused.Õ In R v Mukadi [2004] it was held to be a matter of impression and common sense if a particular behaviour fulfilled the definition of Ôsexual behaviourÕ.

Exculpatory Statement

This is where the accused denies his involvement in the crime when told the accusations made against him. Such statements can be made in informal exchanges, or in the formal taped interview at the police station. It is a matter for the judge to direct the jury about the value of such statements, but they are generally admissible (albeit not as the truth of the matter stated) as evidence of the reaction of the defendant when first accused of the offence.

Chapter Six

Identification

In 1977 that Court of Appeal laid down guidelines relating to possible mistaken identification. The Court of appeal was responding to the Devlin Report which recommended that there should be no conviction in a case in which the prosecution relies wholly or mainly on the evidence of visual identification by one or more witnesses.

Recognition

Recognition is where in a case of identification evidence the witness purports to know the person, rather than to have identified a stranger. Recognition is often viewed as being of greater reliability than identification, but it will still require a Turnbull direction to the jury to warn of the possibility of mistaken recognition.

Voice Identification

Voice identification is where instead of making a visual identification the witness purports to identify or recognise a voice that they heard. This is undertaken in similar circumstances to a visual identification using a number of voices but is generally believed to be more unreliable than a visual identification as both pitch and accent are involved. The PACE Code of Practice D does not exclude applicability to voice identification.

Chapter Seven

Direct or Indirect Hearsay (First or Second-hand Hearsay)

Hearsay may be direct (or first-hand), or indirect (second-hand or multiple hearsay). Multiple hearsay is seen as the least reliable form of hearsay given the possibility of distortion, which increases the further down the chain of communication one goes.

Implied Assertion

An implied assertion or statement was recognised in the rules governing hearsay before the introduction of the Criminal Justice Act 2003. The implied aspect to the statement was that the actor may never have intended to convey anything or any particular meaning to his statement. A good example was provided of a flight attendant who asks if anyone on the aeroplane is a doctor, while the flight attendant has not specifically said that there is a medical emergency that is certainly the implication. The CJA requires the maker of the statement to have had an intent in so making to cause another person or machine to act on the basis that the fact was as stated. This requirement in s 115 CJA will rule out many implied assertions from falling within the hearsay rule today but some may survive if they fulfil the s 115 criteria.

Res gestae

The Latin expression 'res gestae' may be loosely translated as 'events occurring' or 'things happening'. If a statement is said to be part of the res gestae, what is meant is that it is an out of court statement so closely associated with the circumstances in which it was made as to guarantee a greater reliability than usual. This exception is based on the idea that if the event witnessed was a startling and dramatic event and the statement was made before there was time to think about it, there was unlikely to be any concoction or distortion and the statement was therefore likely to be reliable.

Chapter Eight

Confessions

Although confessions are out of court statements adduced to prove the truth of their contents, they are admissible as an exception to the hearsay rule under s 76(1) of the Police and Criminal Evidence Act 1984 (PACE). By s 82(1) of PACE, 'confession' includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise. An apparently wholly exculpatory statement does not amount to a confession if it becomes adverse to its maker because it appears to be evasive or because it is subsequently discovered to be false.

Mixed Statement

A mixed statement is one that has both inculpatory and exculpatory aspects, for example a statement that the defendant committed the crime but it was in self-defence. It used to be the case that the inculpatory parts were admissible as the truth of the matter stated (as confessions) but the exculpatory parts were not. Juries found this confusing and so the rule was changed to make the whole of a mixed statement admissible as the truth of the matter stated.

Oppression

For the purposes of s 76(8) PACE oppression includes torture, inhuman or degrading treatment and the use or threat of violence (whether or not amounting to torture). Further guidance was provided in R v Fulling [1987], in which Lord Lane said that the word should be given its ordinary dictionary meaning, namely: Exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens.

Chapter Nine

Character

Definition: For evidential purposes, the term 'character' can refer to a person's general reputation; their general disposition to behave in a particular way or to specific examples of misconduct, such as previous convictions. For legal purposes, a person is said to be of 'good character' if he has no previous convictions for criminal offences.

Good character

The common law rules governing the admission of evidence of good character were not affected by the repeal of bad character rules in the Criminal Justice Act 2003, note s 99(2) and 118(1) CJA. Any Ôrule of law under which in criminal proceedings evidence of reputationÕ was admissible under the pre-CJA rules is preserved, notably the rule in Rowton and the admissibility of good character and its attendant directions.

Bad Character

The definition of bad character can be found in s 98 of the Criminal Justice Act 2003. This definition applies to both defendants and non-defendants and provides that any reference to "bad character" refers to evidence of, or of a disposition towards, misconduct on his part, other than evidence which has to do with the alleged facts of the offence with which the defendant is charged, or is evidence of misconduct in connection with the investigation or prosecution of that offence.

Reprehensible Behaviour

The Criminal Justice Act 2003 does not define the notion of Ôreprehensible behaviourÕ but case law suggests that it would be something that society would condemn. In R v Weir [2005] the court found that sexually charged approaches and manipulation of women parishioners by their Hindu priest, at a vulnerable time in their lives fulfilled the definition of reprehensible behaviour even though these had not resulted in any crimes.

Propensity

The Criminal Justice Act 2002 often refers to the notion of propensity, which indicates a disposition, tendency, or an inclination for a person to behave in a particular way. In criminal cases it is often used to show that the defendant tends to behave in a certain way and so would possibly to continue to behave in that way, for example a defendant with convictions for sexual offences would then have a propensity for sexual offences and so if charged with a sexual offence that propensity can be used by the jury as a piece of evidence on the issue of guilt: the reasoning is not that once a rapist always a rapist, but that in narrowing down the field of people that committed the rape this element of the defendantÕs personality makes it a little bit more probable that he committed the rape on the occasion charged. Rarely could bad character alone be sufficient evidence to convict; the exception would be where the modus operandi of the current charge were exactly matching that of an offence for which the defendant was convicted (Yorkshire Ripper type cases).

Chapter Ten

Opinion or Expert Evidence

The general rule is that witnesses should not express opinions but should give evidence only about what they have perceived with their own senses. Where the court is required to determine issues beyond its capability then an expert witness may provide opinion evidence on that matter to the court. He will need to be suitably qualified to give that opinion and it will often be based on a particular expertise, for example fingerprint analysis.

Chapter Eleven

Privilege against self-incrimination

Section 14(1) of the Civil Evidence Act 1968, which is declaratory of the common law describes this privilege as the right of a person in any legal proceedings, other than criminal proceedings, to refuse to answer any question or produce any document or thing if to do so would tend to expose that person to proceedings for an offence or for the recovery of a penalty. Section 14 extends the privilege in civil proceedings to protect a person's spouse. At common law, the privilege was restricted to the person claiming it.

Legal Professional Privilege

Legal Professional Privilege is the privilege that attaches to certain communications between a professional legal adviser and his client or with third parties on the behalf of his client. Generally in criminal proceedings where a witness fails to answer a particular question they can be prosecuted for contempt of court.. Where a communication is subject to legal professional privilege this gives the witness a legitimate reason for not responding to the question. Privilege therefore refers to the ability to keep certain communications out of the court.

Without Prejudice

This is often a term found on certain communications where the parties are in negotiations to settle the claim. If the claims are not successfully settled during the process, they are then not allowed to be quoted to the court in any litigation; thus such statements are Ôwithout prejudiceÕ to their makers if the terms proposed are not accepted.

Public Interest Immunity

Public interest immunity (PII), formerly called 'Crown privilege', is a rule of law that requires the withholding of documents on the ground that it would be harmful to the public interest to disclose them.