Evidence Lawcards 2012-2013

Routledge

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136595264
• Edition: 7
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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Titles in the Series: Commercial Law; Company Law; Constitutional Law; Contract Law; Criminal Law; Employment Law; English Legal System; European Union Law; Evidence; Equity and Trusts; Family Law; Human Rights; Intellectual Property Law; Jurisprudence; Land Law; Tort Law

Relevance, admissibility
and weight

Basic concepts
Human rights and the law of evidence
Evidential forms
Relevance, admissibility and weight
Functions of a judge and jury
Disclosure

BASIC CONCEPTS

DEFINITION OF ‘EVIDENCE’

The meaning of ‘evidence’ depends to some extent on context, but the word is often used to refer to any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion of the existence or non-existence of some other matter of fact.

In a practical sense, evidence is material presented to the court in order to persuade the fact-finder (judge and/or jury) of the probability of a particular fact.

The law of evidence commonly deals with issues of:

How evidence has been obtained

Whether evidence can be adduced at trial

How evidence is adduced at the trial

How evidence can be used by the fact-finder

How the fact-finder should evaluate the evidence.

At one extreme of evidential theory is for the court to admit all relevant evidence and leave issues of weight and probative value to the fact-finder to decide when making its deliberations. This is the notion of ‘free proof’ and was advocated by Jeremy Bentham. Most states, however, take a much narrower view of the evidence that can be admitted at trial, and so the law of evidence becomes concerned with rules of admissibility (or rather, exclusionary rules). Many of the rules of admissibility of evidence, therefore, take the form of a general exclusionary rule with a number of exceptions allowing admissibility under certain conditions. The general rules of exclusion tend to concern particular categories of evidence that are deemed to be too prejudicial for the defendant or witness. Some rules of admissibility include a judicial discretion to admit the evidence, or require a warning of caution to be given to the jury in how they should handle that particular piece of evidence or evaluate it. Some rules may also involve an evaluation of the other evidence in the case before that piece of evidence can be admitted.

Consequently, not all evidence is admissible. The law of evidence determines if a relevant piece of evidence will ultimately be admissible and what the fact-finder can use that evidence to prove or disprove.

Where the law creates a rule of exclusion for a particular type of evidence (eg hearsay) it is important to understand why that rule has evolved. The answer will usually be because that particular type of evidence has a tendency to be unreliable, and hence the fact-finder may place too much weight on the evidence when it does not warrant it. A second common reason for exclusionary rules is prejudicial effect, meaning that the revelation of that piece of evidence to the fact-finder (eg jury) may cause it to pre-judge the issue of guilt, for example if the jury knew the defendant had previous criminal convictions for very similar offences. The law of evidence also follows other areas of the law in restricting the admission of evidence on the basis of public policy. One such example is the exclusion of confessions obtained by violence or threats of violence; this rule also complies with human rights obligations.

HUMAN RIGHTS AND THE LAW OF EVIDENCE

Naturally, since the enactment of the 1998 Human Rights Act, a rights-based approach has been taken to issues of admissibility of evidence. The main focus for the law of evidence within the European Convention on Human Rights is Article 6 governing the right to a fair trial, which concerns both civil and criminal cases. There is also Article 3 prohibiting torture or inhuman or degrading treatment or punishment, Article 5 concerning the right to liberty and security of the person, particularly detention, and Article 8 concerning respect for private and family life.

Article 6 applies even before trial and so can cover issues such as the way in which evidence was collected. Note the following key provisions:

Article 6(1) stipulates that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.

Article 6(2) stipulates the principle of innocence until proven guilty.

Article 6(3) includes the aspects of legal advice and the examination of witnesses giving evidence against the defendant.

The European Court of Human Rights has built up a large body of case law governing Article 6. The general approach of the Court towards the law of evidence in a given Member State is not to issue specific rules of admissibility but to ensure that in a given case the right to a fair trial was not breached. Inevitably these rulings have impacted on the design of admissibility laws within the Member States.

TEIXEIRA DE CASTRO v PORTUGAL [1998]

Basic facts

Undercover officers in anti-drug trafficking operations in Portugal encouraged the defendant to procure drugs for them. The question was whether the officers had acted as ‘agents provocateurs’, in inducing the defendant to commit an offence he would not otherwise have committed.

Relevance

Finding a violation of Article 6(1) the Court held, ‘The admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair’.

EVIDENTIAL FORMS

ORAL OR TESTIMONIAL EVIDENCE

This is evidence spoken orally during the trial but does not necessarily require a ‘live’ performance. Video-recorded witness statements are often presented in court as a witness’ evidence. Similarly, evidence can be given via ‘live link’ from another room in the court, or another location beyond the court. In some situations testimonial evidence need not be oral at all, but written. For example, in civil cases witnesses will usually give their evidence in writing (see the Civil Procedure Rules 1998). Most witnesses will present their oral testimony under oath of affirmation but some do not, particularly child witnesses. A witness may give oral evidence of events that he has seen, or heard, or of which he has acquired knowledge. Examples include the oral testimony of a witness to having seen the defendant shoot the victim, or having seen the defendant in a particular location, or having heard screams.

DOCUMENTARY EVIDENCE

This is evidence in written or recorded form (eg film) which is used as evidence of its contents. A ‘document’ is defined as ‘anything in which information of any description is recorded’ (s 134 of the Criminal Justice Act 2003, and s 13 of the Civil Evidence Act 1995). Examples include, a surveillance video which shows the defendant punching the victim, a will or contract, or telephone/computer records.

REAL EVIDENCE

This is evidence that is physically produced in court so that its nature can be inspected. Examples include weapons, the fact that the defendant is left-handed, a blood-stained document, items of clothing, photographs of the crime scene, and the demeanour of a witness whilst giving oral evidence. If the thing to be inspected cannot be brought into the court because it is too big, for example a house, the judge and jury may be required to view the evidence by visiting it. The evidence gathered during the visit to the location will then form part of the evidence in the case.

HEARSAY EVIDENCE

Hearsay is defined in s 1(2) of the Civil Evidence Act 1995 and in ss 114 and 115 of the 2003 Criminal Justice Act to mean a statement, not made in oral evidence in the proceedings, that is relied on a...