13/11/2019
CRIMINAL LITIGATION
Evidence, Hearsay & Confessions
Evidence
• Evidence is the material presented to court in order to persuade the magistrates/jury of a particular fact
Evidential Forms
• Oral testimony – evidence of witnesses coming to court and speaking from the witness box. Evidence is given by
evidence in chief. May be subjected to cross-examination and re-examination. Leading questions are not
permitted in evidence in chief. Non-expert witnesses are witnesses of fact.
• Documentary evidence – maps, plans, photographs, entries in business ledgers, invoices etc… evidence of fact will
be needed to authenticate these documents – need an authenticating statement.
• Real evidence – objects found in a search. Real time footage of an incident found on CCTV, evidence needs to be
authenticated with other evidence of fact.
Evidence must be…
• Relevant – not all relevant evidence is admissible, rules are based on the need for fairness and reliability in the
court proceedings.
• Admissible
Relevant to what?
• Facts in Issue – matters at the heart of the criminal trial. Whether D committed the alleged offence.
• Facts the prosecution must prove – they hold the burden of proof and must prove guilt beyond a reasonable
doubt
• Facts the defence must prove – balance of probabilities e.g. the proving of a reasonable excuse or the proof of
diminished responsibility / insanity.
Relevance and Weight of evidence
• Relevance = Judge – decides relevance and admissibility
• Weight = Jury – decides the weight to be given to a piece of evidence to determine how they use this evidence in
proving guilt or innocence
Admissibility
• Judges = Make decisions about admissibility of evidence
• Juries = Make decisions about the facts and whether the D is guilty or not, even against the judge or not. Judges
may direct acquittals
Burden of Proof
• Prosecution - Beyond reasonable doubt. They bring the case, and prove it beyond a reasonable doubt to satisfy
the jury.
• Reverse onus - Balance of probabilities
, 13/11/2019
Competence and Compellability
• Who is competent to give evidence in a criminal trial?
Can they understand the question?
Can they give answers which are understood?
• Youth Justice and Criminal Evidence Act 1999
S.53(1) – at every stage in criminal proceedings, all persons, whatever their age, are competent to give evidence.
S.53(3) – person is not competent if it appears to the court that he is not a person who is able to understand questions
put to him as a witness and/or give answers to them which can be understood
Special Rules
• Defendants
• Children
• Persons with a disorder or disability of the mind
• Defendant’s spouse/civil partner
Defendants
• S.1(1) Criminal Evidence Act 1988 – a D is competent to give evidence on his own behalf, they cannot be
compelled to give evidence though, if they do not, the judge will direct the jury to draw inferences from the D’s
silence
o S.35 CJOPA – inferences from silence
• S.53(4) YJCEA 11999 – accused is not compelled to give evidence for the prosecution, if he has pleaded guilty to
an offence he may give evidence for the prosecution, a co-accused may be asked to give evidence for the
prosecution, if he has pleaded guilty to an offence.
• For Prosecution
o Not competent
o Not compellable
• For Defence
o Competent
o Not compellable
Children
• If a child can understand questions and answer them, they are competent to give evidence.
• Barker (2010) Crim 4 – the question is witness specific. The witness does not need to understand the special
importance of telling the truth in court. The child must be able to answer the question from both sides, the court
needs to make a judgement whether s.53(3) is satisfied
• S.56 YJCEA 1999 – unsworn evidence of a competent witness to be given before the court.
CRIMINAL LITIGATION
Evidence, Hearsay & Confessions
Evidence
• Evidence is the material presented to court in order to persuade the magistrates/jury of a particular fact
Evidential Forms
• Oral testimony – evidence of witnesses coming to court and speaking from the witness box. Evidence is given by
evidence in chief. May be subjected to cross-examination and re-examination. Leading questions are not
permitted in evidence in chief. Non-expert witnesses are witnesses of fact.
• Documentary evidence – maps, plans, photographs, entries in business ledgers, invoices etc… evidence of fact will
be needed to authenticate these documents – need an authenticating statement.
• Real evidence – objects found in a search. Real time footage of an incident found on CCTV, evidence needs to be
authenticated with other evidence of fact.
Evidence must be…
• Relevant – not all relevant evidence is admissible, rules are based on the need for fairness and reliability in the
court proceedings.
• Admissible
Relevant to what?
• Facts in Issue – matters at the heart of the criminal trial. Whether D committed the alleged offence.
• Facts the prosecution must prove – they hold the burden of proof and must prove guilt beyond a reasonable
doubt
• Facts the defence must prove – balance of probabilities e.g. the proving of a reasonable excuse or the proof of
diminished responsibility / insanity.
Relevance and Weight of evidence
• Relevance = Judge – decides relevance and admissibility
• Weight = Jury – decides the weight to be given to a piece of evidence to determine how they use this evidence in
proving guilt or innocence
Admissibility
• Judges = Make decisions about admissibility of evidence
• Juries = Make decisions about the facts and whether the D is guilty or not, even against the judge or not. Judges
may direct acquittals
Burden of Proof
• Prosecution - Beyond reasonable doubt. They bring the case, and prove it beyond a reasonable doubt to satisfy
the jury.
• Reverse onus - Balance of probabilities
, 13/11/2019
Competence and Compellability
• Who is competent to give evidence in a criminal trial?
Can they understand the question?
Can they give answers which are understood?
• Youth Justice and Criminal Evidence Act 1999
S.53(1) – at every stage in criminal proceedings, all persons, whatever their age, are competent to give evidence.
S.53(3) – person is not competent if it appears to the court that he is not a person who is able to understand questions
put to him as a witness and/or give answers to them which can be understood
Special Rules
• Defendants
• Children
• Persons with a disorder or disability of the mind
• Defendant’s spouse/civil partner
Defendants
• S.1(1) Criminal Evidence Act 1988 – a D is competent to give evidence on his own behalf, they cannot be
compelled to give evidence though, if they do not, the judge will direct the jury to draw inferences from the D’s
silence
o S.35 CJOPA – inferences from silence
• S.53(4) YJCEA 11999 – accused is not compelled to give evidence for the prosecution, if he has pleaded guilty to
an offence he may give evidence for the prosecution, a co-accused may be asked to give evidence for the
prosecution, if he has pleaded guilty to an offence.
• For Prosecution
o Not competent
o Not compellable
• For Defence
o Competent
o Not compellable
Children
• If a child can understand questions and answer them, they are competent to give evidence.
• Barker (2010) Crim 4 – the question is witness specific. The witness does not need to understand the special
importance of telling the truth in court. The child must be able to answer the question from both sides, the court
needs to make a judgement whether s.53(3) is satisfied
• S.56 YJCEA 1999 – unsworn evidence of a competent witness to be given before the court.
