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Chapter

Cover The Modern Law of Evidence

23. Admissibility of previous verdicts  

This chapter examines the circumstances in which a verdict is admissible in subsequent proceedings as evidence of the facts on which it was based. It analyses the rule in Hollington v Hewthorn & Co Ltd, which has been widely criticized, that judgments are not admissible as evidence of the facts on which they are based. Its effect, in both civil and criminal proceedings, has been largely removed by the Civil Evidence Act 1968 and the Police and Criminal Evidence Act 1984, respectively. Concerning civil proceedings, consideration is given to previous convictions generally, previous convictions in defamation proceedings, previous findings of adultery and paternity, previous acquittals, and other previous findings. Concerning criminal proceedings, consideration is given to previous convictions of the accused, previous convictions of persons other than the accused, and previous acquittals.

Chapter

Cover The Modern Law of Evidence

16. Adverse inferences from an accused’s silence or conduct  

This chapter discusses the adverse inferences that may be drawn against an accused from: his failure to testify; his failure, when questioned or charged, to mention facts which he could reasonably have been expected to have mentioned at that time and which he later relies on in his defence at trial; his failure or refusal, on arrest, to account for any object, substance, or mark that the police reasonably believe may be attributable to his participation in the commission of an offence; his refusal to consent to the taking of an intimate sample, such as a sample of blood, semen, or urine; and his failure to provide advance disclosure of the defence case, the nature of his defence, or the facts on which he takes issue with the prosecution.

Chapter

Cover Evidence

14. Alternative Pathways to Proof  

To require evidence to be called to prove every single matter requiring proof in a trial would serve no useful purpose and lead to the unnecessary prolongation of trials. On occasion, therefore, a matter may be regarded as proved even though no evidence has been adduced to prove it in the normal way. Chapter 14 examines three devices used in the law of evidence to achieve this. These are formal admissions, judicial notice, and presumptions.

Chapter

Cover Cross & Tapper on Evidence

VIII. Bad character of the accused  

This chapter takes up the discussion from the previous chapter by exploring the bad character of the accused. This subject matter is almost wholly governed by certain provisions in the Criminal Justice Act 2003. Thus, the chapter first considers the nature of the problem of the admission of evidence of the bad character of the accused; then attempts at reform, at common law, by recommendations of law reform bodies, and by legislation; an indication of the principal forms of continuing dissatisfaction; and finally the intentions and techniques designed to remedy them. Next, the chapter considers the structure of the bad character provisions from the 2003 legislation and the gateways it provides for admissibility. Finally, this chapter concludes with a brief appraisal of the 2003 act.

Chapter

Cover The Modern Law of Evidence

3. The burden and standard of proof  

This chapter discusses the rules governing which party bears the legal and evidential burdens on which facts in issue. These rules can determine the eventual outcome of proceedings; determine which party has the right to begin adducing evidence in court; in what circumstances a defendant, at the end of the case for the prosecution, or claimant, may make a successful submission of no case to answer; and how the trial judge should direct the jury. The chapter begins by defining and distinguishing the legal, evidential, and other burdens, and then considers in detail which burden is borne by each of the parties on the various facts in issue in any given case. The chapter also considers the standard of proof in criminal proceedings where the burden is on the prosecution and on the accused. The standard of proof in civil proceedings is also considered.

Chapter

Cover Evidence

2. Burden and Standard of Proof  

Chapter 2 is divided into two parts. The first part is concerned with the manner in which a dispute as to which party bears the burden of proving a particular issue in a trial should be resolved. The question may arise in a criminal trial as to whether it is the prosecution or defence which bears the burden of proving a certain issue, and in a civil trial as to whether it is the claimant or defendant who bears the burden of proving a certain issue. The second part focuses on the standard to which the burden of proving a particular issue requires to be discharged.

Chapter

Cover Murphy on Evidence

4. The burden and standard of proof  

This first part of the chapter discusses the concept of burden of proof, covering the legal or persuasive burden of proof; the evidential burden; the effect of presumptions on the burden of proof; the legal burden of proof in civil cases; the evidential burden in civil cases; the burden of proof in criminal cases; defence burdens of proof before Lambert; defence burdens of proof after Lambert; and the burden of proof of secondary facts. The second part of the chapter discusses the standard of proof, covering standard of proof required of prosecution in criminal cases; standard of proof required of defence; standard of proof of secondary facts; the standard of proof in civil cases; and the standard of proof in matrimonial and family cases.

Chapter

Cover Concentrate Questions and Answers Evidence

2. Burden and standard of proof: Presumptions  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

Chapter

Cover Evidence Concentrate

2. Burden of proof  

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 (HRA) on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examSination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. The leading cases on the standard of proof in civil cases are reviewed.

Chapter

Cover Cross & Tapper on Evidence

III. Burdens and proof  

This chapter considers the burdens borne by both parties when an issue of fact is at stake. It explains how the nature of a burden in the law of evidence is obscured by the use of the term in a number of different senses. The two principal senses are the burden of adducing evidence and the burden of proving facts. In relation to each, questions arise as to its incidence and discharge. The chapter considers the allocation of the burden in these two senses, at common law and under statutory provisions, and the effects of presumptions of law or agreement of the parties. Finally, this chapter is concerned with the extent of the two burdens, and the way in which the burden of proof has to be explained to the jury.

Chapter

Cover Concentrate Questions and Answers Evidence

4. Character  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter concerns a complex question in criminal evidence: situations where defendants may adduce evidence of good character to suggest lack of guilt and support credibility, and those where prosecution counsel or counsel for the co-defendant may cross-examine them on previous ‘reprehensible’ behaviour. The exclusionary rule was fundamental to the English legal system and founded on the principle that the defendant should have a fair trial. The Criminal Justice Act (CJA) 2003 made comprehensive changes to the rules of admissibility of evidence of bad character of the defendant and witnesses providing that ‘the common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished’. There is now a presumption of admissibility of that evidence.

Chapter

Cover Evidence

6. Character and credibility  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following: issue and credit; the concept of ‘credibility’; and bringing out the character of the parties and their witnesses. Evidence introduced to illuminate someone’s character is a fairly common feature in both civil and criminal trials. Considerable restrictions apply in criminal cases since the Criminal Justice Act 2003. According to the context, however, it may fulfil different purposes. Notably, it may serve as a potential indicator of whether or not someone is likely to be a truthful witness.

Chapter

Cover Evidence Concentrate

5. Character evidence  

This chapter, which focuses on the admissibility and evidential worth of character evidence, explains the definition of bad character under the Criminal Justice Act 2003 (CJA). It examines how bad character evidence of the defendant may be admitted through one of the ‘gateways’ under the Act. It reviews the evidential worth of the character evidence if admitted and explains the difference between propensity and credibility. The law on the admissibility of the bad character of non-defendant witnesses is explained and the reasons for a more protective stance highlighted. The chapter concludes with a review of the admissibility of good character evidence, governed by the common law.

Chapter

Cover Evidence

10. Character Evidence  

Chapter 10 begins with a discussion of the relevance of evidence of character. It then deals with the admissibility of character evidence in civil and criminal proceedings. In civil cases, the admissibility of evidence of a party’s bad character is governed simply by the test of relevance. In criminal proceedings, the entitlement of a defendant to a direction on the significance of his or her good character is taken seriously. The Criminal Justice Act 2003 now provides a comprehensive statement of the law on evidence of bad character in criminal proceedings.

Chapter

Cover Murphy on Evidence

14. Character evidence I  

Character evidence generally; in civil cases; evidence of good character

This chapter is divided into three sections. The first section discusses the uses and development of character evidence from the common law through to the codification provided by the Criminal Justice Act 2003. The second section deals with evidence of character in civil cases, covering defamation cases; evidence of good character; and evidence of bad character. The third section focuses on evidence of good character in criminal cases, including the important case of Hunter [2015] 1 WLR 5367, and covers admissibility and methods of proof; kinds of evidence permitted; rebuttal of evidence of good character; and evidential value of evidence of good character.

Chapter

Cover Murphy on Evidence

15. Character evidence II  

Evidence of bad character

This chapter discusses the evidence of bad character in criminal cases since the abolition of the common law rules relating to it. It covers the definition of bad character under ss. 98 and 112 of the Criminal Justice Act 2003; evidence of bad character of accused and the admissible gateways under s. 101; evidence of bad character of persons other than accused under s. 100; safeguards in relation to evidence of bad character under s. 103; and other statutory provisions dealing with bad character, in particular those dealing with sexual history questioning: s. 41 of the Youth Justice and Criminal Evidence Act 1999.

Chapter

Cover Cross & Tapper on Evidence

VII. Character in general  

This chapter examines the evidence of the character of parties, witnesses, and third parties. Evidence of character has never been a model of coherence or clarity either at common law or under statute. It is complex, both in the connotation and means of proof of the concept of character, and in the variety of contexts in which it arises. The concept embraces both disposition, commonly described as propensity, to act in a relevant way, and sometimes the means of proof of such relevant disposition, either through reputation, the expressed belief of others of the subject's disposition, or of acts of the subject from which such disposition may be inferred. It may be relevant in any form of proceedings, and at any stage of a trial.

Chapter

Cover Evidence Concentrate

7. Competence, compellability, and special measures  

This chapter focuses on the competence and compellability of witnesses in criminal and, in outline, in civil trials. It explains the main criminal law exceptions in relation to competence and universal compellability. It gives details on the complex and controversial position under s80 of the Police and Criminal Evidence Act (PACE) 1984. The chapter outlines the special measures directions (SMDs) available under the Youth Justice and Criminal Evidence Act (YJCAE) 1999 for vulnerable non-defendant witnesses in criminal trials. The more limited measures for vulnerable defendants are outlined, in particular the use of intermediaries. The chapter concludes with an outline of the Criminal Evidence (Witness Anonymity) Act 2008.

Book

Cover Concentrate Questions and Answers Evidence
The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. Concentrate Q&A Evidence offers expert advice on what to expect from your Evidence exam, how best to prepare and guidance on what examiners are really looking for. Written by experienced examiners, it provides clear commentary with each question and answer and bullet points and diagram answer plans plus tips to make your answer really stand out from the crowd and further reading suggestions at the end of every chapter. The book should help the reader identify typical law exam questions, structure a first-class answer, avoid common mistakes, show the examiner what the reader knows and find relevant further reading. After an introduction, the book covers burden and standard of proof, presumptions, competence and compellability, Special Measures Directions, character evidence, hearsay, confessions, the defendant’s silence, improperly obtained evidence, supporting evidence, identification expert opinion, issues in the course of trial, privilege, public policy and mixed questions. The final chapter gives guidance on assessed coursework. The book is suitable for undergraduate law students taking optional modules in Evidence.

Chapter

Cover The Modern Law of Evidence

15. Confessions  

This chapter discusses the admissibility of confessions under the Police and Criminal Evidence Act 1984 (the 1984 Act). It considers how, under s 76(2) of the 1984 Act, confessions may be excluded as a matter of law where obtained by oppression or in consequence of something said or done which was likely to render any such confession unreliable. It also considers the discretion to exclude confessions under s 78(1) of the 1984 Act; the effect of breaches of the Codes of Practice issued under the 1984 Act; the voir dire; statements made in the presence of the accused; and facts discovered in consequence of inadmissible confessions.