Evidence is information by which facts tend to be proved, and the law of evidence is that body of law and discretion regulating the means by which facts may be proved in both courts of law and tribunals and arbitrations in which the strict rules of evidence apply. This introductory chapter discusses truth and the fact-finding process and explains how getting to the truth in court is hampered by practical constraints, the adversarial system, the rules of evidence themselves, and the fact that litigation is a human endeavour that necessarily provides scope for differences of opinion, error, deceit, and lies. The chapter also contains a brief history of the development of the law to date.
12
Chapter
1. Introduction
Book
Richard Glover
Murphy on Evidence is firmly established as a leading text for use on undergraduate law courses and in preparation for professional examinations. Frequently consulted by judges and practitioners, and regularly cited in judgments, it has come to be regarded as a work of authority throughout the common law world. The book’s unique approach effectively bridges the gap between academic study of the law of evidence and its application in practice, combining detailed analysis of the law with a wealth of practical information about how it is used in the courtroom. As in previous editions, the author’s teaching method is centred around two realistic case studies—one criminal and one civil—presenting challenging evidence issues and questions for discussion at the end of each chapter. The case study material for this new edition has been further developed with new videos on the Online Resource Centre. Fully up to date with the latest developments in this fast-moving subject, the fifteenth edition of Murphy on Evidence is as indispensable as its predecessors. Topics include: the language of the law of evidence; the judicial function in the law of evidence; the burden and standard of proof; character evidence; and the rule against hearsay.
Chapter
10. The rule against hearsay I
Scope and working of the rule
This chapter is divided into two parts. The first part discusses the rule against hearsay, covering the definition of hearsay; the dangers of hearsay evidence; the development of exceptions and reform of rule. The second part explains how the hearsay rule operates by distinguishing hearsay and non-hearsay statements and, therefore, discusses: a statement having legal effect or significance; a statement admissible to prove that it was made or was made on a particular occasion or in a certain way; a statement as circumstantial evidence of state of mind; a statement as circumstantial evidence of other relevant facts; three classic hearsay problems; and the use of avoidance and evasion.
Chapter
16. Previous judgments as evidence
The common law adopted the position that previous judgments should not be admissible as evidence of the truth of the facts on which they are based, as against strangers to the judgment. However, given the evidential value of previous judgments, the following cases must be distinguished: (a) judgments as evidence of their own existence, content, and legal effect; (b) judgments as evidence of the truth of facts on which they are based, as between the parties to the proceedings in which the judgment was given, and their privies; and (c) judgments as evidence of the truth of facts on which they are based, as between strangers to the proceedings in which the judgment was given, or as between parties to the proceedings (or their privies) and strangers. This chapter discusses cases (a) and (c).
Chapter
13. The rule against hearsay IV
The accused’s denials and silence
The rules applicable to confessions are not necessarily applicable to all statements made by a suspect when confronted with his suspected involvement in an offence, because not all such statements are even partly inculpatory. Two situations are of particular importance: those in which the accused denies the allegations put to him, and those in which he remains silent in the face of the allegations. This chapter discusses the following: the accused’s denials; the accused’s silence at common law; the accused’s failure to mention facts when questioned or charged; the accused’s failure to account for objects, substances, or marks; and the accused’s failure to account for their presence at the scene of the offence.
Chapter
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
I. Introduction
This introductory chapter discusses the relevance of evidence in the courtroom. It first explores the development of the law of evidence beginning from the seventeenth and eighteenth centuries. The chapter then studies the extent to which the law of evidence applies to all of the different stages and matters considered by the courts and to other tribunals. The main purposes and categories of evidence are next considered and exemplified, together with the question of whether any broad general rules can usefully be elaborated. Finally, this chapter turns to its most fundamental principle — relevance, which is contrasted with the admissibility of evidence.
Chapter
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
1. Introduction
Evidence is information by which facts tend to be proved, and the law of evidence is that body of law and discretion regulating the means by which facts may be proved in both courts of law and tribunals and arbitrations in which the strict rules of evidence apply. This introductory chapter discusses truth and the fact-finding process and explains how getting to the truth in court is hampered by practical constraints, the adversarial system, the rules of evidence themselves, and the fact that litigation is a human endeavour that necessarily provides scope for differences of opinion, error, deceit, and lies. The chapter also contains a brief history of the development of the law to date.
Chapter
10. The rule against hearsay
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. The rule against hearsay is one of the great exclusionary rules of the law of evidence. In a system that places a premium on orality, with witnesses delivering their testimony in person, it is an understandable corollary that witness A should often be forbidden from giving testimony on behalf of witness B. This chapter discusses the following: the rationale underlying a rule against hearsay; the hearsay rule in criminal cases, and its many exceptions, both at common law and under statute; and the remnants of the hearsay rule in civil proceedings.
Chapter
17. Opinion evidence
This chapter discusses the following: the general rule of common law that the opinion of a witness is inadmissible, and the exceptions for evidence of general reputation, the opinion of an expert witness within his area of expertise, and the opinion of any witness as a way of conveying facts within the competence of members of the public generally which do not call for specialized knowledge; principles of admissibility; competence; independence and objectivity; the weight of expert opinion evidence; the function of expert evidence; materials used by experts in forming their opinion; expert reports; common subjects of expert evidence; and the admissibility of non-expert opinion evidence. The developments since the Law Commission report on Expert Evidence (No. 325) are addressed, as are the impact of the Criminal Procedure Rules 2015 and the Criminal Practice Direction.
Chapter
12. The rule against hearsay III
Admissions and confessions
Admissions and confessions are the most important common law exceptions to the rule against hearsay. Section 118(1) of the Criminal Justice Act 2003 preserves any rule of law relating to the admissibility of admissions made by agents in criminal proceedings. This chapter is divided into two parts, the first of which discusses admissions, covering the principles of admissibility; what admissions may bind a party; and what may be proved by admission. The second part deals with confessions, covering the admissibility of confessions; the exclusion of confessions; evidence yielded by inadmissible confessions; excluded confessions as relevant non-hearsay evidence; confessions by the mentally handicapped and those otherwise impaired; the Codes of Practice and the discretionary exclusion of confessions; the use of confessions by co-accused; confessions implicating co-accused; and partly adverse (‘mixed’) statements.
Chapter
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
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.
Book
Roderick Munday
Cross & Tapper on Evidence has become firmly established as a classic of legal literature. This thirteenth edition reflects on all recent changes and developments in this fast-moving subject. In particular, it fully examines new case law relevant to evidence of privilege, character, and hearsay. The inclusion of some comparative material provides an excellent basis for the critical appraisal of English law. This book remains the definitive guide to the law of evidence.
Chapter
13. Witnesses
Chapter 13 examines three broad issues pertaining to witnesses. First, it considers whether certain categories of persons may be incompetent to testify, or, even if competent to testify, may not be compellable to do so. It then examines the relaxation of the rules on corroboration, and the emergence of a more contemporary approach to possibly unreliable witnesses. Finally, it investigates the availability and adequacy of any special measures or procedures for easing the burden on testifying witnesses.
Chapter
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
11. The rule against hearsay II
Common law and statutory exceptions
This chapter discusses the statutory exceptions to the inadmissibility of hearsay evidence in criminal cases that were created by the Criminal Justice Act 2003. The impact of the Human Rights Act 1998 on the admissibility of hearsay evidence is discussed, including the important cases of Horncastle and Al-Khawaja and Tahery v United Kingdom, where the Supreme Court and the European Court of Human Rights came into conflict over whether an accused may be convicted where the ‘sole and decisive’ evidence against him is hearsay. The common law exceptions preserved by the Criminal Justice Act 2003 are then considered—res gestae. The chapter ends with discussion of the abolition of hearsay in civil proceedings by the Civil Evidence Act 1995.
Chapter
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
11. Hearsay Evidence
Chapter 11 discusses the law on hearsay evidence. It covers the admissibility of hearsay evidence in civil proceedings, now governed by the Civil Evidence Act 1995; other proceedings in which the hearsay rule is inapplicable; and the admissibility of hearsay evidence in criminal proceedings.
12