The Law of Evidence

Citation

Dennis, I. H. (2017). The Law of Evidence (6th ed.). Sweet & Maxwell.

Chapter Summary

Preface to the Sixth Edition

The preface outlines significant updates and developments incorporated in the sixth edition of The Law of Evidence. It emphasizes changes in legislation, case law, and practices, particularly concerning vulnerable witnesses, expert evidence, and hearsay evidence. The edition also includes dedications and acknowledgments, noting the contributions of the late Mike Redmayne.

Part I: Understanding Evidence: The Foundations of the Law

An Introduction to the Law of Evidence

This chapter covers fundamental concepts such as materiality, relevance, and admissibility. It distinguishes between civil and criminal proceedings and explores the development of the law of evidence through legislative reforms and recent case law.

The Aims of the Law of Evidence

Discusses the rationalist model of adjudication, individual rights, and the impact of the Human Rights Act 1998 on evidence law. It emphasizes the balance between procedural fairness, avoidance of error, and the pursuit of other legal values.

Relevance and Admissibility

This chapter delves into the principles of relevance, logical relevance, and exclusionary discretion in criminal cases. It includes case studies and a detailed analysis of exclusionary rules and judicial discretion under PACE s.78.

Facts and Factfinding

Explores the distinction between questions of fact and law, legal controls on factfinding, and theories of factfinding, including Wigmorean analysis, mathematical models, and narrative techniques.

Part II: Obtaining Evidence: Pre-Trial Procedures and the Regulation of Access

The Privilege Against Self-Incrimination and the Right to Silence

Examines the relationship between self-incrimination and the right to silence, statutory restrictions, and the influence of the ECHR. It discusses the implications of silence during police interrogations and at trial.

Confessions

Covers the admissibility of confessions under s.76 of PACE, procedural issues, reliability, and discretionary exclusion. It also addresses the relevance of confessions for their truth and subsequent fact discovery.

Identification Evidence

Discusses problems with eyewitness identification, psychological research, legal responses, and evaluation of identification evidence using the Turnbull guidelines.

Evidence Obtained by Illegal or Unfair Means

Reviews common law and statutory discretions to exclude evidence obtained unlawfully or unfairly, including breaches of PACE and entrapment issues.

Disclosure and Immunity

Addresses disclosure obligations in civil and criminal cases, public interest immunity, and legal professional privilege.

Legal Professional Privilege

Discusses the scope and limitations of lawyer-client privilege and litigation privilege, including the loss of privilege under certain conditions.

Part III: Adducing Evidence: Trial Procedures and the Principles of Proof

Burden and Standard of Proof

Defines the concepts of burden and standard of proof, and their allocation in criminal and civil cases. It also addresses the presumption of innocence and reverse onuses.

Forms of Proof and Alternatives to Proof

Covers testimony, documentary evidence, real evidence, formal admissions, presumptions, and judicial notice.

Witnesses

Explores the competency and compellability of witnesses, including children, mentally disabled persons, and the accused.

Examination of Witnesses

Discusses procedures and principles of examination-in-chief, cross-examination, and re-examination, including leading questions and refreshing memory.

Vulnerable and Suspect Witnesses

Focuses on special measures for vulnerable witnesses, rules for suspect witnesses, and corroboration requirements.

Part IV: Using Evidence: The Scope and Limits of Exclusionary Rules

Hearsay at Common Law and in Civil Proceedings

Examines the common law hearsay rule, its rationale, and statutory reforms in civil cases.

The Modern Law of Hearsay in Criminal Cases

Analyzes the statutory scheme under the Criminal Justice Act, exceptions to the hearsay rule, and compliance with ECHR art.6.

Character and Credibility: An Overview

Reviews the relevance and prejudicial effects of character evidence, judicial directions, and the psychology of bad character evidence.

Evidence of Bad Character in Criminal Cases

Details the admissibility of bad character evidence under the Criminal Justice Act, including specific gateways and principles of interpretation.

Opinion and Expert Evidence

Discusses non-expert and expert opinion evidence, the role and reliability of experts, and the ultimate issue rule.

Key Concepts

1. Evidence, Inference, and Proof

Materiality: Importance of facts that directly affect the outcome of the case.

Relevance: Determines which evidence can be considered based on its logical connection to the facts in issue.

Admissibility: Criteria under which evidence is allowed to be presented in court, influenced by statutory and case law.

2. The Rationalist Model of Adjudication

Procedural Fairness: Ensures that evidence is gathered and presented in a manner that is fair to all parties.

Avoidance of Error: Emphasizes methods to minimize wrongful convictions and errors in judgment.

Balancing Objectives: Weighs the need for accurate fact-finding against the costs of obtaining evidence and protecting individual rights.

3. Hearsay Evidence

Definition: Statements made outside of court presented to prove the truth of the matter asserted.

Exceptions: Various statutory exceptions allow hearsay to be admitted, including statements made under spontaneous circumstances, business records, and declarations against interest.

Art. 6 ECHR: Ensures that hearsay evidence does not infringe on the defendant’s right to a fair trial.

4. Burden and Standard of Proof

Burden of Proof: Responsibility placed on a party to prove or disprove a fact.

Legal Burden: Usually lies with the prosecution in criminal cases.

Evidential Burden: Shifts during the trial based on the evidence presented.

Standard of Proof: Level of certainty required to prove a fact.

Criminal Cases: Beyond a reasonable doubt.

Civil Cases: Balance of probabilities.

5. Privilege Against Self-Incrimination and Right to Silence

Common Law: Protects individuals from being compelled to testify against themselves.

Statutory Modifications: Adjustments through legislation, such as the Youth Justice and Criminal Evidence Act 1999.

ECHR Influence: Ensures compliance with international human rights standards.

6. Identification Evidence

Eyewitness Testimony: Reliability issues, psychological research on memory accuracy.

Code D: Legal framework guiding the obtaining and use of identification evidence.

Turnbull Guidelines: Judicial guidelines to evaluate the credibility of eyewitness identification.

7. Expert Evidence

Admissibility: Governed by whether the evidence will assist the court and is based on sufficient expertise.

Reliability Test: Ensures expert testimony is based on reliable principles and methods.

Ultimate Issue Rule: Expert witnesses should not provide opinions on the final issue the court must decide.

8. Exclusionary Rules and Discretion

PACE s.78: Allows for the exclusion of evidence if its admission would have an adverse effect on the fairness of proceedings.

Judicial Discretion: Courts have the power to exclude evidence that is more prejudicial than probative.

9. Vulnerable Witnesses

Special Measures: Legal provisions to assist vulnerable witnesses, such as video-link testimony and use of intermediaries.

Youth Justice and Criminal Evidence Act 1999: Key legislation providing protections for vulnerable witnesses.

10. Character Evidence

Good Character: Can be used to support the credibility of the defendant.

Bad Character: Can be introduced under specific gateways provided by the Criminal Justice Act 2003, including when it is relevant to an important matter in issue or when the defendant attacks another’s character.

Critical Analysis

1. Evidence, Inference, and Proof

The interplay between materiality, relevance, and admissibility forms the backbone of the evidentiary process in both civil and criminal proceedings. One critical aspect is the balancing act courts must perform to ensure that evidence admitted is both relevant and not overly prejudicial. The principle of materiality ensures that only significant facts are considered, but it can also be a subjective judgment, leading to potential inconsistencies in rulings.

2. Rationalist Model of Adjudication

The rationalist model’s focus on procedural fairness and error avoidance highlights the importance of a structured approach to evidence. However, the rigidity of this model can sometimes hinder the pursuit of justice, especially in cases where procedural rules might exclude crucial evidence. The model’s emphasis on balancing objectives is crucial, but it also presents a constant challenge: ensuring that the judicial process remains fair while being efficient and thorough.

3. Hearsay Evidence

Hearsay is one of the most complex areas of evidence law due to its potential to undermine the adversarial process. The numerous exceptions to the hearsay rule, such as spontaneous statements and business records, reflect the law’s attempt to accommodate practical realities while maintaining reliability. However, the European Convention on Human Rights (ECHR) imposes additional layers of scrutiny, ensuring that hearsay does not compromise the defendant’s right to a fair trial. The tension between domestic law and international human rights standards can lead to complex legal dilemmas.

4. Burden and Standard of Proof

The distinction between the legal burden and the evidential burden is fundamental but often misunderstood. The high standard of proof in criminal cases (“beyond a reasonable doubt”) is designed to protect against wrongful convictions, reflecting the principle that it is better to let a guilty person go free than to convict an innocent one. In contrast, the lower standard in civil cases (“balance of probabilities”) aligns with the different objectives of civil justice, primarily compensatory rather than punitive. This dichotomy, while logical, can sometimes create challenges in cases where both civil and criminal liabilities are at play.

5. Privilege Against Self-Incrimination and Right to Silence

These protections are cornerstones of common law but are continually tested by legislative changes and judicial interpretations. Statutory modifications, like those under the Youth Justice and Criminal Evidence Act 1999, aim to balance the rights of the accused with the need for effective law enforcement. The influence of the ECHR further complicates this balance, as seen in cases like Ibrahim v. United Kingdom, where the court upheld the principle that statements made without legal advice should generally be inadmissible, ensuring protection against coercion.

6. Identification Evidence

The reliability of eyewitness testimony is a well-documented concern, with numerous psychological studies demonstrating the fallibility of human memory. The Turnbull guidelines provide a framework for assessing the credibility of identification evidence, emphasizing the need for caution. However, despite these safeguards, wrongful convictions based on mistaken identity remain a significant issue, highlighting the need for continued vigilance and perhaps further reform in this area.

7. Expert Evidence

The admissibility and reliability of expert evidence are critical concerns, especially given the increasing complexity of modern litigation. The “reliability test” aims to ensure that expert testimony is grounded in sound methodology. However, the potential for expert bias and the challenge of effectively cross-examining experts present ongoing issues. The ultimate issue rule, which limits experts from opining on the final question before the court, seeks to preserve the jury’s role but can sometimes lead to overly restrictive rulings on expert testimony.

8. Exclusionary Rules and Discretion

Exclusionary discretion, particularly under PACE s.78, is a powerful tool for ensuring fair trials. However, its application can be inconsistent, leading to criticisms of unpredictability. Judicial discretion is essential for tailoring decisions to the specifics of each case, but it also introduces a level of subjectivity that can undermine uniformity in the application of the law.

9. Vulnerable Witnesses

The legal provisions for vulnerable witnesses, such as special measures directions, are crucial for ensuring that these individuals can give evidence without undue stress or intimidation. The Youth Justice and Criminal Evidence Act 1999 represents a significant step forward, but implementation challenges remain. Ensuring that all vulnerable witnesses receive appropriate support requires ongoing training and resources for legal professionals.

10. Character Evidence

Character evidence, particularly the introduction of bad character, presents a delicate balance between probative value and prejudicial impact. The Criminal Justice Act 2003’s gateways for admitting bad character evidence aim to provide clear guidelines, but their interpretation can be contentious. The psychological impact of character evidence on juries underscores the need for careful judicial directions to mitigate potential biases.

Real-World Applications and Examples

1. Materiality, Relevance, and Admissibility

In a recent high-profile criminal case, evidence of the defendant’s previous unrelated criminal activity was excluded due to its prejudicial nature outweighing its probative value. This decision exemplifies the court’s role in ensuring that only evidence directly relevant to the facts in issue is admitted. By applying the principles of materiality and relevance, the court balanced the need for a fair trial against the potential for undue prejudice.

2. Procedural Fairness and the Rationalist Model

In civil litigation involving complex financial disputes, procedural fairness was highlighted when one party failed to disclose critical documents within the stipulated timeframe. The court’s decision to impose sanctions, including an adverse inference, demonstrates the importance of procedural rules in maintaining the integrity of the adjudicative process. This case underscores the rationalist model’s emphasis on fair procedures to achieve just outcomes.

3. Hearsay Evidence in Criminal Trials

The case of R v. Horncastle is a landmark example where hearsay evidence was admitted under statutory exceptions. The defendants challenged this on the grounds of the right to confront witnesses as protected by the ECHR. The European Court of Human Rights upheld the admission, stating that sufficient safeguards were in place to ensure a fair trial. This case illustrates the tension between domestic evidentiary rules and international human rights standards, highlighting how courts navigate these complex legal landscapes.

4. Burden and Standard of Proof in Mixed Liability Cases

In a case involving both civil and criminal aspects, such as fraud, the differing standards of proof posed significant challenges. The prosecution had to prove the defendant’s guilt beyond a reasonable doubt in the criminal trial, while the plaintiff in the civil suit only needed to prove the case on the balance of probabilities. The dual proceedings highlighted the distinct objectives and burdens in civil versus criminal justice, demonstrating the practical implications of these foundational principles.

5. Privilege Against Self-Incrimination and Right to Silence

The Ched Evans case, involving a professional footballer accused of rape, brought to light issues surrounding the right to silence and self-incrimination. The use of sexual history evidence under specific exceptions generated substantial public and legal debate. This case emphasized the delicate balance between protecting the accused’s rights and ensuring that justice is served, particularly in sensitive cases involving serious allegations.

6. Eyewitness Identification and Miscarriages of Justice

The wrongful conviction of Ronald Cotton, who was exonerated after DNA evidence proved his innocence, underscores the pitfalls of eyewitness identification. Cotton’s conviction was based heavily on eyewitness testimony, which later turned out to be flawed. This case led to significant reforms in how eyewitness evidence is handled, including the implementation of the Turnbull guidelines to reduce the risk of misidentification and miscarriages of justice.

7. Expert Evidence in Medical Malpractice Cases

In medical malpractice litigation, expert testimony is crucial. A notable example is the Bawa-Garba case, where a pediatrician was convicted of gross negligence manslaughter based on expert evidence regarding the standard of care. The reliability and qualifications of the expert witnesses were critical factors in the trial. This case highlights the importance of rigorous standards for admitting expert evidence to ensure that such testimony is both reliable and relevant.

8. Exclusionary Rules and Judicial Discretion

The case of R v. Sang established that judges have the discretion to exclude evidence obtained unfairly or illegally. In a more recent case, the exclusion of evidence obtained through an unlawful search highlighted the ongoing relevance of this principle. The court’s discretion under PACE s.78 ensured that the proceedings remained fair, despite the unlawful conduct of law enforcement officers. This reinforces the role of judicial discretion in protecting the integrity of the judicial process.

9. Special Measures for Vulnerable Witnesses

In cases involving young or mentally impaired witnesses, special measures are often crucial. For example, in the trial of a high-profile child abuse case, the court allowed the child witness to testify via video link and used an intermediary to facilitate communication. These measures helped reduce the stress on the witness and ensured that their testimony could be effectively obtained without compromising their well-being. This illustrates the practical application of provisions under the Youth Justice and Criminal Evidence Act 1999.

10. Character Evidence and Jury Bias

In the trial of a defendant accused of multiple sexual assaults, the prosecution sought to introduce evidence of the defendant’s prior convictions for similar offenses. This was admitted under the Criminal Justice Act 2003’s gateway (d) for showing propensity to commit the kind of offense charged. The judge provided clear directions to the jury on how to use this evidence appropriately, emphasizing its limited purpose. This case demonstrates how character evidence can be both a powerful tool and a potential source of prejudice, necessitating careful judicial oversight.