Choo, A. L.-T. (2018). Evidence (5th ed.). Oxford University Press.

Chapter Summary

Preface and Introduction

The preface to the fifth edition of Evidence by Andrew L.-T. Choo highlights the updates and revisions in this edition, including changes to the Criminal Procedure Rules, Criminal Practice Directions, and PACE Codes of Practice. It also addresses significant case law developments and incorporates new secondary material from various jurisdictions.

Chapter 1: Introduction

  • Provides an overview of the foundational concepts in evidence law, including facts in issue, relevance, admissibility, weight, direct and circumstantial evidence, testimonial and real evidence, and the role of exclusionary rules and discretions. It also discusses the implications of trial by jury and the Human Rights Act 1998.

Chapter 2: Burden and Standard of Proof

  • Explores the allocation of the burden of proof and the different standards of proof required in criminal and civil cases. The chapter emphasizes the significance of these principles in ensuring fair trials and preventing miscarriages of justice.

Chapter 3: The Course of Evidence

  • Examines the adversarial tradition and the sequence of presenting evidence in trials. It covers examination-in-chief, cross-examination, and re-examination, highlighting the strategies and legal rules governing each stage of witness questioning.

Chapter 4: Confessions

  • Discusses the legal framework governing the admissibility of confessions, including mandatory and discretionary exclusions, tainting of subsequent confessions, and warnings related to mental handicap. It also addresses the use of confessions in multi-defendant cases and the procedural aspects of voir dire hearings.

Chapter 5: The Right to Silence and the Privilege Against Self-Incrimination

  • Analyzes the legal principles underpinning the right to silence and the privilege against self-incrimination, including statutory modifications and the impact of the European Convention on Human Rights (ECHR). The chapter discusses the legal and practical implications of these rights in various contexts, such as police interrogations and court proceedings.

Chapter 6: Identification Evidence

  • Focuses on the issues related to eyewitness identification, including the risks of mistaken identification and the legal safeguards in place to mitigate these risks. The chapter reviews the Turnbull guidelines, the discretionary exclusion of identification evidence, and the use of photographic and video recordings in identification procedures.

Chapter 7: Investigatory Impropriety

  • Explores the exclusion of evidence obtained through improper or illegal means, including violations of the ECHR and undercover police operations. The chapter addresses the balancing act between deterring police misconduct and ensuring that reliable evidence is not excluded unjustly.

Chapter 8: Public Interest Immunity and Related Matters

  • Discusses the concept of public interest immunity (PII), including the development of the law, class and contents claims, and the balance between protecting sensitive information and ensuring fair trials. The chapter also addresses related issues such as confidentiality and the Freedom of Information Act 2000.

Chapter 9: Legal Professional Privilege

  • Examines the scope and limitations of legal professional privilege, the privilege against self-incrimination, and without prejudice negotiations. It also considers other professional privileges and the conditions under which privilege may be lost.

Chapter 10: Character Evidence

  • Reviews the relevance and admissibility of character evidence in civil and criminal proceedings. The chapter discusses the legal principles governing the introduction of good and bad character evidence and the potential impact on the jury’s perception.

Chapter 11: Hearsay Evidence

  • Analyzes the hearsay rule and its exceptions in civil and criminal cases. The chapter reviews the ongoing debates surrounding the hearsay rule, the statutory reforms, and the practical challenges of applying hearsay exceptions.

Chapter 12: Expert Evidence

  • Discusses the admissibility and evaluation of expert evidence, the distinction between fact and opinion, and the use of hearsay by experts. The chapter also addresses the presentation of expert evidence, battles of experts, and the disclosure requirements for expert testimony.

Chapter 13: Witnesses

  • Explores the rules governing the competence and compellability of witnesses, corroboration requirements, and measures designed to ease the burden on witnesses, particularly vulnerable individuals.

Chapter 14: Alternative Pathways to Proof

  • Covers alternative methods of proof, such as formal admissions, judicial notice, and presumptions. The chapter highlights the role of these mechanisms in streamlining the evidentiary process and ensuring judicial efficiency.

Key Concepts

1. Facts in Issue and Collateral Facts

  • Facts in Issue: Central to determining the outcome of the case, these are the main facts that the parties need to prove or disprove.
  • Collateral Facts: Indirectly related to the facts in issue, often used to establish context, credibility, or background information.

2. Relevance, Admissibility, and Weight

  • Relevance: Evidence must be logically connected to the facts in issue.
  • Admissibility: Whether evidence can be legally considered by the court, governed by rules and statutes.
  • Weight: The importance or persuasive value of admitted evidence, which the fact-finder determines.

3. Direct and Circumstantial Evidence

  • Direct Evidence: Testimony or material that directly proves a fact, like eyewitness accounts.
  • Circumstantial Evidence: Requires inference to connect it to a conclusion of fact, like fingerprint evidence.

4. Testimonial and Real Evidence

  • Testimonial Evidence: Statements made by witnesses under oath.
  • Real Evidence: Physical objects presented to the court, such as weapons, documents, or digital records.

5. Exclusionary Rules and Discretions

  • Mandatory Exclusions: Rules that automatically disallow certain evidence, like illegally obtained confessions.
  • Discretionary Exclusions: Judges may exclude evidence based on factors like unfair prejudice or reliability concerns.

6. Burden of Proof

  • Legal Burden: The responsibility of a party to prove a fact in dispute.
  • Evidential Burden: The obligation to produce sufficient evidence to raise an issue for the court’s consideration.
  • Reverse Burden: Situations where the burden shifts to the defendant, often controversial due to implications for the presumption of innocence.

7. Standard of Proof

  • Criminal Cases: “Beyond a reasonable doubt” – the highest standard, reflecting the severe consequences of a criminal conviction.
  • Civil Cases: “Balance of probabilities” – a lower standard, appropriate for resolving private disputes.

8. Right to Silence and Privilege Against Self-Incrimination

  • Right to Silence: Protects individuals from being compelled to testify against themselves, particularly during police questioning and trials.
  • Privilege Against Self-Incrimination: Prevents a person from being forced to provide evidence that could lead to their own prosecution.

9. Identification Evidence

  • Turnbull Guidelines: Judicial guidelines ensuring the reliability of eyewitness identification, requiring cautionary instructions to juries.
  • Photographic and Video Evidence: Used in lineups and other identification procedures, subject to strict legal standards to prevent misidentification.

10. Public Interest Immunity (PII)

  • Class Claims: Broad categories of documents or information deemed immune from disclosure to protect public interests.
  • Contents Claims: Specific documents or information whose disclosure would harm the public interest.
  • Balancing Test: Courts weigh the need for disclosure against potential harm to public interests.

11. Legal Professional Privilege

  • Confidential Communications: Protects communications between legal advisors and their clients to ensure candid advice and robust legal representation.
  • Litigation Privilege: Extends to documents prepared in anticipation of litigation.
  • Waiver of Privilege: Privilege can be lost if confidentiality is breached or waived by the holder.

12. Character Evidence

  • Good Character: Used to support a defendant’s credibility or suggest they are less likely to commit the alleged crime.
  • Bad Character: Can be introduced under certain conditions, such as when it is relevant to an issue in the case or to rebut a claim of good character.

13. Hearsay Evidence

  • Definition: Statements made outside of court presented to prove the truth of the matter asserted.
  • Exceptions: Various statutory and common law exceptions allow hearsay, such as dying declarations, business records, and statements against interest.
  • Reliability Concerns: Hearsay is generally excluded due to issues with verifying the declarant’s credibility and the potential for unfair prejudice.

14. Expert Evidence

  • Admissibility: Experts can testify on matters requiring specialized knowledge that aids the court.
  • Reliability: Courts scrutinize the methods and principles underlying expert opinions to ensure reliability.
  • Ultimate Issue Rule: Experts should not provide opinions on the final issue the court must decide, preserving the fact-finder’s role.

15. Witness Competence and Compellability

  • Competence: Legal ability of a witness to testify, generally all persons are competent unless disqualified by specific rules.
  • Compellability: Whether a witness can be legally obligated to testify, with certain exceptions like spousal privilege in criminal cases.

16. Special Measures for Vulnerable Witnesses

  • Youth Justice and Criminal Evidence Act 1999: Provides for special measures such as screens, video links, and intermediaries to assist vulnerable witnesses in giving evidence.

Critical Analysis

1. Facts in Issue and Collateral Facts
The distinction between facts in issue and collateral facts is essential for focusing the trial on the most pertinent information. However, it can be challenging to maintain this focus, especially in complex cases where collateral facts may unduly influence the jury. Judges must carefully navigate these distinctions to ensure a fair trial while avoiding unnecessary diversions.

2. Relevance, Admissibility, and Weight
Relevance and admissibility are foundational principles that ensure only pertinent and legally acceptable evidence is presented. However, the determination of relevance can be subjective, leading to variability in judicial decisions. Additionally, the balance between probative value and prejudicial impact often complicates admissibility decisions. While rules and statutes provide guidance, judicial discretion plays a significant role, introducing potential inconsistencies.

3. Direct and Circumstantial Evidence
While direct evidence is straightforward, circumstantial evidence requires careful handling to avoid wrongful inferences. The reliability of circumstantial evidence often hinges on the logical connections made by the fact-finder. Cases such as the conviction of Timothy Evans, later pardoned due to wrongful reliance on circumstantial evidence, highlight the potential pitfalls and the need for caution in such cases.

4. Testimonial and Real Evidence
Testimonial evidence’s reliability depends heavily on the witness’s credibility and memory, which can be influenced by various factors, including stress and suggestive questioning. Real evidence, although tangible, is not immune to issues such as contamination or chain-of-custody errors. Both forms of evidence require rigorous scrutiny to ensure integrity and reliability.

5. Exclusionary Rules and Discretions
Mandatory and discretionary exclusions serve as safeguards against unreliable or unfairly obtained evidence. However, the application of these rules can be contentious. For instance, the exclusion of evidence obtained through unlawful searches balances protecting individual rights against the need for effective law enforcement. Discretionary exclusions, under statutes like PACE s.78, often depend on the judge’s perception of fairness, which can lead to varied outcomes.

6. Burden of Proof
The burden of proof principles uphold the presumption of innocence in criminal cases and the balance of probabilities in civil cases. However, the reverse burden in certain defenses (e.g., insanity) can be controversial, as it appears to shift the traditional presumption of innocence. This tension is exemplified in cases like R v. Lambert, where the House of Lords upheld the reverse burden but recognized its potential conflict with human rights principles.

7. Standard of Proof
The differing standards in criminal and civil cases reflect the varying consequences of judicial decisions. The high standard in criminal cases aims to prevent wrongful convictions, but it also makes securing convictions more challenging. The lower standard in civil cases aligns with the compensatory nature of civil justice but may raise concerns about the potential for unjust outcomes, particularly in cases involving serious allegations like fraud.

8. Right to Silence and Privilege Against Self-Incrimination
These protections are fundamental to ensuring fair treatment of suspects and defendants. However, statutory modifications and judicial interpretations, such as those under the Youth Justice and Criminal Evidence Act 1999, can complicate their application. Cases like Ibrahim v. UK illustrate the delicate balance between protecting these rights and allowing effective investigation and prosecution of crimes.

9. Identification Evidence
The reliability of eyewitness identification is a persistent concern, given the well-documented issues with human memory. The Turnbull guidelines aim to mitigate these risks, but wrongful convictions based on mistaken identity continue to occur. This area of law requires ongoing attention to ensure that identification procedures are both effective and fair, as seen in the case of Ronald Cotton, who was wrongfully convicted based on faulty eyewitness testimony.

10. Public Interest Immunity (PII)
PII serves to protect sensitive information while ensuring justice is served. However, determining what constitutes public interest can be contentious, as seen in cases involving national security. The balancing act between transparency and confidentiality requires careful judicial consideration to avoid undermining either public safety or the right to a fair trial.

11. Legal Professional Privilege
Legal professional privilege ensures candid communication between clients and their lawyers, crucial for effective legal representation. However, challenges arise when privilege is contested, particularly in cases involving allegations of fraud or misconduct by legal professionals. The potential for waiver of privilege complicates matters further, as seen in cases where inadvertent disclosure can lead to significant legal consequences.

12. Character Evidence
The introduction of character evidence can significantly influence a jury’s perception, raising concerns about fairness. Good character evidence can support credibility, while bad character evidence can prejudice the jury against the defendant. The Criminal Justice Act 2003 provides specific gateways for admitting bad character evidence, but its application requires careful judicial management to prevent undue prejudice.

13. Hearsay Evidence
Hearsay rules aim to exclude unreliable evidence, but numerous exceptions can lead to complexity and inconsistency. The debate over hearsay’s reliability versus its necessity in certain situations, such as unavailable witnesses, continues to evolve. The ECHR’s influence, particularly through Article 6, adds another layer of scrutiny to hearsay admissibility, as seen in cases like Al-Khawaja and Tahery v. UK.

14. Expert Evidence
Expert testimony can be pivotal in cases involving technical or specialized knowledge. However, the reliability of expert evidence depends on the expert’s qualifications and the soundness of their methodology. The “battle of experts” often complicates trials, with opposing experts providing conflicting testimony. The ultimate issue rule seeks to preserve the jury’s role but can limit the usefulness of expert opinions.

15. Witness Competence and Compellability
The rules governing witness competence and compellability ensure that only credible witnesses testify. However, exceptions for vulnerable witnesses or those with certain relationships to the parties can complicate trials. The challenge lies in balancing the need for reliable testimony with the protection of witnesses’ rights.

16. Special Measures for Vulnerable Witnesses
Special measures under the Youth Justice and Criminal Evidence Act 1999 aim to protect vulnerable witnesses and facilitate their testimony. While these measures are essential, their implementation can be inconsistent, and the effectiveness of such measures in ensuring reliable testimony remains a topic of ongoing evaluation.

Real-World Applications and Examples

1. Facts in Issue and Collateral Facts

  • Case Example: R v. Woolmington (1935)
  • This landmark case emphasized the importance of distinguishing between facts in issue and collateral facts. The defendant, accused of murdering his wife, claimed it was an accident. The House of Lords reiterated that the prosecution must prove the defendant’s guilt beyond a reasonable doubt, highlighting the centrality of facts in issue to the case outcome.

2. Relevance, Admissibility, and Weight

  • Case Example: R v. Turner (1975)
  • In this case, the relevance and weight of psychiatric evidence were scrutinized. The court decided that expert evidence should only be admitted if it provides information beyond common knowledge, thus emphasizing the careful balance required in assessing the relevance and weight of evidence.

3. Direct and Circumstantial Evidence

  • Case Example: R v. McGreevy (1973)
  • The House of Lords dealt with the use of circumstantial evidence in this case, where the defendant was convicted based on a series of indirect evidence pieces. The judgment underscored the necessity for juries to be cautious in drawing inferences from circumstantial evidence, ensuring logical connections to the facts in issue.

4. Testimonial and Real Evidence

  • Case Example: R v. Kelly (1999)
  • This case involved the theft of body parts from the Royal College of Surgeons, where both testimonial and real evidence played crucial roles. The testimonies of witnesses and the physical evidence of the stolen body parts provided a comprehensive basis for the court’s decision.

5. Exclusionary Rules and Discretions

  • Case Example: R v. Sang (1980)
  • The court held that judges have the discretion to exclude evidence obtained by unfair means if its admission would adversely affect the fairness of the proceedings. This case highlights the application of discretionary exclusion to maintain the integrity of the judicial process.

6. Burden of Proof

  • Case Example: R v. Lambert (2001)
  • In this case, the House of Lords grappled with the reverse burden of proof under the Misuse of Drugs Act 1971. The court upheld the reverse burden but acknowledged the tension between this provision and the presumption of innocence, illustrating the complexities of allocating the burden of proof in criminal law.

7. Standard of Proof

  • Case Example: Re B (Children) (2008)
  • This civil case involving allegations of sexual abuse highlighted the application of the standard of proof in civil cases. The House of Lords confirmed that the standard is the balance of probabilities, emphasizing that the seriousness of allegations does not change the standard, only the quality of evidence needed to meet it.

8. Right to Silence and Privilege Against Self-Incrimination

  • Case Example: R v. Murray (1996)
  • The European Court of Human Rights ruled that drawing adverse inferences from a defendant’s silence could be compatible with the ECHR, provided safeguards were in place. This case illustrates the nuanced application of the right to silence and the privilege against self-incrimination within the broader human rights framework.

9. Identification Evidence

  • Case Example: R v. Treadaway (1997)
  • Treadaway was wrongfully convicted based on unreliable identification evidence. The case led to significant reforms in police identification procedures, reinforcing the need for strict adherence to guidelines like those established in Turnbull to prevent miscarriages of justice.

10. Public Interest Immunity (PII)

  • Case Example: Conway v. Rimmer (1968)
  • The House of Lords recognized the necessity of balancing public interest against the need for a fair trial. This case set important precedents for the application of PII, emphasizing that not all government-held information should be immune from disclosure.

11. Legal Professional Privilege

  • Case Example: R v. Derby Magistrates’ Court, ex parte B (1996)
  • The House of Lords reinforced the absolute nature of legal professional privilege, ruling that it should not be overridden even in the interest of justice. This case underscores the critical role of privilege in ensuring confidential communications between lawyers and their clients.

12. Character Evidence

  • Case Example: R v. Z (2000)
  • The House of Lords considered the admissibility of previous acquittals as evidence of bad character. The court ruled that such evidence could be admitted if it had substantial probative value, highlighting the careful balancing act required when dealing with character evidence.

13. Hearsay Evidence

  • Case Example: R v. Horncastle (2009)
  • This case addressed the compatibility of hearsay evidence with the ECHR. The Supreme Court upheld the use of hearsay under specific statutory provisions, asserting that such evidence could be admissible if accompanied by adequate safeguards. The ruling emphasized the importance of balancing the reliability of hearsay evidence with the rights of the accused.

14. Expert Evidence

  • Case Example: R v. Dallagher (2002)
  • The Court of Appeal quashed a conviction based on unreliable earprint evidence provided by an expert. This case highlights the critical scrutiny required for expert evidence and the potential consequences of relying on flawed expert testimony.

15. Witness Competence and Compellability

  • Case Example: R v. A (2001)
  • The competency of child witnesses was central to this case, where the court determined that children are competent to testify if they can understand questions and provide coherent answers. This decision underscores the evolving approach to witness competence and the protections in place for vulnerable witnesses.

16. Special Measures for Vulnerable Witnesses

  • Case Example: R v. Camberwell Green Youth Court, ex parte D (2005)
  • The House of Lords upheld the use of special measures for vulnerable witnesses, including video links and intermediaries. This case illustrates the practical application of legal provisions designed to protect vulnerable witnesses and ensure their effective participation in the judicial process.

These real-world examples demonstrate the practical implications of the key concepts discussed in Andrew L.-T. Choo’s Evidence. They illustrate how theoretical principles are applied in judicial decisions and the ongoing challenges in balancing fairness, reliability, and justice within the evidentiary framework.

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