The Law of Evidence

Citation

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

Chapter Summary

Context and Approach

The book treats the law of evidence in England and Wales as a body of rules that has to be understood in its theoretical setting, not only as doctrine. The publisher describes it as combining doctrinal analysis with evidence theory, psychological research on information processing and retrieval, socio-legal work on police investigations, and jury research, and as reviewing the effect of human rights jurisprudence. Its four parts follow the life of evidence: foundations, how evidence is obtained, how it is put before the court, and the exclusionary rules that limit its use. The sixth edition updates case law on the privilege against self-incrimination, confessions, examination of witnesses, hearsay and bad character, takes in new literature on vulnerable witnesses, and incorporates the changes to expert evidence.

Part 1: Understanding Evidence

• An Introduction to the Law of Evidence. Introduces materiality, relevance and admissibility, the difference between civil and criminal proceedings, and how the law has developed through reform and case law.
• The Aims of the Law of Evidence. Sets out the rationalist model of adjudication, the place of individual rights and the effect of the Human Rights Act 1998, and asks how accurate fact-finding is balanced against fairness and other values.
• Relevance and Admissibility. Covers logical relevance, exclusionary rules and the judicial discretion to exclude evidence in criminal trials, including section 78 of the Police and Criminal Evidence Act 1984.
• Facts and Factfinding. Distinguishes questions of fact from questions of law and examines legal controls on fact-finding and theories of how facts are found, including Wigmorean analysis, mathematical approaches and narrative accounts.

Part 2: Obtaining Evidence

• The Privilege Against Self-Incrimination and the Right to Silence. Looks at the relationship between the privilege and the right to silence, the statutory restrictions on silence and the influence of the European Convention on Human Rights.
• Confessions. Deals with the admissibility of confessions under section 76 of the 1984 Act, reliability, and the discretionary exclusion of confessions.
• Identification Evidence. Considers the weaknesses of eyewitness identification, psychological research and the legal response, including the Turnbull guidelines.
• Evidence Obtained by Illegal or Unfair Means. Reviews the common law and statutory discretions to exclude improperly obtained evidence, with breaches of the 1984 Act and entrapment.
• Disclosure and Immunity. Covers disclosure in civil and criminal proceedings and public interest immunity.
• Legal Professional Privilege. Explains the scope and limits of lawyer-client privilege and litigation privilege, and the circumstances in which privilege is lost.

Part 3: Adducing Evidence

• Burden and Standard of Proof. Defines the burdens and standards in civil and criminal cases and discusses the presumption of innocence and reverse burdens.
• Forms of Proof and Alternatives to Proof. Surveys testimony, documents and real evidence, together with formal admissions, presumptions and judicial notice.
• Witnesses. Treats competence and compellability, including children, people with mental disabilities and the accused.
• Examination of Witnesses. Describes examination-in-chief, cross-examination and re-examination, leading questions and refreshing memory.
• Vulnerable and Suspect Witnesses. Covers special measures for vulnerable witnesses and the rules that require caution about suspect witnesses.

Part 4: Using Evidence

• The Scope and Rationale of the Hearsay Rule. Sets out the hearsay rule, the reasons given for it and its reform.
• The Modern Law of Hearsay in Criminal Cases. Analyses the statutory scheme of the Criminal Justice Act 2003, its exceptions and its compatibility with Article 6 of the Convention.
• Character and Credibility: An Overview. Considers why character evidence is relevant and prejudicial, judicial directions and psychological evidence on bad character.
• Evidence of Bad Character in Criminal Cases. Examines the gateways to admission of bad character under the 2003 Act and how courts interpret them.
• Opinion and Expert Evidence. Discusses non-expert and expert opinion, the role and reliability of experts and the ultimate issue rule.

Key Concepts

Part 1: Foundations

• Relevance and admissibility: evidence must bear on a fact in issue and also pass the exclusionary rules and discretions that apply to it.
• Rationalist model: adjudication aims at accurate findings of fact, subject to constraints of fairness and rights.
• Theories of factfinding: Wigmorean analysis, probability reasoning and narrative accounts as ways of understanding inference.

Parts 2 and 3: Obtaining and Adducing Evidence

• Exclusion of improperly obtained evidence: statutory and discretionary powers, including sections 76 and 78 of the 1984 Act.
• Turnbull guidelines: directions to a jury about the risks of identification evidence.
• Legal and evidential burdens: who must prove a fact and to what standard.
• Special measures: arrangements that assist vulnerable witnesses to give evidence.

Part 4: Exclusionary Rules

• Hearsay: out-of-court statements offered for their truth, and the statutory exceptions.
• Bad character gateways: the routes under the 2003 Act by which a defendant's bad character can be admitted.
• Expert evidence and the ultimate issue: the conditions on which opinion is received and the reliability of experts.

Critical Analysis

Strengths

• Doctrine with theory. The publisher stresses that the book places each topic within its theoretical context, and the early chapters on aims and factfinding give a framework that later chapters on exclusionary rules refer back to.
• Clear architecture. Four parts follow the path of evidence from foundations to exclusionary rules, which makes it easy to locate a topic and to see how it links to its neighbours.
• Range of sources. The publisher notes the use of psychological research, socio-legal studies of policing and jury research, and detailed footnotes for further reading.
• Human rights integrated. The effect of the European Convention and the Human Rights Act is discussed where it matters, for example in the chapters on silence and on hearsay.

Limitations

• Length. At about 940 pages, plus front matter and tables, it is a large book; students wanting a first pass will find it heavier than shorter texts.
• Criminal emphasis. Several chapters are explicitly criminal (the modern law of hearsay and bad character in criminal cases), so a reader mainly interested in civil proceedings will use fewer of its chapters.
• England and Wales only. The rules and cases discussed belong to one jurisdiction.
• Superseded edition. The 6th edition of 2017 has since been followed by later editions, so statutory and case-law developments after 2017 are not covered.

Where It Fits in the Course

Within this evidence list, Dennis is a full-length reference with a theoretical orientation. Munday's Evidence and Choo's Evidence are shorter introductions for a first course, while Keane and McKeown's The Modern Law of Evidence and McGourlay, Thomas and Gower's Evidence: Law and Context are standard course textbooks covering both civil and criminal evidence. Roberts and Zuckerman's Criminal Evidence is the other advanced treatment, concentrating on criminal proceedings and an explicit normative framework.

Dennis suits the student who has met the basic rules and wants to know why the law takes its shape. Read a shorter text first if the vocabulary is new, then use Dennis for topics where the theory and the policy debate matter, such as the aims of evidence law, hearsay and bad character.

How to Use This Book

The publisher presents the book as suited to undergraduates, to postgraduate study of evidence and as a reference for vocational courses such as the LPC and BPTC. Knowledge of criminal law and the English legal system is assumed.

For a course, read Part 1 first, since its chapters supply the vocabulary and the aims against which the exclusionary rules are judged. Then follow the syllabus: Part 2 for pre-trial rules, Part 3 for trial procedure and proof, Part 4 for hearsay, character and opinion. When revising a topic, read the matching chapter alongside the key statutes (the Police and Criminal Evidence Act 1984 and the Criminal Justice Act 2003) and use the footnotes to find the leading cases. For essay questions, use the early chapters on aims and factfinding to frame arguments. Check any rule against the current law before relying on it, because this is the 2017 edition.