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38626 results in Cambridge Textbooks

Page 1499 of 1932

  • 3 - Burden of proof

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 34-70

  • Summary

    3.1 INTRODUCTION

    This chapter is chiefly concerned with the principle known as the ‘golden thread’ which runs ‘throughout the web of English criminal law’ (otherwise known as the burden of proof) and the meaning of the famous phrase ‘beyond reasonable doubt’ (the standard of proof). The burden and standard of proof are fundamental aspects of the law of evidence. The legal system lays down rules about which party bears the burden of proof and the standard to which facts in issue must be proved. The general principle is that it is the party who brings the case who must prove the facts in issue. The relevant party must adduce evidence in an attempt to prove the facts in issue, and ultimately, in order to discharge its burden of proof and win the case. In criminal proceedings, the burden of proof is on the prosecution (the state) to prove that the defendant is guilty of the offence charged. The prosecution bears the burden of proof because it brings the case to court, and, compared to the defendant, the prosecution has a wealth of resources with which it can prove the facts in issue. That the prosecution carries this burden of proving an accusation against the defendant is the most fundamental principle of criminal law; as stated above, it has famously been described as the ‘golden thread’ which runs throughout the web of English criminal law.

    This chapter will also consider the distinction between the legal burden and the evidential burden in legal proceedings, explore the operation of the general rule relating to the burden of proof in criminal proceedings and the exceptional situations in which the onus of proof is reversed. We will evaluate the two standards of proof (the criminal standard and the civil standard) and their application in proceedings.

  • 4 - Silence

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 71-102

  • Summary

    4.1 INTRODUCTION

    Anyone who has watched an English crime drama on television will have heard the words of the police caution recited when the suspect in the programme is arrested or interviewed by the police, but how many people pause to consider what the caution actually means? The police caution does in fact serve a very important purpose in notifying an accused about a fundamental right that he has to remain silent and not to contribute to the case against him by saying anything which might incriminate himself. The first part of the caution informs an accused that he does not have to say anything. This is a clear reference to the accused's right to silence, and viewers might even see a suspect exercising that right to silence by giving a ‘no comment’ interview. The meaning of the next part of the caution is, perhaps, less commonly appreciated by the lay television viewer. This part of the caution serves as a warning to the accused that there may be consequences at trial if he does elect to invoke his right to silence in interview but then relies on a fact in his defence at trial which he reasonably could have been expected to have mentioned when he was questioned by the police. These consequences are known amongst lawyers as ‘adverse inferences’. The Criminal Justice and Public Order Act 1994 (hereafter referred to as ‘CJPOA 1994’) provides that there are circumstances in which a court or jury may draw adverse inferences against the accused from their silence.

    This chapter is concerned with the right of the accused to remain silent and with its ally, the privilege against self-incrimination. The first part of this chapter will explore these principles and will consider the common law consequences (pre-CJPOA 1994) of exercising the right to silence.

  • 7 - Hearsay

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 188-243

  • Summary

    7.1 INTRODUCTION

    Both law lecturers and Evidence textbooks have traditionally described the law on hearsay as the most difficult topic in an Evidence module. This is largely due to the fact that the law on the admissibility of hearsay evidence before the Criminal Justice Act 2003 had been developed through common law rules which created myriad complicated exceptions. Thankfully, the statutory framework in place under the 2003 Act today has simplified and consolidated the law, and provided that you have a good understanding of the meaning of hearsay, the legal rules of admissibility are actually much less complicated. This is not to say that the law on hearsay is now simple, nor is it to say that the common law no longer has an important part to play in the law on hearsay. Quite the contrary, in recent years there have been some landmark decisions which have sought to interpret the statutory provisions and in doing so have developed the law further. Most notably, there is a string of cases which consider the status of implied assertions that were previously admissible at common law and whether the statutory framework has overturned the House of Lords’ decision in R v. Kearley (No. 1). There has also been some extremely significant jurisprudence regarding the extent to which the admissibility of hearsay evidence where the witness is unavailable to give evidence due to fear violates the defendant's right to a fair trial, and, more particularly, his right to examine or have examined witnesses against him under Article 6(3)(d) of the European Convention on Human Rights. These cases have highlighted some of the challenges that still trouble the law on hearsay; and these landmark cases, as well as cases decided since these decisions, will be discussed in this chapter.

    Hearsay evidence is best explained by way of an example: where a witness, W, makes a statement to another person, X, about something that W directly perceived, X cannot be called to give evidence in court of the matter perceived by W because it is hearsay evidence.

  • 11 - Corroboration and identification evidence

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 373-411

  • Summary

    11.1 INTRODUCTION

    This chapter is concerned with the way in which unreliable evidence is handled by the court at trial. Evidence might be unreliable in a variety of situations and for a variety of reasons. For example, where a witness receives an inducement or payment in respect of giving evidence, where a co-defendant runs a ‘cut-throat’ defence, or where a defendant tells lies about the offence, their testimony might be unreliable. Quite controversially, in relatively recent times the evidence of children and complainants of sexual offences was deemed to be inherently unreliable and it required a mandatory corroboration warning by the judge. Evidence of visual identification is notoriously unreliable. We have all suffered that embarrassing moment where you think you've just spotted someone you know and you wave at them only to realise that you've made a mistake and you have no idea who the person you've just waved at is. With this in mind, it is relatively easy to see how evidence of identification can be extremely unreliable, even where a witness honestly believes that they are right. The challenge faced by the courts in each of these circumstances is to ensure that evidence which is adduced before the jury is reliable or that there are sufficient safeguards in place to ensure that the jury members do not place undue weight on unreliable evidence in reaching their verdict. The most common way for the courts to deal with unreliable evidence is by giving the jury a care warning in which they are warned about the potential unreliability of the evidence and that they should be careful about the weight that they attach to it. This chapter explores the circumstances in which care or cautionary warnings must or may be given by a trial judge and the nature of those warnings.

  • 10 - Trial procedure and witness testimony

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 339-372

  • Summary

    10.1 INTRODUCTION

    While the previous chapter focused on issues arising prior to a witness giving testimony, such as the types of witnesses that may be called or compelled to give evidence at trial and any special measures that might be employed to improve the quality of the evidence given by vulnerable or intimidated witnesses, this chapter is concerned with trial procedure and the process by which the court receives the testimony of witnesses. The chapter begins by exploring the role of the advocate at trial and the purpose of advocacy, as well as the order of proceedings in both criminal and civil trials. A significant focus of this chapter is the examination of witnesses on oath: consideration will be given to the purpose of examination-in-chief, cross-examination and re-examination of witnesses and the types of questions (leading or non-leading questions) which may be asked of witnesses at each of these stages. The procedure for dealing with the use of a document to refresh a witness's memory will be explained, such as where a witness refreshes his memory from his witness statement before going into court, or a police of ficer refreshes his memory from his incident notebook during his testimony. The exceptions to the rule that prior consistent statements are not admissible as evidence of consistency will be explored. The chapter will look at the way in which unfavourable and hostile witnesses who give evidence may be treated, and finally, the special rules relating to the cross-examination of complainants in sexual offence cases will be examined.

    10.2 THE ROLE OF THE ADVOCATE

    Before exploring the procedure at trial and the testimony of witnesses, it is worth considering the role of the advocate at trial. The English legal system is an adversarial one and the trial process is based upon the adversarial model which ‘is characterised by two opposing parties gathering, selecting and presenting evidence for trial’ and as being concerned with ‘proof’ rather than with ‘truth’, a consideration which dominates the inquisitorial model.

  • 2 - Preliminary issues

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 13-33

  • Summary

    2.1 INTRODUCTION

    Television programmes featuring court proceedings often portray the trial process as pompous, overly dramatic, aggressively adversarial and dominated by an heroic counsel who elicits vital and previously unrealised evidence from a shaken witness while gasps of shock echo around the public gallery. The reality of court proceedings is very different. Proceedings are generally slow-moving and drama-free; the principle of open justice requires that evidence is disclosed during pre-trial stages, so shocks involving the admission of new evidence of the magnitude displayed on television dramas are rare. This chapter explores some of the fundamental principles of the law of evidence. We will begin by looking at the adversarial nature of the criminal trial and we will compare the key features of both adversarial and inquisitorial systems. We will explore the role of the judge and the jury in the trial process. We will brie fly consider some of the fundamental aspects of the law of evidence, including the models of criminal justice systems, the concepts of truth, due process, justice and fairness in the proceedings, and the legitimacy principle. The final paragraph of this chapter will be devoted to a consideration of the crucial principles of relevance, admissibility and weight, with a particular focus on the meaning of relevance.

    2.2 THE ADVERSARIAL NATURE OF THE CRIMINAL TRIAL

    This paragraph of the chapter looks at the nature of the criminal trial. The criminal justice system in England and Wales operates on the basis of an adversarial system. By contrast, the Continental system is generally inquisitorial. In the adversarial system, the prosecution and defence act as opposing parties in a battle. The prosecution will call evidence to prove that the defendant is guilty of the offence charged, and this means that witnesses will be called to give oral evidence in front of the judge and jury. The oral evidence of a witness is required in accordance with the principle of orality. Counsel for the defence will often make an emotive closing speech, urging the jury to acquit the defendant.

  • 12 - Opinion and expert evidence

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 412-435

  • Summary

    12.1 INTRODUCTION

    A witness is called to give evidence at trial about matters which they have personally perceived. A witness is generally not permitted to give evidence about their opinion since the opinion of a non-expert witness is not relevant. However, the opinion of expert witnesses is relevant and admissible. Doctors, forensic scientists, psychologists and forensic accountants are all examples of the types of expert who may be called to give evidence in the criminal and civil courts. Many experts will have studied and practised in their chosen field for years, while others may have no qualifications at all. Since expert witnesses are called to give evidence about matters on which they are deemed to have specialist knowledge (above and beyond that of the average juror or other fact-finder), it is perhaps unsurprising that the evidence of expert witnesses is often held in very high regard by fact-finders. However, there have been several significant, and some very high profile, cases in which doubt has been cast upon the accuracy and reliability of the evidence of expert witnesses. This raises questions about who is deemed to be an expert and how this is decided, as well as questions about the extent to which jurors are deferential to expert opinion evidence. The weight of the evidence of an expert witness is a matter for the jury and jurors are told to treat the evidence of expert witnesses in the same way as any other evidence in the case; thus, jurors are free to accept or disregard the evidence as they see fit. However, where an issue in a case falls beyond the scope of the knowledge and education of the jury, there is clearly a real danger that jurors may treat an expert witness differently to other witnesses in the case, placing significant weight on the evidence of the expert. Where the evidence of the expert is unreliable or inaccurate, the potential for a miscarriage of justice to occur is very high and the consequences are potentially very damaging to the criminal justice system as a whole.

  • 8 - Character evidence

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 244-294

  • Summary

    8.1 INTRODUCTION

    ‘Character evidence’ is evidence that relates to a person's disposition to act in a particular way. This might include evidence of the tendency of a defendant to commit certain types of offence (bad character) or evidence of no previous convictions (good character), or evidence of the tendency of a witness to tell lies (bad character) or to undertake charity work (good character). This chapter explores the admissibility of character evidence in criminal and civil proceedings. This chapter is chiefly concerned with the admissibility of evidence of bad character relating to a defendant or a witness in criminal proceedings. It will also explore the admissibility of evidence of the defendant's good character in criminal proceedings, and, to a lesser extent, the admissibility of character evidence in civil evidence. Evidence of bad character is widely construed and might be shown by evidence of previous convictions, evidence of the commission of a criminal offence which did not result in prosecution, evidence of an acquittal or evidence of reprehensible behaviour. Evidence of good character might typically include evidence that the defendant or witness has no previous convictions or evidence of charitable behaviour. The law relating to the admissibility of character evidence is governed by both statute and case law. In particular, the Criminal Justice Act 2003 provides a statutory framework which governs the admissibility of evidence of bad character of a defendant and of a non-defendant in criminal proceedings, while the admissibility of evidence of good character and the directions that a trial judge should give a jury on evidence of good character is governed by case law.

    8.2 CONSIDERATIONS IN DETERMINING ADMISSIBILITY

    The admissibility of evidence of bad character is a matter that must be determined by the trial judge. It has always been a controversial issue for the courts and is dominated by two competing interests: (1) the propensity and/or credibility of the witness, and (2) the prejudicial effect of the admission of such evidence.

  • Preface

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp xxxiii-xxxiv

  • Summary

    The law of evidence is a fascinating subject which covers a range of controversial and complex topics, from the admissibility of confessions and other evidence obtained as a result of police brutality or trickery, to the dangers presented by mistaken visual identification evidence, and the impact of a defendant's refusal to answer questions or the admissibility of his previous convictions on the verdict. Much of the study of the law of evidence focuses on the admissibility of certain types of evidence: the law seeks to control the admissibility of evidence to ensure that the tribunal of fact has access to evidence that is relevant and reliable. The rules governing admissibility are often complicated and nuanced, requiring a solid understanding of more general principles relating to the purpose of the trial process, due process, justice, fairness and legitimacy.

    The first two chapters of the book provide an introduction to the subject and to these preliminary principles. Chapter 3 explores matters concerning proof, including the burden and standard of proof in criminal and civil proceedings. Chapters 4 to 6 cover the investigative stage of evidence gathering and focus on the impact of the defendant's silence in the police station on the trial and the admissibility of illegally or improperly obtained evidence, including confession evidence. Chapters 7 and 8 deal with the admissibility of hearsay evidence and character evidence respectively. Chapters 9 and 10 cover the rules relating to the competence and compellability of different categories of witnesses and the testimony given by witnesses, such as the different types of questioning permitted in examination-in-chief and cross-examination. They also deal with the rules relating to the cross-examination of a complainant regarding their sexual history and the measures which may be used to assist an intimidated or vulnerable witness to improve the quality of the evidence that they give. Chapter 11 examines the safeguards provided by the law where the prosecution seeks to rely on hazardous evidence.

  • 1 - Introduction to the law of evidence

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 1-12

  • Summary

    1.1 INTRODUCTION

    This book is concerned with the law of evidence which governs the presentation of evidence in criminal and civil proceedings. Rules of evidence transcend all aspects of the trial stage of proceedings. They govern who has to prove what in a trial (the burden of proof) and the level to which those facts have to be proved (the standard of proof). They govern what evidence can go before the court (by the rules relating to relevance and admissibility), the format in which it is presented to the tribunal of fact and the reasons why it may be adduced (i.e. what the evidence goes towards proving or disproving). They ensure that members of the tribunal of fact are provided with guidance (usually by way of a direction from the judge) as to how they should approach their deliberations and what certain evidence may go to prove or disprove. The law of evidence provides rules as to who can be called as a witness (and by which party in proceedings) to give evidence (competence) and who must give evidence if called to do so (compellability). The rules of evidence also dictate the type of questions which may be asked of a particular witness depending upon the party calling them. The law provides safeguards for the protection of vulnerable witnesses in order to maximise the quality of their evidence. The law safeguards against miscarriages of justice by providing rules of evidence and discretionary powers to exclude certain types of evidence or evidence which has been improperly obtained.

    1.2 WHAT IS EVIDENCE?

    Evidence is information which may be used to prove the existence of a fact in issue or a collateral fact or to disprove a fact in issue or collateral fact. These terms will be explored in paragraphs 1.3.1 and 1.3.3 below.

    There are many different types of evidence including the testimony from a witness given in the witness box, forensic evidence, the evidence of identification, evidence in documentary form, and objects (e.g. a weapon).

  • 14 - Privilege and public interest immunity

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 466-484

  • Summary

    14.1 INTRODUCTION

    When a witness is called to give evidence and answers questions in examination-in-chief, he opens himself up to cross-examination by other parties in the case, and, as a general rule, he must answer any question put to him. However, the law acknowledges that there may be circumstances in which a witness should be permitted to refuse to answer certain questions: for instance, a lawyer should not be required to answer questions about the details of conversations he had with his client, a witness should not be required to answer questions if he might incriminate himself, and the prosecution should not be required to disclose information which might jeopardise national security or police operations. Thus, the law provides privileges for witnesses which protect the witness against such questioning. The circumstances mentioned above and many others are protected by the law of privilege. This chapter explores the law of privilege. It begins with an examination of legal professional privilege, and more specifically, the two categories of legal professional privilege, namely, legal advice privilege and litigation privilege. Other forms of privilege are then considered, including ‘without prejudice’ communications, the privilege against self-incrimination and public interest immunity.

    14.2 LEGAL PROFESSIONAL PRIVILEGE

    The relationship between a lawyer and his client is a protected one. The law provides that communications between a lawyer and his client are confidential and they are protected by legal professional privilege. Thus, a lawyer cannot be compelled to testify about the details of communications with his client. Legal professional privilege has been held to be an absolute privilege; there are no exceptions to the privilege and the court should not conduct a balancing exercise to weigh up the interests of the client in keeping the communications confidential and the interests of the public in disclosing the communications to the other party.

  • 13 - Disclosure

  • Nicola Monaghan, Coventry University
  • Book:
    Law of Evidence
    Published online:
    28 May 2018
    Print publication:
    26 March 2015, pp 436-465

  • Summary

    13.1 INTRODUCTION

    This chapter explores the provisions that govern the process of pre-trial disclosure. The law on disclosure has been the subject of extensive discussion amongst academics and practitioners. This is a controversial area, and the arguments balancing the interests of all the parties in a case are well rehearsed. The concept of pre-trial prosecution disclosure supports the defendant's right to a fair trial or fair hearing under Article 6 of the European Convention on Human Rights by ensuring that the defendant is aware of the evidence against him before trial. The rules on disclosure also assist in the administration of justice by ensuring that the issues that will arise at trial are identified at an early stage; this reduces the length of court hearings and ensures that the justice system is more cost efficient. Brief consideration will be given to the civil disclosure process before a more detailed examination of disclosure in the criminal justice system. The chapter will provide an overview of the disclosure process in criminal proceedings before looking at the two different types of disclosure: disclosure of ‘used’ material, where the prosecution discloses to the defence any material on which it intends to rely, and disclosure of ‘unused’ material, which is governed by the Criminal Procedure and Investigations Act 1996. The Criminal Procedure and Investigations Act 1996 (as amended by the Criminal Justice Act 2003) lays down a framework for the disclosure of unused material. The 1996 Act also first introduced the concept of defence disclosure into the criminal justice system, requiring that the defence disclose its case in advance of trial through the service of a defence statement. Finally, the chapter will consider the non-disclosure of material which is subject to public interest immunity (PII), the secretive manner in which some PII applications are made and the effect of this on the defendant's right to a fair trial under Article 6.

  • PART I - HELPFUL PRELIMINARIES

  • Achille Messac, Mississippi State University
  • Book:
    Optimization in Practice with MATLAB®
    Published online:
    28 May 2018
    Print publication:
    19 March 2015, pp 1-2

  • Summary

    Part I provides prerequisite information for using optimization in practice. Specifically, we need to use software and we need to have some basic knowledge of mathematics. This book uses Matlab as a computational tool. If you are new to Matlab or do not know it yet, Chapter 1 will provide you with the preparatory information to get started. If your mathematics knowledge is a bit rusty, Chapter 2 will provide you with the preparatory knowledge for optimization application.

    Specifically, the topics presented, with the chapter numbers, are given below:

  • Matlab® as a Computation Tool

  • Mathematical Preliminaries

Page 1499 of 1932