1. Introduction to Evidence PDF

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INTRODUCTION TO EVIDENCE AND PROOF

The laws of evidence and the logic of proof Court process of reconstruction of facts in order to then apply the relevant substantive law to them. Facts are to be proven – process of showing something to be the case, establishing certain facts, proving them. At its most basic, showing something to be the case is not a matter of law, it is a matter of common-sense inferential reasoning, based on our experience, and of logic. Consider the many taken for granted principles of rules: e.g. A person can’t be in two places at once; causation and time run in one direction only; people do things for reasons, etc. Rules of law don’t govern the showing or proving, rules of common sense and logic do. Law then supervenes to modify, control, and constrain a system of free proof. The first filtering device for what is admissible in court, as recognised by evidence law, is the test of relevance, no one legal guidance of what is relevant, it is common sense, logic based not legally stipulated. Why does evidence law intervene?   

Accuracy and reliability ex. Hearsay is unreliable, but not everyone will recognise this as well as lawyers or legal professionals. Fairness and respect to the accused and to other parties, in court and out  idea of procedural justice. Predictability of a process. Efficiency and the need for finality and determination.

Where does the law of evidence come from?   

Historical incremental development. Common law tradition of the adversarial trial. Modern day statutory modification: modern development of rights protections for the accused and now also increasingly for the victim.

Admissibility and exclusion Fundamental relevance requirement for admissibility (basic exclusionary rule); a matter of common sense and logic. But then many more modifications and exclusions on top of that as legal stipulations or rules of practice, e.g., hearsay.

Reliability and weight Hearsay is an example of unreliable evidence, Chinese whispers, etc. Legal rules on this. Weight of evidence is its probative value – the degree of how much more likely a certain fact is to be on the basis of what has been shown in court. A matter of common sense and logic, as applied by the jury, using their experience of the world. E.g., assessing the credibility and accuracy of a witness’ testimony. Introducing means of proof: Testimony, Documentary, and real evidence Testimony: ‘a statement made by a witness in court, generally under oath or affirmation, and offered by a party as proof of the matter stated’. Documentary  Any text or image that is offered as proof and includes handwritten notes, business records, maps, graphs, photographs, emails, and computer-generated material. Real evidence  Can overlap with documentary.  A material object or other matter presented to the court to prove its existence, condition, or value.  Includes, for examples, objects such as weapons, phones, illicit drugs; DNA evidence, the crime scene itself (jury go view it). Notably, for documentary and real evidence they need accompanying testimony; this is process of ‘authenticating evidence’. Account for process by which the evidence was recovered and how it got to court without being interfered with or manipulated. DPP v O’Loughlin [2018] IECA 25 (jury view of crime scene)  Murder trial: deceased killed due to being thrown down rubbish chute in apartment complex after altercation.  Defendant admitted to it but that they intended no harm, that they would travel down the chute and land on trash softly - denial of murder mens rea.  Asked if they could go look at the chute, trial judge said yes – hastily organised.  Lawyers for defendant not there at time and one juror threw a stone down the chute as an experiment, had to be agreement between parties and expert analysis.  Okay for jury to view the chute but not to make mini experiment in the absence of the legal representatives.  Expert evidence needed to determine difference between stone and human body. DPP v A McD [2016] IESC 71  CCTV footage – hearsay or real evidence?  Defendant placed at scene of crime of arson of car in apartment. Garda found the defendant trying to leave complex and later saw CCTV of crime and recognised defendant.

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Garda’s testimony is primary evidence in placing him at the scene of crime. Dispute about admissibility because CCTV argued as hearsay – out of court statement being sought to be admitted into court. They noted that CCTV footage is an automated photo capturing machine and that there is no human intervention and so CCTV is real evidence.

Scope for ‘judicial notice’ to be taken of very well-known or indisputable facts, also known as notorious facts. E.g., We know Cork is in Ireland. Don’t need special testimony on this fact. Judicial notice is taken of laws/cases used in court. No one has to be called into evidence to see if laws were passed etc. But not necessarily foreign laws. The Law of Evidence and the Right to a Fair Trial    

Big section of constitutional law – trial in due course of law (Art 38). Criminal processes and management of evidence must be a certain way in order to be in accordance with evolving constitutional requirements. E.g., trial by jury. Burden of proof on prosecution. Individual rights are to be respected: e.g., privilege against self-incrimination.

The Trial Setting Criminal Trials and Civil Proceedings  

The ‘versus’ in case names; a battle or contest of sorts. Witness’ first-hand account delivered under oath in the courtroom and the testing of it through cross-examination.

The criminal process (in short):  Crime occurs…  Investigation and evidence gathering  Trial  Sentencing Jury trial on indictment: The jury is the ‘trier of fact’ of factfinder. They decide questions of fact, the judge decides questions of law. The judge explains the law and how the jurors are to apply it on the facts as they find them to be. 1. 2. 3. 4. 5.

Preliminary examination in the District Court Arraignment in the court of trial Jury is empanelled Judge delivers introductory remarks Prosecution opens and presents its case (calls witnesses -- cross examined by defence)

6. Defence may move to have the charge(s) dismissed 7. Defence presents its case (calls witnesses -- cross examined by prosecution) 8. Counsel for prosecution and defence present closing arguments 9. Judge ‘charges’ the jury (summarises evidence and gives special instructions) 10. Jury deliberates 11. Verdict is delivered in court 12. Sentencing (where the accused has been convicted) 13. Possible appeal by the defence against conviction and/or sentence 14. More limited possibility of appeal by the prosecution Voir dire (in the sense of a trial within a trial) – Jury are sent out and Judge and lawyers (in absence of the jury) hold a in court on the admissibility of certain evidence before a point at which it is proposed to be admitted. Jurors are sent out so they don’t know about the potential evidence as this may be prejudicial to their judgement about guilt. Lawyers argue, and Judge rules on admissibility (as per the laws of Evidence). Such an admissibility ruling might be the subject of an appeal on point of law of Evidence, as might the how the trial judge commented on the evidence for the jurors Civil trials:  Resolution of legal disputes between parties.  No jury: judge alone, so judge is the factfinder as well as the law-decider. Civil trial overview:  Filing  Exchange of pleadings  Discovery  Settlement negotiations  Trial  Judgment  Costs Discovery: process of exchange of documents, the procedure whereby documents relevant to civil proceedings are disclosed prior to trial. Helps the parties and court to have all material (alleged) facts at their disposal. Inter parties’ discovery enables a party to learn about and inspect documents on which the other party intends to rely at trial and to prevent that other party from improperly withholding evidence, for instance, to launch in to trial some evidence in effort to catch out the opposition or to selectively cherry pick evidence without its context. A party to civil proceedings may also seek discovery from a person who is not a party (nonparty discovery). The way legal processes are…

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Historical contingencies and rationalization Political morality or public policy via judges and/or legislation

Of any Evidence Law doctrine ask to what extent is this law shaped to:  Pursue the finding of true facts in court?  Deliver a resolution? A resolution in a timely manner?  Respect a process that is fair (in terms of safeguards, being heard in court, having a fighting chance)?  Deliver on aims that are somewhat extraneous to the interests of the parties to proceedings? Due Process and Fair Trials: Burdens and Standards of Proof  

The presumption of innocence and proof beyond reasonable doubt. Presumptions and reverse burdens of proof.

The presumption of innocence as a principle or value for the system to commit to:  The grave wrongness of an innocent person getting punished.  Giving the accused the benefit of doubt and error.  Address the imbalance of power and the practical difficulties of proving innocence.  ‘Innocent until proven guilty’ respected and somewhat compromised in many aspects of the criminal process. The presumption of innocence in practical term: In a trial, prosecution must prove all elements of the crime to the standard of proof of beyond a reasonable doubt.  All elements (definitional elements of the crime, actus reus and mens rea)  Beyond a reasonable doubt (less than full or absolute certainty, as fairly sure about it as you would need to be for a big life decision; compatible with some doubt) contrast to the ‘balance of probabilities’ civil standard of proof. The requirements of the presumption of innocence are departed from on certain occasions:  Burdens of proof on the accused (‘reverse burdens’) via:  Defences – it is up the defendant to put a defence in issue and in some cases to prove it.  Presumptions – shortcuts to proof, up to the accused to come up with evidence to rebut them when they are triggered Examples of defences:  Difference between ‘evidential’ burden of proof discharge and ‘legal’ burden of proof discharge.  ‘Evidential’ burden of proof – just giving evidence of the thing.  ‘Legal’ burden of proof – proving the thing.

Most defences have evidential burden of proof on accused; insanity and diminished responsibility, however, have legal burden of proof on accused, to the civil standard. O’Leary v AG: IRA poster case  Accused of being a member of IRA, found an incriminating document that is used to trigger an accusation that he was a member of IRA.  Section 24 of the Offences Against the State Act, 1939: “On the trial of a person charged with the offence of being a member of an unlawful organisation, proof to the satisfaction of the court that an incriminating document relating to the said organisation was found on such person or in his possession or on lands or in premises owned or occupied by him or under his control shall, without more, be evidence until the contrary is proved that such person was a member of the said organisation at the time alleged in the said charge.”    

Trigger fact or evidence  presumed fact that amounts to offence element. Document possessed  membership of unlawful organization. Up to accused to then rebut the presumed fact – if they don’t rebut it, it stands. Hence, in this way the burden of proof has shifted over to the accused. This is why it is referred to a reverse burden or onus of proof. It is a reversal of the default or standard position.

Presumption of innocence a constitutional imperative (Art 38). This particular law in O’Leary v AG does not offend the presumption of innocence because it places merely an evidential burden on the accused, not a reverse legal burden of proof. The difference between a permissive presumption and a mandatory presumption: Permissive presumptions are no big deal for the presumption of innocence; but mandatory presumptions are. This is a distinction that comes prior to the legal/evidential burden on accused to rebut distinction, but not really recognized in Irish law (except somewhat by O’Flaherty J in O’Leary in SC) Instead, courts persist in calling what are clearly intended to be reverse legal burdens as merely evidential burdens. Thus, avoiding the constitutional presumption of innocence breach. Sometimes this is just done – as in O’Leary High Court – sometimes it is explained as an application of the double construction rule to take a non-Constitution infringing interpretation of statute when this can be done without doing violence to the words in statute. DPP v Smyth [2010] 3 IR 688 

Section 15, Misuse of Drugs Act 1977, as amended.

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Involved a possession of drugs. Charged with ‘possession of controlled drugs for unlawful sale or supply’ Here, possession was that they had physical possession of the packages, they claimed they had no mental possession i.e., no knowledge of what was in the package. Section 29(2) of the Misuse of Drugs Act, 1977, as amended: ‘In any such proceedings in which it is proved that the defendant had in his possession a controlled drug […] it shall be a defence to prove that: - he did not know and had no reasonable grounds for suspecting - that what he had in his possession was a controlled drug or […] that he was in possession of a controlled drug […].’ Trial judge had incorrectly interpreted that as a legal burden. The correct burden was to prove to a reasonable doubt that the defendant had knowledge of what they had was a controlled judge.

Traditionally:  Reverse burden is evidential or legal burden as to the thing specified. E.g., evidential burden to put provocation in issue by adducing evidence of act of provocation and a resulting loss of full self-control; legal burden to prove insanity on the balance of probabilities. The new Smyth type of reverse burden:  Legal burden on accused to prove a reasonable doubt about the thing specified, i.e., here in Smyth to prove a reasonable doubt as to the fact that it was known or believed that illicit drugs were in the packages.  A way of reconciling the language of proof in the statute and maintaining the position whereby a reasonable doubt excludes conviction; but consider is it still in effect re-writing the statute? And is there something strange about proving a reasonable doubt? DPP v Forsey [2018] IESC 55 (the CoA in Forsey was exceptional in seeing it as a legal burden)  Corruption offence: “An agent or any other person who(a) corruptly accepts or obtains, or (b) corruptly agrees to accept or attempts to obtain, for himself or herself, or for any other person, any gift, consideration, or advantage as an inducement to, or reward for, or otherwise on account of, the agent doing any act or making any omission in relation to his or her office or position or his or her principal’s affairs or business shall be guilty of an offence.” “Where … it is proved that – (a) any gift, consideration or advantage has been given to or received by a person, (b) the person who gave the gift, consideration, or advantage or on whose behalf the gift, consideration or advantage was given had an interest in the discharge by the person of any of the functions specified in this section, the gift or consideration or advantage shall be deemed to have been given and received corruptly as an inducement to or reward for the person performing or omitting to perform any of the functions aforesaid unless the contrary is proved.”

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Receipt of money where the giver has an interest in something relating to the recipient’s public office role = corrupt receipt. Supreme Court endorses the Smyth reading down of reverse legal burden so that it amounts to a reverse evidential burden only - what the judges call a burden to prove a reasonable doubt about the presumed fact.

Evolution of Presumption of Innocence The law of evidence is concerned not only with the pursuit of truth to allow the court to reach a just decision, but also with achieving justice through fair procedures.1 Woolmington v DPP [1935] AC 462 – ‘golden thread’ etc. A formalistic approach – express reverse legal burdens on defences in statute can apply. The Irish Constitution, the ECHR and some 21st Century England + Wales cases: less formalistic, somewhat towards a substantive approach. In conclusion on burdens and presumptions Key points:   

Be able to explain what the presumption of innocence as a value and what it requires, what burdens of proof are, and what statutory presumptions are. Have an understanding of the value’s evolution. The terminology, and some of the judgments, can be confusing. Make sense of the concepts for yourself!

Due process evidence protections   

The right to silence and the privilege against self-incrimination ‘Plead the fifth’ It is a long-standing reaction to abuses of some historical inquisitorial courts.

Three main aspects – all ‘privileges’: Defendant does not have to testify at his/her trial. Up until 1924 in our jurisdiction, the defendant couldn’t even testify at their own trial. Person suspected of crime does not have to answer questions from police in interview or elsewhere. Any person in any investigative setting does not have to answer questions that might tend to incriminate them in regard to some crime. 1 HL Ho, A Philosophy of Evidence (Oxford UUniversity Press, 2008) 51

Any confession to a crime is admissible in trial as an exception to the rule against hearsay. Jury cannot draw inferences from a defendant’s choice to exercise his right to silence. Cannot be held in contempt/any further prosecution for any non-cooperation. Privileges against Self-Incrimination Drawbacks?  Impedes investigation; may be inefficient.  At trial, missing part of the picture. Rationale for privileges against self-incrimination? Substantive values:  Autonomy – a person’s choice to self-incriminate/co-operate or not.  Privacy – entitlement to resist the intrusion.  Freedom of expression – corollary of the freedom to communicate. Trial process values:  Presumption of innocence – consistent with the idea of it.  Prevention of miscarriage of justice – barrier to untrue confessions. fairness or fair play – unfairness of being put in ‘trilemma’ position encourages diversity of evidence gathering and investigative methods Notable cases arising from two lines of legislative inroads on privilege against selfincrimination. Permitting adverse inferences about pre-trial silences: Rock v Ireland [1997]  General ban on jury making adverse inferences against accused for not talking to the police pre-trial or for not testifying in court.  Legislative exceptions permitting adverse inferences against accused for failure to explain certain things at the time questioned by police.  About section 18 & 19 of the criminal evidence act of 1984 which said when the persons are questioned on something, and maintained silence, this can be conveyed at trial and the jury can make such inferences as seem proper. Heffernan criticises the extent of the encroachment in s 19 on the right to silence of the accused and the complexity of the process of drawing inferences. She notes the failure to significantly strengthen the right of the accused to access legal advice. Criminalising the failure to speak or come forward: Heaney v Ireland [1996]  S.52, Offences Against the State Act 1939: - when detained under s 30, an offence not to give a full account of one’s movements and all information possessed in relation to the commission or intended commission of a scheduled offence.  Person could be convicted of a s52 offence – a separate new crime for not giving a full account. Direct attack on right to silence upheld by the courts.

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HC and SC uphold the constitutionality of the provisions as proportionate interferences with Art ...