2. Burden and standard of proof: Presumptions

Criminal Trials ◽

Standard Of Proof ◽

Statutory Provision ◽

Questions And Answers ◽

Flow Charts ◽

The Law ◽

The Difference ◽

Law Of Evidence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

5. Hearsay

10.1093/he/9780198715795.003.0005 ◽

2016 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Criminal Justice ◽

Criminal Trials ◽

Questions And Answers ◽

Flow Charts ◽

The Law ◽

Law Of Evidence ◽

Hearsay Evidence ◽

Law Commission

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter focuses on the rule against hearsay, which is, historically, one of the great exclusionary rules underlying the law of evidence. In 1997 the Law Commission recommended that hearsay evidence be put on a clearer statutory footing in criminal trials. This eventually led to wholesale reform in the Criminal Justice Act (CJA) 2003, which preserves the rule but increases the number of exceptions and safeguards, providing a comprehensive regime for hearsay. The chapter provides an overview of the changes to hearsay introduced by the CJA 2003.

5. Hearsay

10.1093/he/9780198819905.003.0005 ◽

2018 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Criminal Justice ◽

Criminal Trials ◽

Questions And Answers ◽

Flow Charts ◽

The Law ◽

Law Of Evidence ◽

Hearsay Evidence ◽

Law Commission

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter focuses on the rule against hearsay, which is, historically, one of the great exclusionary rules underlying the law of evidence. In 1997 the Law Commission recommended that hearsay evidence be put on a clearer statutory footing in criminal trials. This eventually led to wholesale reform in the Criminal Justice Act (CJA) 2003, which preserves the rule but increases the number of exceptions and safeguards, providing a comprehensive regime for hearsay. The chapter provides an overview of the changes to hearsay introduced by the CJA 2003.

Responsibility for Exceeding the Vehicle Average Speed: Another Step away from Justice

Bulletin of Kemerovo State University Series Humanities and Social Sciences ◽

10.21603/2542-1840-2020-4-4-353-364 ◽

2021 ◽

Vol 2020 (4) ◽

pp. 353-364

Author(s):

Andrey Peraladov ◽

Alexander Lichman

Keyword(s):

Burden Of Proof ◽

The Body ◽

Average Speed ◽

Legal Opinions ◽

The Law ◽

The Difference ◽

Administrative Sanctions

The present research featured optimization of the proof and its effect on the meaning and spirit of the law as in the case of administrative liability for exceeding the vehicle average speed. The authors describe the legal opinions of administrative bodies, courts, and prosecutors on the issue of exceeding the vehicle average speed registered by traffic cameras. The authors believe that it cannot be used as a basis for administrative liability since the concept of "vehicle average speed" is absent from the law. Moreover, it violates the presumption of innocence and imposes unfair burden of proof on the driver. The article introduces the difference between the calculation of the vehicle average speed and the proof of the body of an administrative offense. The proof should include the exact place and time of speeding, whereas the evidence for their determination should be admissible and relevant. Traffic cameras have too many disadvantages to be used for establishing the event of an administrative offense and bringing people to administrative sanctions.

The Problem of the Prior in Criminal Trials

10.1093/oso/9780198859307.003.0020 ◽

2021 ◽

pp. 287-300

Author(s):

Christian Dahlman ◽

Eivind Kolflaath

Keyword(s):

Bayesian Approach ◽

Prior Probability ◽

Geographical Area ◽

Criminal Trial ◽

Criminal Trials ◽

Standard Of Proof ◽

The Bayesian Approach

This chapter addresses a classical challenge to the Bayesian approach. It examines different ways of setting the prior probability of the prosecutor’s hypothesis in a criminal trial, in particular, the classical Bayesian solution of setting the prior at 1/N, where N is the number of possible perpetrators in the geographical area where the crime was committed. The authors argue that this solution is at odds with the presumption of innocence, and that other proposals are also problematic, either theoretically or in practice. According to the authors, a presumed prior determined ex lege is less problematic than other solutions, and the problem of the prior can be avoided by a reconceptualization of the standard of proof.

2. Burden of proof

Evidence Concentrate ◽

10.1093/he/9780198840633.003.0002 ◽

2019 ◽

pp. 10-36

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Human Rights ◽

Burden Of Proof ◽

Case Law ◽

Detailed Examination ◽

European Convention ◽

Human Rights Act ◽

Human Rights Act 1998 ◽

The Law ◽

Civil Cases

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

11. Mixed topic questions

10.1093/he/9780198819905.003.0011 ◽

2018 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Case Law ◽

Legal Issues ◽

Redundant Information ◽

Single Issue ◽

Questions And Answers ◽

Flow Charts ◽

The Law ◽

The Given

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter describes how examination questions frequently cover several issues. It is impossible to cover each area in the same depth as single-issue questions so it is important to take time listing matters that raise points of law, then specifying the appropriate statute or case law, and finally applying the law to the given facts. A well-crafted question will not contain redundant information, so be prepared to comment on all parts of it. These questions do not ask for an evaluation or criticism of the law as it is, but for identification of legal issues in the narrative given and application of the law to each. It may be appropriate to refer to academic commentary, particularly in new areas of law.

9. Examination and cross-examination

10.1093/he/9780198819905.003.0009 ◽

2018 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Criminal Procedure ◽

Sexual Offence ◽

Criminal Trials ◽

Questions And Answers ◽

Flow Charts ◽

Special Rule

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter deals with the type of questions that can or cannot be asked in examination-in-chief or cross-examination in criminal trials. This area overlaps considerably with criminal procedure, and Evidence courses vary in the topics they cover. The chapter covers refreshing of memory, rules on previous consistent statements and exceptions, and hostile witnesses in respect of examinations-in-chief. In respect of cross-examination, it covers rules on previous inconsistent statements, finality to answers to collateral questions and exceptions, the special rule for cross-examination of complainants in sexual offence cases and non-defendant’s bad character.

8. Opinion evidence

10.1093/he/9780198819905.003.0008 ◽

2018 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Expert Opinion ◽

Expert Witness ◽

Common Law ◽

Expert Evidence ◽

High Quality ◽

Criminal Trials ◽

Questions And Answers ◽

Flow Charts ◽

Scientific Expertise ◽

Civil Trials

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter explores an area of evidence law dominated by expert witness evidence and the extent to which flawed testimony leads to miscarriages of justice. Expert evidence is now commonplace in criminal and civil trials, and the courts and Parliament have developed procedures to ensure that it is of high quality. These are an eclectic mix of common law and statute and their development reflects the importance of scientific expertise. It is necessary to be familiar with the differences between expert and non-expert opinion evidence and on when and in what circumstances both types are admissible and questions that can be asked of the expert whilst giving evidence. The approach depends on whether the question relates to civil or criminal trials

2. The language of the law of evidence

Murphy on Evidence ◽

10.1093/he/9780198788737.003.0002 ◽

2017 ◽

Author(s):

Richard Glover

Keyword(s):

Circumstantial Evidence ◽

Material Objects ◽

Documentary Evidence ◽

The Law ◽

The Difference ◽

Law Of Evidence ◽

Hearsay Evidence

This chapter discusses the following: the basic terminology of the law of evidence and the often inconsistent use of these terms; the terminology of the qualities of evidence, including the difference between direct and circumstantial evidence; hearsay evidence; documentary evidence (both primary and secondary); real evidence, including material objects, demeanour, appearance, and views of the locus in quo; the terminology of the form of evidence (oral, documentary and real evidence); the terminology of facts to be proved; facts in issue; facts forming part of the res gestae; facts relevant to facts in issue; standards of comparison; and the terminology of admissibility and weight.