Evidence

Highly relevant to actual day-to-day legal practice, this module will appeal particularly to students intending to become courtroom lawyers.

Topics covered

• Basic concepts of relevance, admissibility and weight and procedural context. Nature and classification of various types of evidence. Objectives of evidence law and determination of probative value.
• Burden of proof. Legal and evidential burdens. Allocation of the legal burden in criminal and civil trials. The standard of proof in civil proceedings.  The standard of proof in criminal proceedings (for prosecution, conviction appeal).  Presumptions. Critical evaluation.
• Confessions and improperly obtained evidence. Using and excluding confessions. Using and excluding improperly obtained evidence. Entrapment. Critical evaluation.
• The right to silence and adverse inferences under the Criminal Justice and Public Order Act 1994.
• Hazardous witness testimony and judicial warnings. Makanjuola warnings. Directions about a defendant’s lies. Eyewitness identification. Dangers and pre-trial identification procedures. Directions to the jury and withdrawal of the case/evidence. Critical evaluation.
• Evidence of a complainant’s extraneous sexual behaviour in trials of sexual offences. Legislative background. Youth Justice and Criminal Evidence Act 1999. Sections 41–43 and its interpretation in the case law. Critical evaluation.
• Character evidence. Good and bad character evidence and the admissibility gateways for bad character evidence. Critical evaluation.
• The rule against hearsay. The rule (its definition, scope and rationale). The definition of hearsay. Exceptions to the rule. The impact of Article 6(3)(d) of the European Convention on Human Rights.
• Expert evidence. Admissibility. Evaluation of the law (including judicial directions) and practice. Dangers and reforms to ameliorate risks associated with. Critical evaluation.

Learning outcomes

If you complete the module successfully you should be able to:

• Demonstrate a critical awareness of the relationship between the theoretical context of the law of evidence (its policy aims and objectives) and the common law and legislative provisions in the law of evidence
• Explain and distinguish between legal and evidential burdens of proof; the role of policy in the allocation of burdens; the difficulties in determining whether a statute has impliedly placed a burden of proof on a defendant and the role of Article 6 of the European Convention on Human Rights in this determination
• Construct an argument for or against the relevance of a particular piece of evidence and be able to construct an argument for or against the admissibility of a range of types of evidence including that which has been unlawfully obtained, that which may be more prejudicial than probative, sexual history evidence, bad character evidence, evidence of a defendant’s silence, hearsay evidence, expert evidence and eyewitness identification evidence
• Explain and critically evaluate judicial warnings to the jury
• Analyse and interpret complex legal questions and problems
• Evaluate and critique a range of legal materials and arguments
• Distinguish between different types of evidence
• Utilise accurately legal terminology appropriate to this area of law.

Assessment

4hr 15 mins unseen examination

Essential reading

• Choo, A. Evidence. (Oxford: Oxford University Press, 2021) sixth edition [ISBN 9780198864172].
• Durston, G. Evidence: text and materials. (Oxford: Oxford University Press, 2011) second edition [ISBN 9780199583607].