Part 6 and 7

• Types of evidence

  • Oral evidence
  • Documentary evidence
  • Real evidence - evidence brought into court, called production (items, forensics)
• Crown

  Has to lead witnesses to give evidence
• Joint minute of agreement

  Agreed on evidence admission
• Relevant evidence

  Has a logical link to crime
• Admissible evidence

  Only relevant evidence is admissible
• Past convictions are not always admissible
• Hearsay is not admissible, unless it is a confession
• Facta probanda


  Facts to be proved
• Facta probationis


  Facts of the proof/circumstantial evidence
• Burdens of proof

  • Persuasive
  • Evidential
  • Incidence
• Standard of proof

  Beyond reasonable doubt
• Criminal Procedure (Scotland) Act 1995, S51A and S51B
• Competency and compellability of witnesses

  All witnesses are competent and compellable unless proved not to be, except the accused
• Wide range of digital evidence
• Minor impropriety

  Evidence still admissible
• Balancing act

  Higher stakes higher amount of impropriety allowed
• Confessions

  Voluntary statement given freely, does not have to be verbal, cannot assume guilt due to usage of silence
• Once main suspect is in police mind, then there should not be any further questioning only arrest
• Confessions should be given spontaneously and freely
• Confessions are never a goal
• Character evidence

  Generally not admissible since it is deemed to be "collateral, in effect irrelevant", can always lead good character evidence, character of complainers: sexual history evidence
• Criminal Procedure (Scotland) Act 1995, ss274, 275 and 275A
• Accused may raise action to reveal complainers sexual history, usually in sexual assault cases and used to defame the complainers character
• CPA - broadly there is now statutory prohibition of introducing bad character evidence, even with sexual history for both sides
• Pre-trial approval - previous convictions can be revealed, if the sexual history is revealed so can previous convictions which be very damaging for the accused
• Criminal procedure (Scotland) Act 1995, s101(1): "Previous convictions against the accused shall not, subject to [some exceptions] be laid before the jury..."
• Criminal Procedure (Scotland) Act 1995, s 166(3): "The previous convictions against the accused shall not, subject to [some exceptions] be laid before the judge..."
• Statutory mean that prosecution cannot let the jury or judge know of previous convictions, witnesses cannot reveal previous convictions
• Exceptions to hearsay being inadmissible

  • Identification evidence
  • Documents
  • Res gestae
  • Confessions
  • Statutory exceptions - CPA 1995 s259
• Hearsay is allowed if it is the best evidence available - victims testifies who harmed them on their deathbed, whoever heard the testimony can be used as hearsay evidence
• heresay

  CPA 1995 s259 exceptions apply where the person who made the original statement is dead, physically/mentally unfit, out with the UK, cannot be found, refuses to give evidence, or refuses to give evidence after being directed by the judge
• Opinion evidence and expert evidence

  General rule: witnesses cannot give testimony about their personal opinions, exception - expert witnesses can give opinion evidence
• Witnesses can give facts they've perceived but not give opinion - the car was driving really fast is okay, but cannot say the car was speeding
• Role of the expert

  To provide the fact finder (judge or jury) with information and context that is out with normal experience
• Vulnerable witnesses and special measures

  CPA, s 271(1) - vulnerable witnesses, CPA, s 271(2) - what courts have to take into account, CPA, s 272H - special measure, Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019
• sufficientSufficiency of evidence and corroboration

  Cadder v H.M. Advocate: '33*'
• Sufficiency of evidence and corroboration

  Moroov v H.M. Advocate
• Sufficiency of evidence and corroboration

  35. Lord Advocate's Reference
• Digital Evidence

  36. Gubinas v H.M. Advocate
• aspects of evidence law

  37. Lawrie v Muir - evidence improperly obtained should be excluded