What Is Evidence

WHAT IS EVIDENCE?

Evidence is information, which may be properly presented to the court to establish a fact or point in issue.

RELEVANCE

The basic rule of English Evidence Law is that all relevant evidence is prima facie admissible and all irrelevant evidence is inadmissible.

See DPP v Kilbourne [1973] AC 729

'evidence is relevant if it is probative or disprobative of some matter to be proved or disproved'

In working out whether evidence is relevant the judge will use both logic and experience. Often in deciding whether evidence is relevant the judge will consider the other evidence in the case and the issue or issues in the trial that the evidence will go to prove. If the evidence assists in proving or disproving a fact in issue it will be regarded as relevant. Sometimes a piece of evidence is relevant in that it makes an issue at trial more or less likely but because it merely duplicates other evidence or its admission would add very little to the jury's knowledge the trial judge will rule the piece of evidence inadmissible because it is insufficiently relevant. Remember cost and delay are grounds for ruling relevant evidence inadmissible.

Whilst the basic rule is that all relevant evidence is admissible the trial judge still has a discretion to exclude relevant evidence if it would have an adverse effect on the fairness in the proceedings (s.78 PACE 1984) or if its prejudicial effect outweighs its probative outcome (s.82(3) PACE 1984)

ADMISSIBILITY

The question of relevance is for the trial judge but so also is the question of admissibility.

Admissibility relates to the issue of whether relevant evidence is subject to any exclusionary rule or discretion which will keep the evidence from the jury. The law of evidence is largely about learning the exclusionary rules, discretions and warnings that a judge has to be mindful of during a trial.

In a criminal court the judge normally hears legal argument about issues of admissibility in the absence of the jury either before trial or at trial in a procedure known as the VOIR DIRE- a trial within a trial without the jury being present. The reason for the absence of the jury is that if the judge rules the disputed evidence inadmissible the jury will not have learnt about the inadmissible evidence.

Examples of when the admissibility of evidence will be dealt with in a voir dire is when the trial judge has to decide whether a confession is admissible or not (see lecture 12) or whether a witness is competent (see lecture 4 and s.54(4) YJCEA 1999).

Important examples of such exclusionary doctrines include the hearsay rule which basically prevents the narration in court of what was said out of court.

Another important exclusionary rule is bad character evidence which basically prevents the previous convictions and previous bad acts of the accused from being adduced in court unless they fall into certain gateways. However it is arguable that the new rules under the CJA 2003 are so wide that character evidence can now be thought of as inclusionary in nature.

Other examples of exclusionary rules are those relating to opinion evidence, previous judgments and the rule against narrative

The trial judge's decision to admit or exclude a piece of disputed evidence can have a crucial influence on the outcome of a case. For example if the trial judge decides to let the jury hear of the defendant's confession to the police or lets the jury hear of the defendant's previous convictions then the defence position is seriously weakened - yet this is what happens regularly in crown court trials.

WEIGHT OF THE EVIDENCE:

The decision as to the weight or credibility of evidence is the province of the jury in criminal trials. Whereas in civil cases such decisions are usually made by a trial judge except in the rare cases that a Jury sits (e.g. Libel cases).

The jury decides how much weight to give the evidence, how much value, how much credence. The jury then decide whether the evidence taken as a whole is enough to convict the defendant beyond a reasonable doubt in criminal cases and on a balance of probabilities in civil cases.

In assessing the weight of evidence the jury will use their logic and experience. Typical ways of assessing evidence is to ask whether the piece of evidence contains internal inconsistencies or is inconsistent with undisputed facts or contains glaring omissions or inaccuracies. With the testimony of live witnesses it is also possible to judge their demeanour whilst giving evidence or being cross-examined as a means of testing the reliability of their testimony.

However Lord Bingham comments in his book The Business of Judging: Selected Essays and Speeches' (OUP 2000)

"the current tendency is on the whole to distrust the demeanour of a witness as a reliable pointer to his honesty".

Do The Functions of Judge and Jury Ever Merge?

So the division of labour is for the judge to decide questions of admissibility in other words questions of law and for the jury to decide questions of weight which are questions of fact (in criminal cases this includes the 'ultimate issue', the guilt or innocence of the defendant).

Take confessions as an example. It is up to the judge to decide whether a confession satisfies the test for admissibility in section 76 PACE 1984 but once the confession has been admitted to trial it is up to the jury to decide whether the confession is reliable, in other words whether they believe the confession to be true.

Other judicial functions are to decide whether a witness is competent to give evidence and whether a witness is an expert.

However, sometimes these distinct functions can become blurred for example, see R v Deakin [1994] 4 All ER 769 where the Court of Appeal had to draw a clear line as to where the question of competence of a witness becomes an issue of admissibility for the judge and where it becomes an issue of weight for the jury. Also in criminal cases it is arguable that when the judge decides whether the prosecution has established 'a case to answer' this involves looking at questions of fact which would normally be the