What is the definition of evidence in UK criminal law?

In terms of court proceedings, evidence can be defined as any information that is presented with the aim of helping the jury decide whether or not a crime has been committed. Evidence is heard, principally, to help determine the truth of a case.

In every court case, the involved parties have a requirement to present evidence that supports their testimonies. This is true for both the claimant/prosecution and for the defence. Without the aid of supporting evidence, any claims made by either party will be unsubstantiated, and at high risk of failing.

What is an exhibit?

In a court of law, an exhibit is a document or other item that is shown to a witness, or referred to by a witness in evidence.

In the UK, it is the duty of the police officer responsible for investigating the alleged crime to retain in their possession any items which may be viewed as evidence of the crime. After committal, when the case is pending trial, the exhibits are passed to the prosecution, who have a duty to not only protect the exhibits by keeping them safe from loss or damage, but to work with the defence, allowing them reasonable access to the exhibits for reasons such as inspection and examination. The duty of presenting the exhibits in court is also given to the prosecution.

When is a piece of evidence admissible?

In the UK, there are strict laws which govern whether or not a piece of evidence can be admitted into court. To ensure that the trial is fair, the court must determine whether a suggested piece of evidence is admissible or subject to exclusion.

For evidence to be deemed admissible and either heard or presented in court, the following criteria must be satisfied:

1. Probative (having the quality of proving something)

For evidence to be considered probative, and therefore admissible, it must add value to the case, and must be credible. If a piece of evidence has low probative value, it means that it is unlikely to aid the jury in their ability to accurately prove or disprove the case before them. In such cases, the evidence is likely to be dismissed.

2. Non prejudicial (not harmful to)

In order for evidence to be considered non-prejudicial, it must be factual and impartial. Evidence which would otherwise be deemed admissible can be excluded if it is determined to be unfairly biased against the defendant.

3. Relevant (connected to the facts of the case)

For evidence to be regarded as relevant, and thus admissible, it must relate to the matter being discussed by making it either more or less provable. Ultimately, in order for evidence to be deemed reliable, it must help to either prove or disprove the guilt of the defendant.

4. Coherent (logical and consistent)

All evidence given to the court must make sense to the court. It must be presented in a way which is logical and easy to follow and understand. In other words, the evidence must be given in chronological order, and it must be detailed.

5. Provable (able to demonstrate proof)

The evidence must be provable, unless the law allows otherwise; for example, in some circumstances, an assumption can be made.

What is the 'res gestae rule?'

'Res gestae' is a Latin phrase which translates to 'things done'. It is a rule which allows a witness time to put their evidence into context. Sometimes, if an event is described on its own, in isolation of the wider circumstances, it may not make sense or seem relevant. As such, the judge may decide to enact the 'res gestae' rule and allow the witness time to establish the scene for their evidence. In such cases, the court will allow the witness sufficient time to relay the contextual facts surrounding their evidence. In cases where the additional information may not be probative or may derive from hearsay, the judge will have to assess whether to allow the additional information to be given.

What are the classifications of evidence?

Direct Evidence

Direct evidence is evidence that was learned, directly, by the witness presenting it. It can be defined as evidence which has been acquired by the witness through their senses, and can therefore include knowledge of a crime which was garnered through seeing, hearing, or touching. It should not be evidence that was overheard or learned through hearsay. During court proceedings, the court and the jury should be satisfied that, on the basis of the direct evidence presented, they can reach a decision on the information given without additional information. They should not be required to make any assumptions about the facts before them. The jury's sole role when hearing direct evidence is to determine whether or not they believe that the witness delivering the information is telling the truth.

Witnesses can present their evidence orally, by swearing an oath and delivering spoken evidence in court, or through a signed witness statement, which faithfully recounts the witness's own version of events.

Circumstantial evidence

Circumstantial evidence differs from direct evidence in that it is evidence which is not drawn from direct observation of a fact or event. Instead, it is evidence which is inferred from a set of circumstances that relate to the event. In criminal law, circumstantial evidence allows a conclusion to be drawn from a set of circumstances. For example, if a defendant were charged with stealing items from a shop, their guilt could be proven if a witness had direct evidence, obtained through their senses, that the defendant stole the items in question. In other words, if the defendant saw the crime take place, their evidence could be used to prove the defendant's guilt. In the absence of such direct evidence, however, circumstantial evidence can be used to determine a conclusion. In such an event, evidence such as the fact that the defendant was seen running from the shop around the time of the alleged theft could be interpreted by the jury as potential proof of the individual's guilt. If more circumstantial evidence then came to light, such as, perhaps, a sighting of the individual with the alleged stolen items, the evidence could be used to prove the defendant's guilt. In this way, circumstantial evidence, although not direct, is not necessarily weaker than direct evidence, providing that there is enough of it to lead a jury to make a reasonable verdict that is within the realms of reasonable doubt.

Primary Evidence

Primary evidence, also known as best evidence, is the best available evidence of the existence of an object. Usually, primary evidence takes the form of the object itself, such as a knife in an assault case, but it can also take the form of a substantiated statement about the primary evidence. It is usually required in cases where the contents of a document have to be proven; in such cases, the document itself is needed to prove that what is contained within it matches with what the prosecution claim exists within it.

Secondary Evidence

Secondary evidence is evidence which has been reproduced from an original document, such as a photocopy of a document or a photograph that would have been considered primary evidence. Secondary evidence can also exist in the form of an oral statement about the contents of a piece of evidence. Compared to primary evidence, it is deemed less reliable, but it can still be permitted as an admissible piece of evidence in court, providing that its validity can be reliably proven.

Forensic Evidence

In certain cases, it may be necessary to carry out forensic tests on a piece of evidence. For forensic evidence to be considered admissible in court, it must have been carried out by verified forensic experts. Providing the results have been collated by such qualified individuals, and providing they satisfy the same standards of admissibility as other forms of evidence, the results can be presented as evidence in court.

Expert Evidence

Generally, evidence which is based on opinion rather than observable fact is not permitted in court. One major exception to this rule, however, exists in the form of expert evidence, which constitutes the opinions of 'experts' enlisted to aid the understanding of a judge or jury. In Folkes v Chadd (1782), the ruling allowed the use of expert evidence in cases where the jury lacked the knowledge or experience required to make an informed and reliable verdict. In such cases, such as cases which involve matters of science, 'expert' witnesses are permitted to give their opinion if, by doing so, they are able to inform the jury and allow them to come to a more knowledgeable and reliable verdict than they would have otherwise reached. For example, an expert in a particular field of science may be able to provide information to a jury which allows them to more reliably process the information presented to them and draw a reasonable conclusion.

Although admissible in many cases, there are instances where expert opinions are not permitted. In 1975, the ruling of R v Turner resulted in some expert evidence being dismissed on the grounds that the jury already had the knowledge and experience required to make a judgement, and that hearing an expert's opinion was more likely to mislead rather than inform their decision.

If it is determined that, on the facts available, a judge or jury should be able to form their own conclusions without outside help, then the opinion of an expert is deemed unnecessary on the grounds that it could be misleading. For example, if the opinion presented by an expert is embellished with confusing jargon, the jury may become more confused as a result, and thus less able than they had been previously to make a reliable decision. In other words, there is a risk that expert evidence may be misleading because the jury may not understand the scientific language being used by the expert, and may make an incorrect decision as a result. Furthermore, there is an additional risk that the opinion of the expert may be treated as fact and trusted by the jury simply because the person is a qualified expert; their qualifications, and the potentially confusing language they employ, may distract a jury from the need to consider whether the opinion is right or wrong.

If it is determined that the judge or jury could make their own conclusions without excessive amounts of help, then the opinion of an expert is unnecessary.

Forms of evidence

The classified types of evidence can be presented in various forms, including, but not limited to:

  • testimony
  • real evidence
  • hearsay
  • confessions
  • documentary evidence
  • business documents

Oral Testimony

Testimony is evidence that is given orally in court. Witnesses testifying in court must give their evidence under oath or affirmation. When providing evidence, the witness is asking the court to believe that they are telling the truth; as such, the court's role is to determine whether or not the witness is telling the truth, and how the witness presents themselves can affect whether they are believed.

Hearsay

When providing witness testimonies, witnesses are generally expected to provide direct evidence - evidence that they have obtained through their own observation of the crime. Hearsay, as defined by Chapter 2 of the Criminal Justice Act 2003, concludes that hearsay is 'a statement not made in oral proceedings'. In other words, hearsay is second-hand evidence, collected from a third-party's experience. For a witness, hearsay would constitute any information garnered from an overheard conversation; any information that has been passed on to them from another person and not directly discovered; or evidence that someone has written. Witnesses who present hearsay in court are not only asking the court to believe them, but also to believe the person who told them the evidence they are recounting. It is on account of the second assumption - that the unknown third party can be trusted - that hearsay is not permitted in criminal cases.

Real Evidence

Real evidence is physical ('real') evidence which can be produced in court and used by the judge or jury to come to a decision. Such evidence could include photographs, a knife or a weapon, a document, or audio tapes.

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