Evidence Law notes
Course information
Tuesday, 18 January 2022
09:37
Information on the Course
22 lectures;
5 Tutorials; and
1 Exam (undertaken remotely).
Formative Assessment: See the Course Guide. Submitted via Turnitin by 12am on February
21.
Summative Assessment: Combination of Essay and Problem questions.
Information on the Course
Core Text: Eamon Keane & Fraser Davidson (eds) Raitt on Evidence Principles, Policy and
Practice (W. Green 3rd edn 2018).
All literature assigned will be available online and via Resource List on Learn.
Topics to be Discussed
General Structure:
Weeks 1 & 2: Setting the Scene;
Week 1: considering what the law of evidence actually is, before
familiarising ourselves with some of its key concepts and terms.
Week 2: infrastructure of the justice system, considering the
criminal trial and the civil proof, along with judicial admissions.
set the legal rules, cases and doctrines in context, and hopefully
aid your understanding of the subject.
Weeks 3 -5: Core Concepts; and
Weeks 6 – 11: Exclusionary Rules
Dealing with cases in evidence:
Understand facts
Identify ratio decidendi
Link case to proposition and topic it represents
But also… learn to read cases quickly
Introductions, Outlines & The
Philosophy of the Law of Evidence
Thursday, 13 January 2022
08:35
Reading:
Raitt on Evidence: Principles, Policy & Practice (3rd edn 2018)
Chapters 1 & 2
,John D. Jackson & Sean Doran, ‘Evidence’ in Dennis Patterson (ed) A Companion to
Philosophy of Law and Legal Theory (Wiley-Blackwell 2nd edn 2010), 177 – 187
*Gubinas v HMA [2017] HCJAC 59
Preliminary Matters
Lecture Overview
Week 1: Setting the Scene
Lecture 1: Introductions to subject and philosophy of the law of evidence.
Lecture 2: Introduction to general concepts & case study.
The Trial of Mr William Burke and Ms Helen McDougal
‘The principles and rules of evidence are among the most sacred rights of the people of this
country… any violation of them, under the influence of feeling, would break down the
securities under which we all live in safety.’
Speaks to central role of law of evidence in just and democratic society; liberty, rule
of law, due process, fairness
Robert Scott Moncrieff, Advocate, in his speech to the jury at the trial of William Burke and
Helen McDougal at the High Court of Justiciary, Edinburgh, 25 December 1828.
What is the Law of Evidence?
The law governing the admission and proof of facts in legal proceedings (litigation).
A simplistic formula for the resolution of legal proceedings:
Evidence -> Facts -> Application of Law to facts -> Justice.
Process of proof.
What is the law of evidence? (2)
Fundamental role of trial: The search for truth and human knowledge at the centre of
litigation.
The rule of law: due process and certain roles which ensure fairness
Ensures equality of arms
About exclusion of certain types of evidence
The adversarial tradition: no unified law of evidence across the world
Scotland has adversarial tradition
o in any litigation it is the parties who decide what evidence is led and make
submissions to the court about which facts should/should not be
established and which law should/should not be applied to the established
facts.
The law of evidence as the rules of the game?
Evidence tells us what parties can/cannot do in the courtroom.
How does one prove anything in court?
,Why do we study the law of evidence?
The Law Society of Scotland & the Faculty of Advocates; require pass in evidence to become
solicitor/advocate.
Vitally important for your future careers.
You shall spend far more time dealing with evidence and facts than you ever will dealing with
the law.
The regulation of the proof of facts is vital in any litigation (criminal or civil).
The Scots law of evidence is unique, interesting and often at the heart of contemporary
political debates about legal reform.
Corroboration, Sexual History and Character Evidence, the not proven verdict etc.
The Philosophy and Purpose of the Law of Evidence; history
Influence of Philosophy (Epistemology); theory of knowledge; how do we know things have
happened?
The Development of the Philosophy of the Law of Evidence
How does one determine truth?
Medieval Times: Trial by Ordeal.
Sources of Knowledge change over time: previously God to now Human Reason
Judgment of God to Judgment of men.
The Rationalist Tradition
The Enlightenment or ‘The Age of Reason’ – Knowledge derives from human reason;
Late 17th century (approx.)
Important development for our understanding of fact finding and the law of
evidence.
At it’s core = truth can be discovered by the application of reason to the evidence presented
(the facts can be determined).
Justice then follows from the application of the law to the facts.
The Structure of the Law of Evidence: Trends and Developments
Bentham’s The Rationale of Judicial Evidence (1827)
First attempt at analysing what happens in court room and how court makes
decisions
Concerns theories of:
o Probability and truth.
o Rectitude of decision; courts reaching the right decision
Bentham put forward idea of mode of Free Proof:
Idea that The law of evidence shouldn’t interfere with obtaining the truth.
Not in any way how the scots law of evidence has developed.
The Structure of the Law of Evidence: Trends and Developments
Bentham’s work causes scholars to react in order to justify why the law of evidence is
structured in the way that it is over the 19th and 20th century.
Scholars sought to justify why exclusionary rules useful
, Led to development of… The New Evidence Scholarship (20th century)
Questions assumptions that the human mind can objectively determine the truth by
looking at facts and applying reason
Revitalised field of work addressing multiple aspects of previously received wisdom:
Critiquing the neutrality of ‘Reason’ & ‘Truth’;
Shifting the focus toward fact construction and not black letter law; and
A critical analysis of the Law of evidence and process of proof.
Trial of Burke and MacDougal
Indicted on three charges of murder but due to submissions from defence counsel trial
proceeds on only one.
Little evidence to incriminate MacDougal but Sir William Rae, the Lord Advocate, proceeds
against her anyway (knowing that sentence will be death if convicted).
Political and social context is outcry at murders from public, but complicity from medical
profession (Dr Knox).
William Hare and Margaret Hare turn King’s evidence; agree to give evidence for the
prosecution
Think about how the law of evidence and process of proof changes over time
Crown concerned about lack of evidence give Hare (a mass murderer) immunity.
Jury urged to reject their evidence.
Neither Burke nor MacDougal entitled to give evidence in their own defence at trial.
Evidence led of their prisoner declarations (‘voluntary’ No access to lawyers etc. )
Miss macdougal acquitted; not proven
Mr burke convicted on one charge of murder - executed
Sources and Trends of the Scots Law of Evidence
Case law and statute;
Institutional writers;
Crime Control; Victims Rights; Due Process.
The Impact of the European Convention on Human Rights.
The Future Direction of the Scots Law of Evidence?
General Concepts & the Philosophy of the
Law of Evidence
Thursday, 13 January 2022
08:37
Lecture Overview
Introduction to General Concepts;
Types of evidence;
Course information
Tuesday, 18 January 2022
09:37
Information on the Course
22 lectures;
5 Tutorials; and
1 Exam (undertaken remotely).
Formative Assessment: See the Course Guide. Submitted via Turnitin by 12am on February
21.
Summative Assessment: Combination of Essay and Problem questions.
Information on the Course
Core Text: Eamon Keane & Fraser Davidson (eds) Raitt on Evidence Principles, Policy and
Practice (W. Green 3rd edn 2018).
All literature assigned will be available online and via Resource List on Learn.
Topics to be Discussed
General Structure:
Weeks 1 & 2: Setting the Scene;
Week 1: considering what the law of evidence actually is, before
familiarising ourselves with some of its key concepts and terms.
Week 2: infrastructure of the justice system, considering the
criminal trial and the civil proof, along with judicial admissions.
set the legal rules, cases and doctrines in context, and hopefully
aid your understanding of the subject.
Weeks 3 -5: Core Concepts; and
Weeks 6 – 11: Exclusionary Rules
Dealing with cases in evidence:
Understand facts
Identify ratio decidendi
Link case to proposition and topic it represents
But also… learn to read cases quickly
Introductions, Outlines & The
Philosophy of the Law of Evidence
Thursday, 13 January 2022
08:35
Reading:
Raitt on Evidence: Principles, Policy & Practice (3rd edn 2018)
Chapters 1 & 2
,John D. Jackson & Sean Doran, ‘Evidence’ in Dennis Patterson (ed) A Companion to
Philosophy of Law and Legal Theory (Wiley-Blackwell 2nd edn 2010), 177 – 187
*Gubinas v HMA [2017] HCJAC 59
Preliminary Matters
Lecture Overview
Week 1: Setting the Scene
Lecture 1: Introductions to subject and philosophy of the law of evidence.
Lecture 2: Introduction to general concepts & case study.
The Trial of Mr William Burke and Ms Helen McDougal
‘The principles and rules of evidence are among the most sacred rights of the people of this
country… any violation of them, under the influence of feeling, would break down the
securities under which we all live in safety.’
Speaks to central role of law of evidence in just and democratic society; liberty, rule
of law, due process, fairness
Robert Scott Moncrieff, Advocate, in his speech to the jury at the trial of William Burke and
Helen McDougal at the High Court of Justiciary, Edinburgh, 25 December 1828.
What is the Law of Evidence?
The law governing the admission and proof of facts in legal proceedings (litigation).
A simplistic formula for the resolution of legal proceedings:
Evidence -> Facts -> Application of Law to facts -> Justice.
Process of proof.
What is the law of evidence? (2)
Fundamental role of trial: The search for truth and human knowledge at the centre of
litigation.
The rule of law: due process and certain roles which ensure fairness
Ensures equality of arms
About exclusion of certain types of evidence
The adversarial tradition: no unified law of evidence across the world
Scotland has adversarial tradition
o in any litigation it is the parties who decide what evidence is led and make
submissions to the court about which facts should/should not be
established and which law should/should not be applied to the established
facts.
The law of evidence as the rules of the game?
Evidence tells us what parties can/cannot do in the courtroom.
How does one prove anything in court?
,Why do we study the law of evidence?
The Law Society of Scotland & the Faculty of Advocates; require pass in evidence to become
solicitor/advocate.
Vitally important for your future careers.
You shall spend far more time dealing with evidence and facts than you ever will dealing with
the law.
The regulation of the proof of facts is vital in any litigation (criminal or civil).
The Scots law of evidence is unique, interesting and often at the heart of contemporary
political debates about legal reform.
Corroboration, Sexual History and Character Evidence, the not proven verdict etc.
The Philosophy and Purpose of the Law of Evidence; history
Influence of Philosophy (Epistemology); theory of knowledge; how do we know things have
happened?
The Development of the Philosophy of the Law of Evidence
How does one determine truth?
Medieval Times: Trial by Ordeal.
Sources of Knowledge change over time: previously God to now Human Reason
Judgment of God to Judgment of men.
The Rationalist Tradition
The Enlightenment or ‘The Age of Reason’ – Knowledge derives from human reason;
Late 17th century (approx.)
Important development for our understanding of fact finding and the law of
evidence.
At it’s core = truth can be discovered by the application of reason to the evidence presented
(the facts can be determined).
Justice then follows from the application of the law to the facts.
The Structure of the Law of Evidence: Trends and Developments
Bentham’s The Rationale of Judicial Evidence (1827)
First attempt at analysing what happens in court room and how court makes
decisions
Concerns theories of:
o Probability and truth.
o Rectitude of decision; courts reaching the right decision
Bentham put forward idea of mode of Free Proof:
Idea that The law of evidence shouldn’t interfere with obtaining the truth.
Not in any way how the scots law of evidence has developed.
The Structure of the Law of Evidence: Trends and Developments
Bentham’s work causes scholars to react in order to justify why the law of evidence is
structured in the way that it is over the 19th and 20th century.
Scholars sought to justify why exclusionary rules useful
, Led to development of… The New Evidence Scholarship (20th century)
Questions assumptions that the human mind can objectively determine the truth by
looking at facts and applying reason
Revitalised field of work addressing multiple aspects of previously received wisdom:
Critiquing the neutrality of ‘Reason’ & ‘Truth’;
Shifting the focus toward fact construction and not black letter law; and
A critical analysis of the Law of evidence and process of proof.
Trial of Burke and MacDougal
Indicted on three charges of murder but due to submissions from defence counsel trial
proceeds on only one.
Little evidence to incriminate MacDougal but Sir William Rae, the Lord Advocate, proceeds
against her anyway (knowing that sentence will be death if convicted).
Political and social context is outcry at murders from public, but complicity from medical
profession (Dr Knox).
William Hare and Margaret Hare turn King’s evidence; agree to give evidence for the
prosecution
Think about how the law of evidence and process of proof changes over time
Crown concerned about lack of evidence give Hare (a mass murderer) immunity.
Jury urged to reject their evidence.
Neither Burke nor MacDougal entitled to give evidence in their own defence at trial.
Evidence led of their prisoner declarations (‘voluntary’ No access to lawyers etc. )
Miss macdougal acquitted; not proven
Mr burke convicted on one charge of murder - executed
Sources and Trends of the Scots Law of Evidence
Case law and statute;
Institutional writers;
Crime Control; Victims Rights; Due Process.
The Impact of the European Convention on Human Rights.
The Future Direction of the Scots Law of Evidence?
General Concepts & the Philosophy of the
Law of Evidence
Thursday, 13 January 2022
08:37
Lecture Overview
Introduction to General Concepts;
Types of evidence;
