Law of evidence revision:
Polygraphs:
Useful to point out when evaluating the usefulness of evidence currently in the courts as polygraphs
would allow for potentially more accuracy?
Journal Article Quotes Evaluation.
“The polygraph in the English
courts: a creeping inevitability
or a step too far?” (2017) JCL 81
(1) 66 – 79, J. Elton
Case : Fennel V Jerome Evidence produced
mechanically, chemically or
hypnotically induced test in a
witness as to show the veracity
other otherwise of is
inadmissible.
Adversarial and Inquisitorial Systems:
Case Summary. Evaluation.
R v Marsh [1993] EWCA Crim Lord Taylor- “The whole
551 purpose of the adversarial
process was that the judge sat
and held the ring. It was for
counsel on each side to conduct
examination and cross-
examination and for the judge
to see that they did it fairly.”
R v Goodyear [2005] 1 WLR The defendant was convicted of
2532 (useful on judicial causing death by dangerous
indications of sentence) driving. The judge stated if the
defendant was to plead guilty
to charges he would receive 4-
5 year prison sentence. At
sentencing he was given 7 years
imprisonment.
‘Once an indication has been
given, it is binding and remains
binding on the judge who has
given it, and it also binds any
other judge who becomes
responsible for the case. If,
after a reasonable opportunity
to consider his position in the
light of the indication, the
defendant does not plead
guilty, the indication will cease
to have effect.’
R v Marsh [1993] TLR 375 Adversarial systems-
Lord Taylor: “The whole
, purpose of the adversarial
process was that the judge sat
and held the ring. It was for
counsel on each side to conduct
examination and cross-
examination and for the judge
to see that they did it fairly.”
R v Sharp [1993] 3 All ER 225 Adversarial systems have the
judge as a neutral umpire-
“the judge may be in danger of
seeming to enter into the arena
in the sense he appears partial
to one side. This may arises
from hostile tone or implied
criticism or if the judge is
impressed by a witness.
Descending into the arena Hulusi- The Court of Appeal will
cases: intervene because the judge
R v Hulusi & Purvis (1974) 58 Cr has ascended into the arena.
App 378. Three circumstances, first if the
R v Matthews (1984) 78 Cr App judge invites the jury to
R 23, Purchas LJ disbelieve evidence. Second is
R v Cole [2008] EWCA Crim where the judge prevents the
3234 – the 6 Ps! defence council from doing
R v Tedjame-Mortty [2011] their job from constant
EWCA Crim 950 intervention. The third is where
the judge behaves in such a
way that it prevents the
defendant to explain their
account of what happened.
R v Gunning (Unreported) 1980 Cumming Bruce LJ- The judge is
not an advocate. Under the
English and Welsh system of
criminal trials he is much more
like an umpire at a cricket
match. He is certainly not the
bowler, whose business is to
get the batsman out.”
Journal Article Key Quotes Evaluation.
“Constructing the pre-trial role “The French criminal process is This article speaks about how
of the defence in French largely inquisitorial” the French view defence
criminal procedure: an “Despite the ECHR influence on lawyers and suggest they
adversarial outsider in an recent reforms, guarantees of damage the inquisitorial
inquisitorial process?” (2002) E equality of arms and defence process for the worse as they
& P 6 (1), 1 – 16, Jacqueline rights continue to be viewed by give advantages to wealthier
Hodgson many and adversarial concepts individuals and therefore
and therefore to be resisted.” should not be included in the
outcome of cases.
(French Defence Lawyers)“The
, presence of the defence
lawyer, is universally viewed
with suspicion : the adversarial
outsider in an inquisitorial
process. The participation is
resisted as they are likely to
undermime the enquiry and
distort the truth finding
process. This is unsurprising
given the very negative way in
which defence lawyers have
been regarded even in England
and Wales. They have been
caricatured as crooked lawyers
inventing off the peg defences,
prepared to say anything for a
fee.”
“Is Killing People Right? More (Book) Evaluates the use of evidence
Great Cases that Shaped the as a criminal defence lawyer
Legal World” Allan Hutchinson Canadian case of Kenneth and how it can be hard to
(2016) CUP, Chapter 7 Murray which allowed for the balance protecting the client
evaluation of the ethical but also protecting their
practice of criminal lawyers to professional career. It talks
be put under official and public about the ethical implications
scrutiny. A lawyer held onto that they face as they must
video tapes that could choose their rights and
potentially incriminate his responsibilities wisely.
client for several months and
was charged with the
obstruction of justice. The
dilemma is that if lawyers fail to
disclose to the investing
authorities inculpatory material
evidence against their clients,
they risk professional and
criminal santion; if lawyers do
hand over such incriminating
evidence, they might also sell
their client down rived and also
face professional discipline for
doing so.
Ringalda, A. (2010), “in the Scottish criminal This article discusses whether a
‘Inquisitorial or adversarial? procedure it is required that a rule that requires the defence
The role of the Scottish defendant give prior notice of a to give prior notice of its
prosecutor and special number of defences to the strategy and arguments to the
defences’, Utrecht Law Review, prosecution. If the accused prosecution has any bearing on
6(1): 119-140 neglects to do so, he cannot the role of the prosecutor being
argue the defence or adduce inquisitorial or adversarial. The
any evidence in favour of that rule of special defences in
defence at trial. This is the rule Scottish criminal procedure,
of special defences.” which combines inquisitorial
, Eficiency “adversarial trials take and adversarial characteristics,
a long time, and thye are costly. is analysed.
Special defences can be
interpreted as a way of
increasing efficiency , by
informing the prosecution
beforehand the defence
strategy will be pursued, he can
prepare more adequately. If
they are indeed used for
efficiency, their presence has
no direct bearing on the
inquisitorial or adversarial
nature of the prosecution.
However, history shows us that
Scottish Criminal procedure is
based in part on inquisitorial
ideas. These ideas have laid the
groundwork for the rule of
special defences. “
“A rule that requires the
defence to inform the
prosecution about strategy and
arguments can be related to
the inquisitorial role of the
prosecution, even if the
procedural system in which the
rule operates is predominantly
adversarial. This inquisitorial
role then requires the
prosecution to use the
information to the benefit of
the defence, for instance by
investigating the arguments
and searching for evidence in
their support. This also requires
the prosecution to take an
impartial or magisterial stance.
Within an adversarial setting,
informal cooperation with the
defence may allow the
prosecutor to do so. The
defence, in turn, may become
dependent on the impartiality
of the prosecutor and his
assistance in investigating lines
of defence. If so, the fulfilment
of the prosecutor’s inquisitorial
role becomes a precondition
for the fairness of the trial.
However, if internal guidelines
Polygraphs:
Useful to point out when evaluating the usefulness of evidence currently in the courts as polygraphs
would allow for potentially more accuracy?
Journal Article Quotes Evaluation.
“The polygraph in the English
courts: a creeping inevitability
or a step too far?” (2017) JCL 81
(1) 66 – 79, J. Elton
Case : Fennel V Jerome Evidence produced
mechanically, chemically or
hypnotically induced test in a
witness as to show the veracity
other otherwise of is
inadmissible.
Adversarial and Inquisitorial Systems:
Case Summary. Evaluation.
R v Marsh [1993] EWCA Crim Lord Taylor- “The whole
551 purpose of the adversarial
process was that the judge sat
and held the ring. It was for
counsel on each side to conduct
examination and cross-
examination and for the judge
to see that they did it fairly.”
R v Goodyear [2005] 1 WLR The defendant was convicted of
2532 (useful on judicial causing death by dangerous
indications of sentence) driving. The judge stated if the
defendant was to plead guilty
to charges he would receive 4-
5 year prison sentence. At
sentencing he was given 7 years
imprisonment.
‘Once an indication has been
given, it is binding and remains
binding on the judge who has
given it, and it also binds any
other judge who becomes
responsible for the case. If,
after a reasonable opportunity
to consider his position in the
light of the indication, the
defendant does not plead
guilty, the indication will cease
to have effect.’
R v Marsh [1993] TLR 375 Adversarial systems-
Lord Taylor: “The whole
, purpose of the adversarial
process was that the judge sat
and held the ring. It was for
counsel on each side to conduct
examination and cross-
examination and for the judge
to see that they did it fairly.”
R v Sharp [1993] 3 All ER 225 Adversarial systems have the
judge as a neutral umpire-
“the judge may be in danger of
seeming to enter into the arena
in the sense he appears partial
to one side. This may arises
from hostile tone or implied
criticism or if the judge is
impressed by a witness.
Descending into the arena Hulusi- The Court of Appeal will
cases: intervene because the judge
R v Hulusi & Purvis (1974) 58 Cr has ascended into the arena.
App 378. Three circumstances, first if the
R v Matthews (1984) 78 Cr App judge invites the jury to
R 23, Purchas LJ disbelieve evidence. Second is
R v Cole [2008] EWCA Crim where the judge prevents the
3234 – the 6 Ps! defence council from doing
R v Tedjame-Mortty [2011] their job from constant
EWCA Crim 950 intervention. The third is where
the judge behaves in such a
way that it prevents the
defendant to explain their
account of what happened.
R v Gunning (Unreported) 1980 Cumming Bruce LJ- The judge is
not an advocate. Under the
English and Welsh system of
criminal trials he is much more
like an umpire at a cricket
match. He is certainly not the
bowler, whose business is to
get the batsman out.”
Journal Article Key Quotes Evaluation.
“Constructing the pre-trial role “The French criminal process is This article speaks about how
of the defence in French largely inquisitorial” the French view defence
criminal procedure: an “Despite the ECHR influence on lawyers and suggest they
adversarial outsider in an recent reforms, guarantees of damage the inquisitorial
inquisitorial process?” (2002) E equality of arms and defence process for the worse as they
& P 6 (1), 1 – 16, Jacqueline rights continue to be viewed by give advantages to wealthier
Hodgson many and adversarial concepts individuals and therefore
and therefore to be resisted.” should not be included in the
outcome of cases.
(French Defence Lawyers)“The
, presence of the defence
lawyer, is universally viewed
with suspicion : the adversarial
outsider in an inquisitorial
process. The participation is
resisted as they are likely to
undermime the enquiry and
distort the truth finding
process. This is unsurprising
given the very negative way in
which defence lawyers have
been regarded even in England
and Wales. They have been
caricatured as crooked lawyers
inventing off the peg defences,
prepared to say anything for a
fee.”
“Is Killing People Right? More (Book) Evaluates the use of evidence
Great Cases that Shaped the as a criminal defence lawyer
Legal World” Allan Hutchinson Canadian case of Kenneth and how it can be hard to
(2016) CUP, Chapter 7 Murray which allowed for the balance protecting the client
evaluation of the ethical but also protecting their
practice of criminal lawyers to professional career. It talks
be put under official and public about the ethical implications
scrutiny. A lawyer held onto that they face as they must
video tapes that could choose their rights and
potentially incriminate his responsibilities wisely.
client for several months and
was charged with the
obstruction of justice. The
dilemma is that if lawyers fail to
disclose to the investing
authorities inculpatory material
evidence against their clients,
they risk professional and
criminal santion; if lawyers do
hand over such incriminating
evidence, they might also sell
their client down rived and also
face professional discipline for
doing so.
Ringalda, A. (2010), “in the Scottish criminal This article discusses whether a
‘Inquisitorial or adversarial? procedure it is required that a rule that requires the defence
The role of the Scottish defendant give prior notice of a to give prior notice of its
prosecutor and special number of defences to the strategy and arguments to the
defences’, Utrecht Law Review, prosecution. If the accused prosecution has any bearing on
6(1): 119-140 neglects to do so, he cannot the role of the prosecutor being
argue the defence or adduce inquisitorial or adversarial. The
any evidence in favour of that rule of special defences in
defence at trial. This is the rule Scottish criminal procedure,
of special defences.” which combines inquisitorial
, Eficiency “adversarial trials take and adversarial characteristics,
a long time, and thye are costly. is analysed.
Special defences can be
interpreted as a way of
increasing efficiency , by
informing the prosecution
beforehand the defence
strategy will be pursued, he can
prepare more adequately. If
they are indeed used for
efficiency, their presence has
no direct bearing on the
inquisitorial or adversarial
nature of the prosecution.
However, history shows us that
Scottish Criminal procedure is
based in part on inquisitorial
ideas. These ideas have laid the
groundwork for the rule of
special defences. “
“A rule that requires the
defence to inform the
prosecution about strategy and
arguments can be related to
the inquisitorial role of the
prosecution, even if the
procedural system in which the
rule operates is predominantly
adversarial. This inquisitorial
role then requires the
prosecution to use the
information to the benefit of
the defence, for instance by
investigating the arguments
and searching for evidence in
their support. This also requires
the prosecution to take an
impartial or magisterial stance.
Within an adversarial setting,
informal cooperation with the
defence may allow the
prosecutor to do so. The
defence, in turn, may become
dependent on the impartiality
of the prosecutor and his
assistance in investigating lines
of defence. If so, the fulfilment
of the prosecutor’s inquisitorial
role becomes a precondition
for the fairness of the trial.
However, if internal guidelines
