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Murphy on Evidence

by: Murphy, Peter

Murphy on Evidence

by: Murphy, Peter

ISBN 13:
9780199281138
ISBN 10:
0199281130
Edition: 9th
Format: Paperback
Copyright: 05/11/2006
Publisher: Oxford University Press
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Summary

This ninth edition has been fully revised to deal with the many significant changes that have taken place since the publication of the last edition. In particular, this edition deals with the evidential provisions of the Criminal Justice Act 2003 and the Sexual Offences Act 2003.

Preface to the Ninth Edition

xix

Extract from Preface to the First Edition

xxi

Table of Cases

xxii

Table of Statutes

Table of Statutory Instruments

xlix

Introduction to the Law of Evidence

(17)

What evidence is

(1)

The nature of the judicial trial

(1)

Philosophical basis for use of evidence

(2)

Nature of judicial reasoning

(2)

Development of rules of evidence

(4)

Classification of rules of evidence

(1)

Impact of the European Convention on Human Rights

(6)

The Language of the Law of Evidence

(16)

Inconsistency of terminology

(1)

Basic terminology of the law of evidence

(1)

Terminology of the qualities of evidence

(3)

Terminology of the form of evidence

(1)

Terminology of facts to be proved

(1)

Facts in issue

(1)

Facts forming part of the res gestae

(2)

Facts relevant to facts in issue

(4)

Standards of comparison

(1)

Terminology of admissibility and weight

(3)

The Judicial Function in the Law of Evidence

(1)

A DIVISION OF FUNCTIONS

(2)

Tribunals of law and fact

(2)

B FUNCTIONS OF THE JUDGE IN LEGAL ISSUES CONCERNING EVIDENCE

(7)

Admissibility

(6)

Production and effect of evidence

(1)

Withdrawing the case from the jury

(1)

C FUNCTIONS OF THE JUDGE: JUDICIAL DISCRETION

(9)

Inclusionary discretion

(1)

Exclusionary discretion: civil cases

(1)

Exclusionary discretion: criminal cases

(4)

Application of s. 78

(2)

Discretion confined to prosecution evidence

(1)

D FUNCTIONS OF THE JUDGE: ADMISSIBILITY OF EVIDENCE ILLEGALLY OR UNFAIRLY OBTAINED

(14)

General principles of admissibility

(5)

Discretionary exclusion of evidence illegally or unfairly obtained at common law

(3)

Exclusion of evidence illegally or unfairly obtained under s. 78

(5)

Questions for discussion

(1)

The Burden and Standard of Proof

(1)

A THE BURDEN OF PROOF

(30)

Introduction

(2)

The legal or persuasive burden of proof

(1)

The evidential burden

(1)

The effect of presumptions on the burden of proof

(2)

The legal burden of proof in civil cases

(4)

The evidential burden in civil cases

(1)

The burden of proof in criminal cases

(1)

Defence burdens of proof before Lambert

(4)

Defence burdens of proof after Lambert

(14)

The burden of proof of secondary facts

(1)

B THE STANDARD OF PROOF

(21)

Introduction

(1)

Criminal cases: standard of proof required of prosecution

(3)

Standard of proof required of defence

100

(1)

Standard of proof of secondary facts

100

(2)

The standard of proof in civil cases

102

(5)

The standard of proof in matrimonial and family cases

107

(1)

Questions for discussion

108

(2)

Character Evidence I: Character Evidence Generally; In Civil Cases; Evidence Of Good Character

110

(7)

Uses and development of character evidence

110

(5)

Relevance of evidence of character

115

(2)

A EVIDENCE OF CHARACTER IN CIVIL CASES

117

(3)

Introduction

117

(1)

Defamation cases: character a fact in issue

118

(1)

Evidence of good character

118

(1)

Evidence of bad character

119

(1)

B EVIDENCE OF GOOD CHARACTER IN CRIMINAL CASES

120

(11)

Admissibility and methods of proof

120

(1)

Kinds of evidence permitted

121

(1)

Rebuttal of evidence of good character

122

(2)

Evidential value of evidence of good character

124

(1)

Direction to jury: generally; more than one accused

125

(4)

Questions for discussion

129

(1)

Character Evidence II: Evidence of Bad Character

130

(1)

A THE CRIMINAL JUSTICE ACT 2003

131

(11)

Introduction

131

(2)

Basic rule: admissibility of evidence of bad character exclusively statutory

133

(1)

Basic definitions

134

(4)

Proof of bad character

138

(3)

Other definitions

141

(1)

B SECTION 101: EVIDENCE OF BAD CHARACTER OF ACCUSED

142

(23)

Evidence of accused's bad character in general

142

(1)

Ground (a): all parties agree to evidence being admissible

143

(1)

Ground (b): the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination to elicit it

143

(2)

Ground (c): it is important explanatory evidence

145

(2)

Ground (d): it is relevant to an important matter in issue between the defendant and the prosecution

147

(7)

Ground (e): evidence having substantial probative value in relation to important matter in issue between defendant and co-defendant

154

(4)

Ground (f): it is evidence to correct a false impression given by the defendant

158

(4)

Ground (g): defendant has made an attack on another person's character

162

(3)

C SECTION 100: EVIDENCE OF BAD CHARACTER OF PERSONS OTHER THAN ACCUSED

165

(6)

Introduction

165

(2)

Requirement of leave

167

(2)

Section 100(1)(a): it is important explanatory evidence

169

(1)

Section 100(1)(b): evidence having substantial probative value

169

(1)

Factors relevant to probative value

170

(1)

D SAFEGUARDS UNDER CRIMINAL JUSTICE ACT 2003

171

(7)

Introduction

171

(1)

Section 101(3): duty to exclude evidence in certain cases

172

(2)

Section 107: duty to stop case where evidence contaminated

174

(3)

Other safeguards

177

(1)

E OTHER STATUTORY PROVISIONS DEALING WITH BAD CHARACTER

178

(12)

Conviction or bad character as an element of offence

178

(1)

Evidence admissible under s. 27(3) of the Theft Act 1968

179

(1)

Evidence of sexual behaviour of complainants

180

(1)

Restrictions on evidence of sexual behaviour under s. 41 of the Youth Justice and Criminal Evidence Act 1999

181

(2)

Sexual behaviour and false accusations

183

(2)

Interpretation of s. 41 and the European Convention

185

(1)

General restrictions: s. 41(1) and (2)

185

(1)

Section 41(3)(a)

186

(1)

Section 41(3)(b) and (c)

187

(1)

Section 41(5)

188

(1)

Questions for discussion

188

(2)

The Rule Against Hearsay I: Scope and Working of the Rule

190

(1)

A THE RULE AGAINST HEARSAY

190

(13)

Definition of hearsay

190

(2)

Dangers of hearsay evidence

192

(1)

Development of exceptions and reform of rule

193

(4)

Hearsay tendered by the defence

197

(3)

Hearsay and the European Convention on Human Rights

200

(3)

B HEARSAY AND NON-HEARSAY STATEMENTS

203

(29)

Hearsay and non-hearsay statements: the two questions

203

(4)

The first question: when and how made?

207

(1)

The second question: for what purpose tendered?

208

(1)

Hearsay statements

209

(2)

Non-hearsay statements

211

(1)

Statement having legal effect or significance

211

(1)

Statement admissible to prove that it was made or was made on a particular occasion or in a certain way

212

(1)

Statement as circumstantial evidence of state of mind

212

(4)

Statement as circumstantial evidence of other relevant facts

216

(4)

Three hearsay problems

220

(5)

Practical considerations: avoidance and evasion

225

(2)

Questions for discussion

227

(1)

The Rule Against Hearsay II: Common Law and Statutory Exceptions

228

(4)

Introduction

229

(3)

A PRESERVED COMMON LAW EXCEPTIONS

232

(12)

Introduction

232

(3)

The res gestae principle

235

(1)

Res gestae: statements accompanying and explaining relevant acts

235

(1)

Res gestae: statements by persons emotionally overpowered by events

236

(3)

Res gestae: contemporaneous declarations of the physical or mental state of the speaker

239

(1)

Public information exceptions

240

(3)

Evidence of age and date of birth

243

(1)

B HEARSAY ADMISSIBLE BY STATUTE IN CRIMINAL CASES

244

(20)

Introduction: Criminal Justice Act 2003, s. 114(1)

244

(1)

Section 116(1): relevant person unavailable

245

(2)

Section 116(2): Conditions pertaining to unavailability

247

(1)

Cases (a) and (b): relevant person dead or unfit to be witness

248

(1)

Case (c): relevant person outside United Kingdom and attendance cannot be secured

248

(1)

Case (d): relevant person cannot be found

249

(1)

Case (e): relevant person not giving evidence because of fear; requirement of leave

249

(3)

Sections 114(1)(a) and 117: business and other documents

252

(1)

Section 117(2): guarantees of reliability of business documents

253

(2)

Section 117(4): documents prepared for purposes of proceedings or investigation

255

(1)

Section 117(6) and (7): exclusion of particular documents

256

(1)

Section 114(1)(d): admission of hearsay in interests of justice

256

(1)

Sections 119, 120, and 122: previous statements by witnesses

257

(1)

Section 133: proof of statements in documents

258

(1)

Safeguards in relation to admission of hearsay evidence

258

(1)

Section 125: duty to stop case where evidence unconvincing

259

(1)

Section 126(1): exclusionary discretion

260

(1)

Section 123: inquiry into capability of maker of statement

261

(1)

Section 124: impeachment of maker of hearsay statement

262

(1)

Section 132: rules of court

262

(1)

Hearsay statements produced by computers

262

(2)

C HEARSAY ADMISSIBLE BY STATUTE IN CIVIL CASES

264

(6)

Evidence admissible by virtue of the Civil Evidence Act 1995

264

(1)

Abolition of the rule against hearsay in civil proceedings

265

(1)

Meaning of `civil proceedings'

265

(1)

Procedural safeguards

266

(1)

Weight

267

(1)

Other provisions

267

(1)

Questions for discussion

268

(2)

The Rule Against Hearsay III: Admissions and Confessions

270

(1)

A ADMISSIONS

270

(10)

Principles of admissibility

271

(2)

What admissions may bind a party

273

(6)

What may be proved by admission

279

(1)

B CONFESSIONS

280

(86)

Admissibility of confessions: introduction, position at common law

280

(3)

Admissibility of confessions by statute

283

(3)

Exclusion of confessions: burden and standard of proof

286

(1)

Exclusion of confessions: statements obtained by oppression

286

(2)

Exclusion of confessions: unreliable confessions

288

(3)

Evidence yielded by inadmissible confessions

291

(1)

Excluded confessions as relevant non-hearsay evidence

292

(1)

Confessions by the mentally handicapped and those otherwise impaired

293

(2)

The Codes of Practice and the discretionary exclusion of confessions

295

(7)

Use of confessions by co-accused

302

(3)

Practice: use of evidence given by accused on voir dire

305

(1)

Practice: use of confessions

306

(2)

Confessions implicating co-accused

308

(3)

Partly adverse ('mixed') statements

311

(3)

Questions for discussion

314

(1)

The Rule Against Hearsay IV: The Accused's Denials and Silence

315

(24)

Introduction

315

(2)

The accused's denials

317

(1)

The accused's silence at common law

318

(5)

Dissatisfaction with the common law rule

323

(1)

Statutory provisions: general principles

323

(6)

Accused's failure to mention facts when questioned or charged

329

(6)

Accused's failure to account for objects, substances, or marks

335

(2)

Accused's failure to account for presence at scene of offence

337

(1)

Questions for discussion

337

(2)

Opinion Evidence

339

(26)

General rule

339

(4)

General reputation: principles of admissibility

343

(3)

Expert-opinion evidence: competence, admissibility, and weight

346

(3)

Function of expert evidence

349

(5)

Materials used by expert in forming opinion

354

(3)

Disclosure of expert evidence

357

(2)

Common subjects of expert evidence

359

(3)

Non-expert opinion evidence: principles of admissibility

362

(2)

Questions for discussion

364

(1)

Previous Judgments as Evidence

365

(1)

Introduction

365

(1)

A JUDGMENTS AS EVIDENCE OF THEIR EXISTENCE, CONTENT, AND LEGAL EFFECT

366

(2)

Introduction

366

(1)

Judgments in rem and in personam

367

(1)

B JUDGMENTS AS EVIDENCE OF THE FACTS ON WHICH THEY WERE BASED: PARTIES AND PRIVIES

368

(11)

Introduction

368

(1)

Civil cases: estoppel per rem judicatam generally

369

(1)

Cause-of-action estoppel

370

(2)

Issue estoppel

372

(2)

Matrimonial and family cases

374

(1)

Criminal cases

375

(4)

C JUDGMENTS AS EVIDENCE OF THE FACTS ON WHICH THEY WERE BASED: STRANGERS

379

(16)

Generally

379

(1)

The rule in Hollington v Hewthorn

380

(1)

Reversal of the rule in Hollington v Hewthorn in civil cases

380

(5)

Reversal of the rule in Hollington v Hewthorn in criminal cases

385

(1)

Persons other than the accused

386

(1)

Scope of s. 74(1) generally

387

(4)

The accused

391

(1)

Disproof of conviction; art. 6 of the Convention

391

(1)

Proof of underlying facts

392

(1)

Sections 73--75: general considerations

393

(1)

Questions for discussion

393

(2)

Public Interest Immunity and Privilege I: Public Interest Immunity

395

(1)

A PUBLIC INTEREST IMMUNITY AND PRIVILEGE CONTRASTED

395

(10)

General principles

395

(3)

Possibility of waiver

398

(3)

Use of secondary evidence

401

(4)

B PUBLIC INTEREST IMMUNITY

405

(30)

Applications to withold material subject to public interest immunity

405

(4)

The national interest: the `affairs of state' cases

409

(3)

May the court question the claim to withhold?

412

(2)

By what criteria should the claim to withhold be judged?

414

(5)

Governmental and administrative matters

419

(5)

Information given for the detection of crime etc.

424

(5)

Confidentiality

429

(2)

Questions for discussion

431

(1)

Public Interest Immunity and Privilege II: Privilege

432

(3)

Privilege generally

432

(3)

A PRIVILEGE AGAINST SELF-INCRIMINATION

435

(10)

The need for the privilege against self-incrimination

435

(1)

Scope of the privilege

436

(3)

Self-incrimination under foreign law

439

(1)

Incrimination of spouses and others

440

(2)

Statutory derogations from the privilege: the European Convention

442

(3)

B LEGAL PROFESSIONAL PRIVILEGE

445

(15)

The two kinds of legal professional privilege; the privilege a fundamental right

445

(2)

Communications between lawyer and client: scope of privilege

447

(2)

Communications with third parties: scope of privilege

449

(2)

No privilege for evidential material

451

(1)

Cases involving the welfare of children

452

(4)

Communications in furtherance of crime or fraud

456

(1)

The dilemma of joint clients

457

(1)

Duration legal professional privilege

457

(2)

Search warrants

459

(1)

C OTHER PRIVILEGES

460

(12)

Matrimonial communications

460

(1)

Sources of information contained in publications: common law

461

(1)

Contempt of Court Act 1981, s. 10

462

(6)

Without-prejudice negotiations

468

(3)

Questions for discussion

471

(1)

Witnesses: Competence and Compellability; Oaths and Affirmations

472

(1)

A COMPETENCE AND COMPELLABILITY

472

(29)

General rule

472

(1)

Common law exceptions

473

(1)

Statutory general rule of competence in criminal proceedings

474

(3)

Parties to the proceedings generally

477

(1)

The accused in a criminal case

478

(2)

Inferences from accused's failure to give evidence

480

(5)

The spouse of the accused

485

(2)

Competence and compellability of spouse at common law

487

(1)

Competence and compellability of spouse by statute

488

(1)

Former spouses: the rule in Monroe v Twistleton

489

(2)

Children of tender years

491

(4)

Persons of defective intellect

495

(2)

Judges and jurors

497

(3)

Miscellaneous exceptions to the rule of compellability

500

(1)

B OATHS AND AFFIRMATIONS

501

(11)

The requirement of sworn evidence

501

(1)

Effect of oaths and affirmations

502

(1)

Exceptions to the requirement of sworn evidence

503

(1)

Questions for discussion

504

(1)

Examination in Chief

505

(7)

Nature and conduct of examination in chief

505

(2)

Previous statements by witness and memory-refreshing documents: outline

507

(5)

A REFRESHING THE MEMORY

512

(6)

Introduction

512

(3)

Admissibility of memory-refreshing documents in chief

515

(2)

Admissibility of statements of past recollection recorded

517

(1)

Refreshing memory of witness by hypnosis

517

(1)

B PREVIOUS CONSISTENT STATEMENTS

518

(8)

Previous consistent statements: general rule

518

(1)

Statements admissible under the res gestae rule

518

(1)

Wholly or partly exculpatory statements made by the accused when questioned about the offence

519

(1)

Rebuttal of allegation of recent fabrication

519

(2)

Recent complaints

521

(2)

Statements of identification

523

(3)

C UNFAVOURABLE AND HOSTILE WITNESSES

526

(4)

Meaning of `hostile'

526

(1)

Use of other evidence

527

(1)

Direct discrediting by impeachment

528

(2)

D PRESENTATION OF EVIDENCE BY NON-TRADITIONAL MEANS

530

(10)

Introduction

530

(2)

Criminal cases

532

(4)

Civil cases

536

(2)

Questions for discussion

538

(1)

Cross-Examination and Beyond

539

(1)

Introduction

539

(1)

A CROSS-EXAMINATION: GENERAL PRINCIPLES

540

(9)

Liability to cross-examination

540

(2)

Effect of omission to cross-examine

542

(1)

Limitations on cross-examination by accused in person

543

(4)

Application of the rules of evidence to cross-examination

547

(2)

B CROSS-EXAMINATION AS TO CREDIT

549

(12)

Impeachment: meaning of `collateral'

549

(1)

Previous inconsistent statements

549

(2)

General rule of finality of answers on collateral issues

551

(3)

Proof of previous convictions

554

(1)

Proof of bias or partiality

555

(2)

Evidence of reputation for untruthfulness

557

(1)

Medical evidence affecting reliability

558

(1)

Evidence affecting credit of maker of admissible hearsay statement

559

(2)

C CROSS-EXAMINATION ON DOCUMENTS

561

(2)

Documents generally

561

(1)

Documents in the possession of an opponent

562

(1)

D BEYOND CROSS-EXAMINATION

563

(18)

Re-examination

563

(1)

Evidence in rebuttal

564

(2)

Judge's power to call witnesses

566

(1)

Questions for discussion

567

(1)

Corroboration and Suspect Witness Warnings

568

(13)

Introduction

568

(1)

Meaning and function of corroboration

568

(1)

No general requirement for corroboration at common law

569

(2)

Corroboration required as a matter of law

571

(2)

Development of suspect witness warnings

573

(3)

Cases in which suspect witness warning required

576

(2)

Suspect witness warnings and confirming evidence

578

(2)

Questions for discussion

580

(1)

Documentary and Real Evidence

581

(1)

A DOCUMENTARY EVIDENCE

581

(17)

Documentary evidence generally

581

(1)

Meaning of the term `document'

582

(1)

Proof of contents: the primary evidence rule

583

(3)

Kinds of primary evidence

586

(2)

Admissibility of secondary evidence

588

(1)

Party failing to disclose or produce original

588

(1)

Lawful refusal of non-party to produce

589

(1)

Original lost

590

(1)

Production of original impossible

590

(1)

Bankers' books

590

(3)

Proof of business and public authority records

593

(1)

Presentation of documentary evidence in complex cases

594

(1)

Proof of due execution

595

(1)

Evidence of handwriting

595

(2)

Evidence of attestation

597

(1)

Presumptions

597

(1)

B REAL EVIDENCE

598

(5)

Nature of real evidence

598

(1)

Material objects

598

(1)

Appearance of persons or animals

599

(1)

Demeanour of witnesses

599

(1)

Views

599

(1)

Tapes, photographs, film etc.

600

(1)

Questions for discussion

601

(1)

Proof Without Evidence

602

(1)

When evidence may not be required

602

(1)

A FORMAL ADMISSIONS

603

(2)

Civil cases

603

(1)

Criminal cases

604

(1)

B JUDICIAL NOTICE

605

(5)

Effect of judicial notice

605

(1)

Notorious facts

606

(1)

Notice after reference

607

(1)

Judicial notice after evidence

608

(1)

Personal knowledge

609

(1)

C PRESUMPTIONS

610

(12)

Nature of presumptions

610

(1)

Rules improperly described as presumptions

611

(2)

Presumption of legitimacy

613

(2)

Presumption of marriage

615

(1)

Presumption of death

616

(2)

Presumption of regularity

618

(1)

Conflicting presumptions

619

(2)

Questions for discussion

621

(1)

The Queen v Coke; The Queen v Littleton; Blackstone v Coke

622

(1)

A THE QUEEN V COKE; THE QUEEN V LITTLETON

622

(32)

Brief for the prosecution

622

(28)

Brief for the defence

650

(4)

B BLACKSTONE V COKE

654

(13)

Brief for the claimant

654

(11)

Brief for the defendant

665

(2)

Index

667

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Murphy on Evidence

Murphy on Evidence

9780199281138

0199281130

Summary

Author Biography

Table of Contents

Supplemental Materials

Write a Review

Amazon no longer offers textbook rentals. We do!

Murphy on Evidence

Murphy on Evidence

9780199281138

0199281130

Summary

Author Biography

Table of Contents

Supplemental Materials

Write a Review

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