Law of Evidence

Table of Contents

Introduction. 2

Case facts. 2

Analysis of items of evidences in the case. 3

Recovery of stolen property as evidence. 3

Oral evidence. 5

Witness testimony. 6

Conclusion. 9

References. 10

Introduction

The essay is a discussion on an issue touching on the law of evidence. Not all items of evidence carry similar weight and not all are needed for a case to be determined to a conclusion. In evidence law, the goal is to find all admissible and strong evidence to support a legal case. The hypothetical case presented is for stolen goods, the iPhones and the person charged with the crime is David. The case is used to assess which items are admissible, the implications for their use in the court of law, and how they will be used. Using precedents on various cases and theories on criminal law, the essay discusses how such a case would be handled and determined.

Case facts

There have been complaints about the loss of iPhones in a local bar. Following a similar recount of both complaints, there seemed to be a pattern from the complaints on what was targeted and the appearance of an unidentified figure when this alleged crime was taking place. Investigations, using undercover police and the technology of a spy app led to the suspect, David. More evidence was found in his house and this further corroborated the fact that their iPhones were his merchandise. The very phone that was stolen from the undercover police is the one that led the police to the house of the suspect and was recovered from him.

The next essential fact is the motive of the crime. David was seen selling phones, specifically iPhones in another bar, and money-changing hands were seen. However, there was no hard evidence of whom the phones were sold to. The person that was alleged to be in the racket of selling stolen iPhones from David is Kat but has since been in a heart attack. He is unavailable to give his part of the story. David himself refused to testify and besides the phones being found with him, there is no further evidence of what he did with the phones. That he sold the phones in a local pub would not be admissible as it is considered as mere hearsay. The main evidence to link David to the crime and to explain the monetary motive is one from phone retailers such as Carphone Warehouse and Phones4U where the 35 phones found with David were located. This is important evidence that can be used in a court of law to judge David for possession of the stolen property.

Analysis of items of evidences in the case

A summary of the evidence that might be presented in this case includes:

1. The stolen phone was found in David’s possession
2. Oral ‘admission’ of David that ‘a man has to make a living these days’, in reference to the time when he was accosted by the police tracking the spy-installed iPhone

• 35 iPhones were found in his house by the police

1. Matching of phones and names of people who had reported the phones missing to the police
2. Collaboration of evidence by two victims who separately reported seeing ‘a man of ‘’shady looking character’’ with curly black hair’.
3. Connecting David to the retailers of the phones

• Statement of Kat that he at one point saw David exchange money and an iPhone at the local pub

Recovery of stolen property as evidence

This is considered the first evidence to be adduced in the theft of this case where the aim is to prove that a crime was committed. To show that, a person that is accused and the crime has to be shown. The goods, the iPhone devices, and the person, David need to be available for the case to continue. The defence will need to prove that other than the phones being recovered, there is enough reason to charge that the person and crime committed are actual. It is from this step that the next step will call for the assessment of the admissibility of various items of evidence.

Considering the phones that were found in the house, they could be used as evidence only if they matched those that were reported as missing or stolen. The phones had to match the records of those that were stolen or else it would be an implied assertion. The fact they were reported as missing and found elsewhere meant the person found with them would be held answerable and responsible for the said crime. David was found with the phones that were reported as missing but that on its own does not make him a thief. There are many possibilities that could lead to the phones being found in his residence, such as a friend deposited them there or him not knowing they were stolen property. In the case of People v. Smith, the defendant was required to be informed that possession alone does not equate to the guilt of theft. It is possible that the phones were given to him and that cannot make him a thief. This can also be circumstantial evidence if no other evidence will be adduced to incriminate David. On its own, however admissible, it will not be enough.

In the event that other possibilities are introduced as to the reasons for having the property that did not belong to him, he will be required to give a convincing reason. As was in the case of R v Velumyl, the person that was found with property of the supermarket, money stolen from the same in the pretext of returning had the ruling held that the intention was to deprive the company of the same. Equally, it will be illogical to assume in this case that the owner was to return the phones to the owners, having acquired them without their permission and there being no knowledge between the owners of the phones and David.  The phone as covered under Theft Act 1968 includes ‘money and other property, real or personal, including things in action and other intangible property. The phones were legal personal property that was taken away from their owners without their intention. The owners, therefore, have a right to get their personal property returned to them.

Although the phone that was directly linked to him was that of PC Strange, it is supposed to provide further evidence that it would be used for the same purpose as the other 35 devices that were recovered in his house. It was supposed to link with the character and purpose for which they were acquired, which as he claimed, ‘a man has to make a living these days’. Another fact that could be adduced to this case is the nature of phones. If all 35 devices are not new but functional, that large number could be indicative of illegal acquisition of the devices. The owner could be required to state the source and produce evidence that is unique for each case such as original packaging and receipt or any document to indicate how they were acquired.

As stated above, different pieces of evidence have different weights and implications. This will be the third last to be presented as is among the strongest and most basic in the conviction of the person with the purported crime. Being found with the items in question is an ultimate fact that will make it easier to begin and sustain the trial. This is primary evidence that the defence will use at the start of the trial.

Oral evidence

In the case of David, the undercover tried to get David to confess on the matter after he had been found with the stolen phone with the spy app, ‘Gotcha Pro’, and other 35 iPhone devices in his residence. This would be the best and most relevant form of evidence from the suspect but that was not to be. David refused to accept when he was questioned, making it imperative to adduce more evidence for him to stand trial and conviction of theft. This would be part of the oral testimony that would be put forward in the case and one which would help in conviction. David, having refused to admit his alleged crime, more testimony would need to be put forward to strengthen the claim and for the prosecutor to prove the suspect was actually the alleged thief of the noted iPhones.

Oral testimony could be used in the court to convict David where there are objects of statements to support this claim. This will be an accurate presentation of facts in relation to the case that will help in concluding it. However, his oral admission that ‘…a man has to make a living somehow these days’… may be used to indicate his intention in the crime. The burden of proof, in this case, would be to establish that these words were actually said at the instance he was caught with the phones, besides, it would be necessary to link the words to the crime that was committed. It should be necessary to test whether the statement is hearsay or admissible in this case. There is a need for relevant facts, and statements in a matter of communication and whether the communication made was related to this case （CPS，2015）. The statement of the man regarding his crime of making a living would need to be produced as evidence for it to be admissible in the court in relation to this case.

That ‘a man has to make a living these days’ can and should be considered as hearsay unless it is directly linked to the case. There would be a need to place these words in the context of the stolen property and show that David referred to the proceeds of his crime. Failure to do this will make these words to be mere hearsay. However, the statements can still be weighty for this case given that the statement made was heard first-hand and a colleague of PC Strange could add to hearing the same words. When suspects are apprehended, they are informed of the reason, their rights to remain silent, and the potentiality of any words spoken at that instance being used against them in a court of law. This turns apprehending officers into witnesses and they can give this testimony to the account that after the ‘stolen’ phones were recovered, the suspect muttered the words to suggest he was doing this to make a living. This is despite being illegal.

Sometimes when giving evidence, the victims may not recall all facts at once. This is especially true given that they may not have prepared for the events and therefore most of them would be forgotten later, depending on the elapsed time. In such as case, as the witnesses noted seeing a man of ‘shady looking character’, they should be allowed to recall as much as they can on events that took place, including people that were around. Such facts will be considered as the truth partially or wholly, as stated by Singh and Ramjohn  （2016）. Allowing the witnesses to refresh their memory will enable more facts to be presented and analysed to support the case. Glover （2015） noted that where the witnesses were aware and involved in the ensuing case, they are supposed to take an oath. This would not be possible; the witnesses will be allowed to recollect as much as possible all evidence that will be used to link David to the crime of theft.

Witness testimony

The sellers of the phones in the two shops should be willing to testify on how they got iPhones from David to sell to final customers for their testimony to be linked to the case of theft by David. Kat was willing although he developed a heart attack on the day of the trial. The two victims that had reported the loss of their iPhones could also be asked to state the circumstances when their phones were lost. Although David refused to confess at the police station during his interrogation, the two victims could state seeing a person of ‘shady appearance’ at the times the phones were lost. However, that needs to be linked to other evidence as being in the bar cannot amount to witnessing the theft of the phones. This is called circumstantial evidence which is weak if it is to be used on its own. The judge would need evidence beyond any reason of doubt that the presence of David in the bar was to steal iPhones and sell them to the two merchants. Though the presence of the victims is relevant and admissible, it has little probative value. The prosecutor would need direct evidence where evidence would need to be weighty, relevant, and have probative value. Though it cannot be used on its own, it is evidence that can be used to add value to the conclusion of the case as it is admissible.

Although the police will also produce evidence on their findings in the case, there is a need for the victims themselves and people to whom iPhones were sold to give their accounts. In R v Kearley, the police received phone calls in their investigation of drug dealings. However, this testimony could not admissible in court as the words did not involve the actual drug dealers and this meant the voice of police in the recordings could not be taken as a confession. It was considered hearsay and therefore inadmissible.

The main breakthrough, in this case, would be to connect the seller and buyer to establish the aim of their activity. That need to be proven but equally important is the need to find communication between the seller and buyer of the said iPhones. These similar issues were sought in the case of R v Twist. It may not be possible at this level to establish communication between David and the sellers of the phones that he allegedly stole at the bar. The evidence of the person that saw David exchanging money at the bar will be weak as the person who actually witnesses this is sick and there are no guarantees he will come out of it. The police cannot state that Pat saw David doing this as they did not see this themselves. Their evidence will therefore be inadmissible if given to the police themselves. The defence team will need to produce actual words that were said but the suspect also reserves a right to disallow them as the witness on the deathbed was not cross-examined. Using Pat’s testimony will therefore be unfair. That could bring the case to a crisis for the defence team. On the other hand, if Pat would be willing to testify, even if he is bedridden but can talk, his witness will not be considered as hearsay.

Kelly （2014） noted that the aim of hearsay is to prevent the jury from allowing secondhand information that hasn’t been cross-examined to be presented as evidence. Due to the condition in which he is, the court would be forced to allow the evidence to be admissible and used for the case. Tapper （2007） noted this and added that it will be used to a lesser or greater extent but the lack of opportunity to cross-examine a non-testifying third party makes it less convincing compared to others. The fact that it may be allowed or disallowed with the fact that Pat can’t be cross-examined makes this one of the most challenging decisions by the jury. The reason why the statement by Pat should be allowed is that the aim of presenting it would be to make it present what happened as opposed to the statement at trial. It is for this reason that Ho （2008） noted that it is generally relevant and it serves the purpose of protecting the court declarant and emphasise cross-examine testimonies to filter out those deemed to be weak or untrue. Klip （2005） concludes that those that are deemed to have probative value are to be used and in this case, seeing David exchange cash and an iPhone in a local bar is relevant in this case, hence the decision to use it.

The same person was placed at the scene of the crime. It will be too much of a coincidence that he is found whenever that crime was reported. Though looking ‘shady’ is not evidence in itself, the person that was placed at the scene of the crime in these cases, including one including undercover officer makes him the prime suspect. Probative value is one of the main criteria used in determining whether the evidence adduced is admissible or not, as was seen in the case of the International Criminal Court in the Lubanga case （Appazov，2016）.  To assess whether such evidence can be admissible in this case, it is necessary to look at the broader consideration by the laws of the UK on qualifications for such. In CPS （2010）, one of the articles for consideration of the probative value of the case stated should show:

“…the extent to which the evidence shows or tends to show that the same person was responsible each time where the evidence is evidence of a person’s misconduct and it is suggested that that person is also responsible for the misconduct charged and the identity of the person responsible for the misconduct charged is disputed…”.

In this case, stating David was seen in all these periods and therefore there are possibilities that he was probably involved could have information in relation to the case in question.

Conclusion

The essay discussed a hypothetical criminal case involving the loss of personal property. The goal was to assess several items of evidence, analysing their admissibility, and arrange them on how they might be presented in court. Evidence is needed to first prove that a crime was committed and objects and subjects involved are available. The goods that were recovered, oral testimony, and account of third-party witnesses were considered. Other issues discussed were assessed of the probative value of the evidence, and how hearsay statements are to be used as testimony in this case.

References

Appazov Artur, Expert Evidence and International Criminal Justice．New York，(Springer，2016)21．

CPSBad Character Evidence．[Online]2010．

Glover Richard, Murphy on Evidence, (Oxford University Press，2015) 234．

Ho H.L,. A Philosophy of Evidence Law: Justice in the Search for Truth．( OUP Oxford，2008) 43．

Kelly Alexis, Hearsay in Criminal Cases．[Online]2014．

Klip André , Annotated Leading Cases of International Criminal Tribunals: The．(Intersentia nv，2005)12．

Singh Charanjit and Ramjohn Mohamed, Unlocking Evidence, (Routledge，2016) 542．

Tapper Colin, Cross and Tapper on Evidence (Oxford University Press，2007) 1121．

List of cases

People v. Smith(1950) 98 Cal.App.2d 723, 730 [221 P.2d 140].)

R v Velumyl [1989] Crim LR 299

R v Kearley (1992) 2 AC 228

R v Twist and Others [2011] EWCA Crim 1143

People v. Smith(1950) 98 Cal.App.2d 723, 730 [221 P.2d 140].)

R v Velumyl [1989] Crim LR 299

R v Kearley (1992) 2 AC 228

R v Twist and Others [2011] EWCA Crim 1143