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Evidential Issues


This paper examines the evidential issues occurring in the provided case study. The objective is to advise both the prosecution and the defendant on the evidential issues arising from the case. The IRAC approach has been used to achieve the stated goal. This approach calls for the examination of the facts of the issues, identification of relevant rules, application of the laws and the conclusion. This is an important method in the analysis and subsequent reasoning of legal issues.1

  • Justin was assaulted. One of the injuries sustained was a fractured Skull

  • The Police searched Sam’s apartment but did not find any blood marks on his clothes

  • Sam and Lauren know each other, in fact, they are friends.

  • Lauren is a witness to the case; however, her testament is being treated as malicious by the accused.

  • Sam was interrogated in the Absence of a legal representative upon agreeing to respond no comment during the interview

  • During the police interview, Sam admitted that Justin deserved to be punched in the face.

  • Sam has a criminal record. He has been convicted twice for participating in a fight and theft.

Advice to the Prosecution on the Evidential Issues in the Case

  • The prosecution bears the burden of proof in regard to proving that Sam was responsible for inflicting bodily harm to Justin

  • The prosecution team has to determine admissibility of the evidence provided by the witness since it is likely to be marred by self-interest

  • The prosecution is tasked with the responsibility of demonstrating evidence of bad character concerning the accused.

Assault cases can be tried under either criminal or civil law2. The choice of law is dependent on who brings forth the charges. If the prosecution takes up the responsibility of charging the accused, then the case can be tried under the Criminal law. However, if the victim (Justin) files a case against the accused (Sam), then the case can be tried under civil laws.3

A ruling in the case R v. Lambert4 brings out the importance of the prosecution ensuring that the jury is aware of the relevant evidence that support the fact in issue. In this case, the House of Lords stated that the word of mouth is not enough to establish evidential burden. Rather, a relevant evidential matter can either be in form of something said to the police at the scene, defendant ,or any other party during an interview, on the witness box, or useful items or collected either at the scene or during an authorized search.5

Based on the ruling, if the prosecution is to bring up a case, they are obligated to present evidence to persuade the judge that Sam has a case to answer6. It is advisable that they discharge their evidential burden before triggering a legal burden7. This approach is recommended for two reasons. Firstly, it allows the judge or jury to hear out the issues arising from the evidence. Secondly, it prevents the court from wasting time and resources listening to unsubstantiated allegations.8 Once the prosecution has discharged the evidential burden, and the judged is convinced that there is a case to answer, they can proceed to discharge its legal burden and prove that the accused did commit the offense.

The offenses against the Person Act 1861 s.20 states that it is unlawful for anyone to wound or inflict grievous bodily harm to another person with or without the use of weapon9. Under this law, a wound is recognized as having an injury that is characterized by a break in the surface the skin, hence resulting in an open wound and loss of blood. The fractured skull and presence of blood are evidence that demonstrate that Justin suffered grievous bodily harm. This type of physical evidence can be presented to a judge or jury to illustrate the extent of the assault.

The accused may also serve as the only witness of the facts. This situation arises in the event whereby the accused himself is the only witness to a crime. This scenario is further documented in law under s.10 of the Evidence Act, which states that, if the accused is the only witness to the facts, then he/she can be called as a witness after the close of evidence by the prosecution.10 However, this scenario is complicated by the fact that the accused has the right not to reply to the prosecution’s questions if he is called upon to become a self-witness. This provision is embodied under s.11 of the Evidence Act, which states that the prosecution does not have the right of reply just because the accused has given evidence.

The Criminal Justice Act 2003 allows for the admissibility of bad character during a criminal case. These provisions can be used to help build a case since the accused has already been convicted twice, especially with respect to his first conviction. The admissibility of bad character is supported by s. 101(1) (b) and (c)11. These two subsections point out that a bad character can b admissible if the accused adduces so himself and if it constitutes an important explanatory evidence.

In addition, the issue regarding the quality of the evidence offered by the witness can be tackled under the Contempt of Court Act as well as the Perjury Act. If Lauren’s Testament is false, then it cannot be administered in a court of law, and she is likely to face perjury in the process. On the other hand, if her statements are true then the prosecution can offer to protect her identity of under the Contempt of Court Act.


Evidential Burden and Legal Burden

In order to build a strong case against Sam, it is critical that the prosecution can discharge its evidential burden convincingly. Also, it is should be able to meet it legal burden by adhering the required standards of proof advocated in criminal law. The ruling in R. Lamberts guides the prosecution on some of the elements that the court will consider in order to determine if Sam has a case to answer. The fact that the police did not find any blood-stained items during the search represents a minor setback in the case. Nonetheless, the House of Lords expanded to the meaning of relevant evidence to include information given to the police when at the scene or during an interview. In this case, Sam during the interview admitted that the victim deserved to hit. Although this information does not amount to an admission of guilt by the accused, it contains a probative value that can be used to demonstrate that the accused knows more than what he is willing to share with the police. At least, in his opinion, he supports the reasons or motives that led to the assault regardless of who was responsible. Also, his statements are incriminating since they create an impression that the accused was involved in the crime.

The Offenses to a Person Act strictly prohibits anyone from inflicting any bodily harm to another person whether using a weapon or not12. Sam can be charged under this Act since it is can be proven that the victim suffered grievous bodily harm because of the assault. Therefore, once the prosecution can prove that Sam assaulted Justin, they will provide evidence that demonstrates the severity of the case. The allegations that Lauren cannot witness against Sam since he is aware of her extra-marital affair represents is an example of intimidation of a witness. Such an action represents an offense against the administration of justice. Also, if indeed Lauren is bearing false witness against the accused the prosecution will be leading a witness to commit perjury. The perjury Act 1911 points out that it is unlawful for a person to provide false testament willfully13. The Act notes that perjury does not necessarily have to occur during a court proceeding. It can also be during at any event in the presence of an individual who has been bestowed with the power to listen and examine the evidence on oath14. Consequently, although the prosecution may protect the identity and evidence provided by the witness if the statements made by Lauren are false, then they will be contravening s.1(3) of the Perjury Act 1911. However, if investigations prove that Lauren’s statements are true, then the prosecution can apply for the protection of Under the Contempt of Court Act of 1981. Successful application of the provisions of this Act will see the witness’s identity protected as well as reasonable steps undertaken to ensure that they do not suffer any attacks or retribution for testifying against the accused15

The prosecution has enough material to discharge its evidential burden; however, more investigations need to be conducted in order to meet the standard of proof in a criminal case. Alternatively, the prosecution may advise the victim to instigate civil proceedings against the accused. However, the facts of the case are not sufficient to support a civil proceeding. Therefore, a criminal case can is the best strategy. Concerning Lauren’s Testament, it is upon the prosecution to gather more evidence that would nullify the allegations that her testament is malicious. If they are unable to provide more evidence that will prove the fact of the issue, then they are likely to be forced into a situation whereby the accused is the only witness to the crime. If this scenario suffices, then the prosecution will find it difficult to obtain responses from the accused because he is not obligated to reply.

Advice to the Accused Regarding the Evidential Issues

The accused claims that evidence against him by the witness is malicious

Sam claims that he is not an aggressive person, and he would not assault anybody

The accused has a criminal record. His first conviction was being involved in a fight.

The Criminal Justice Act 2002

The accused was once convicted of involvement in a fight when he was sixteen years ago. Although he was convicted of this crime, his record goes against his statement that he is not an aggressive person, and he would not assault anybody. In the case Geary v. Stevenson, the court ruled that that the evidence of good character can be admissible concerning the damages. It can also be admissible if the issue at hand involves an allegation of commission of a crime16. In addition, his previous acts may be admissible if has the potential to demonstrate probative value. For that reason, the past convictions can be used to establish motive, or absence of mistake, thereby incriminating the accused. The admissibility of the bad character evidence is stated under the Criminal Justice Act 2002. Sections 98 to 113 outlines the regulation regarding the admissibility of bad character evidence. Section 101(b) notes that if a defendant can allude to such evidence himself especially during an interview or cross-examination. On the other hand, the Act also provides the admissibility of bad character or non-defendant witnesses’. This situation is realized under Section 100 of the Criminal Justice Act 2003. If the witness fears that the intimidation by the accused can be used against her to prove bad character, then the issue can be accommodated if the accused and the witness agree to the admissibility of the evidence. In that case, the law provides the prosecution with a gateway to admit the witness’s evidence since it is in the interest of justice.


Section 98 of the Criminal Justice Act 2003 states that evidence of a person’s bad character can be employed if the evidence can be related to the alleged facts of the offence as will or if the evidence of misconduct can be used in connection with the current investigations.17 The fact that the accused was previously involved in fight produces evidence of misconduct that can be related to the assault charges. The prosecution can use the circumstantial evidence to prove that the accused is capable of committing assault. Additionally, the law considers misconduct as any action that leads to an offense or reprehensible behavior. For the purposes of the Act, the term offense is inclusive of a service offense. These definitions are meant to ensure that in a scenario of bad character evidence the prosecution is able to demonstrate that the defendant’s behavior is an indicator to of some level of culpability or blameworthiness in regards to the facts in issue. Therefore, the circumstantial evidence against the accused can be considered sufficient to meet the required standard of proof. Regarding the witnesses Testament, the fact that the search did not find any blood stained garment as alleged puts on more pressure on the prosecution to provide more evidence to back up the witness’s statement. The application of the provisions of s.101 (b) of the Criminal Justice Act may be comprised if the accused refuses to agree to the admissibility of the evidence of the presented in the witness.


The prosecution has a lot of circumstantial evidence against the accused. In order meet the standard of proof required under criminal law, they will need the testament of the both the victim. Also, they need to identify the motive of the attack especially seeing that the accused believes that the victim deserved to be punched in the face. Without substantial evidence, there is a good chance that the accused may not be successfully tried under criminal law. Moreover, the legal burden of proof lies with the prosecution. Therefore, the accused stands a chance to be acquitted if the investigations fail to bring forth reliable information or material evidence that proves that Sam assaulted the victim.

This paper has examined the evidential issues in Criminal Justice Law, Evidence Law and Offenses to A Person Act, Perjury Act, Contempt of Court Act of 1981. Both the prosecution and the accused have been advised according to these laws and court rulings. The application of the IRAC approach has promoted reasoning and proper analysis of different legal issues.


Boeschen, Coulter. «The Civil Injury Case Vs. Criminal Case After an Assault.» AllLaw.com. Accessed April 10, 2015. http://www.alllaw.com/articles/nolo/personal-injury/civil-case-criminal-case-after-assault.html.

Brodin, Mark S., and Michael Avery.(2015) Handbook of Massachusetts Evidence. Austin: Aspen Publishers/Wolters Kluwer.

Butler, Maura. Criminal Litigation. (2006) Oxford: Oxford University Press.

Criminal Justice Act 2003 s.101(1)(b)(c)(c)

Evidence Act s.10

Haralambous, Nicola, and Nicola Monaghan. (2014) Law of Evidence  23Cambridge University Press. Cambridge2014.

Hooper, Anthony, and D. C. Ormerod. Blackstone’s Criminal Practice 2013. (2012)Oxford: Oxford University Press.

Keane, Adrian. (2008)The Modern Law of Evidence. Oxford: Oxford University Press.

Miller, Roger LeRoy.(2013) Business Law Today: The Essentials: Diverse, Ethical, Online, and Global Environment. Mason, Ohio: Southwestern, 2013.

Offences against the Person Act 1861 s.20

Offenses against the Person Act s.20

Perjury Act 1911 s.1(3)

R. v. Lambert [1994] PNLR 134

Sheldrake v.DPP[2003] EWHC(Admin):ibid, at [52]

Trann, Jessica. «Assault and Battery — Victim Lawyers | LegalMatch Law Library.» Find a Lawyer | Find an Attorney — Present Your Case to LegalMatch. Last modified October 13, 2014. http://www.legalmatch.com/law-library/article/assault-and-battery—victim.html.

Welsh, Tom, Walter Greenwood, David Banks, and L. C. J. McNae.(2005) McNae’s Essential Law for Journalists. Oxford: Oxford University Press.

Roger Miller, Gaylord Jentz,  Business Law Today: The Essentials: Diverse, Ethical, Online, and Global Environment (Southwestern, 2013) 788

 Coulter Boeschen, «The Civil Injury Case Vs. Criminal Case After an Assault,» ( accessed April 10, 2015, “http://www.alllaw.com/articles/nolo/personal-injury/civil-case-criminal-case-after-assault.html”.) Para 1

Jessica Trann, «Assault and Battery — Victim Lawyers | Legal Match Law Library,»(Accessed 10th April 2015, “http://www.legalmatch.com/law-library/article/assault-and-battery—victim.html”) para1.

R. v. Lambert [1994] PNLR 134

Sheldrake v.DPP[2003] EWHC(Admin):ibid, at [52]

 Maura Butler, Criminal Litigation (Oxford: Oxford University Press, 2006), 66

Nicola Haralambous and Nicola Monaghan, Law of Evidence (Cambridge University Press, 2014), 62

Nicola Haralambous and Nicola Monaghan, Law of Evidence (Cambridge University Press, 2014), 62

The Offenses against the Person Act 1861 s.20

Evidence Act s.10

The Criminal Justice Act 2003 s.101(1)(b)(c)(c)

Offenses against the Person Act s.20

Anthony Hooper and D. C. Ormerod, Blackstone’s Criminal Practice 2013(Oxford University Press, 2012), 19

The Perjury Act 1911 s.1(3)

 Tom Welsh et al., McNae’s Essential Law for Journalists (Oxford University Press, 2005), 19

16 Mark S. Brodin and Michael Avery, Handbook of Massachusetts Evidence(Austin: Aspen Publishers,2015), 151.

Adrian Keane, TheModern Law of Evidence (Oxford University Press, 2008), 472.

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