Law of Evidence for Forensic Scientists - Essay Example

?Introduction Munday quotes Lieck in the first page of his book and identifies that truth is the main basis for justice, however, in the absence of truth, evidence must be given to show proof (2007). This shows that evidence lies at the root of court cases and in deciding matters that relate to the testimonies of various parties in the case. This paper examines whether it is justifiable to shift the burden of proof to the defendant or not. In this paper, we examine the role of the evidence in criminal proceedings. This will involve three main objectives: 1. Analysis of the burden of proof in relation to the plaintiff, prosecutor and defendant 2. Examination of court procedures and the standard of evidence that must be presented. 3. The suitability of the use of forensic science to be submitted as evidence in legal cases. 4. The role of current European Human Rights rules in the determination of the burden of proof. The paper draws into the various elements of English law and identifies the major components of criminal law and cases to prove the importance and essence of evidence in court cases. Hurst V Evans1 In this landmark case, the plaintiff was a jeweller. The defendant insured the plaintiff against loss and damage to his jewellery and property. In the insurance agreement, two notable exceptions were given by the defendant in the insurance contract: loss of jewellery to employees [or servants who worked in his premises] through dishonesty and breakage of antiques and chinas. The agreement made it clear that if any of these two incidents were to occur, the defendant would be free from any insurance payments. A robbery occurred at the plaintiff's premises and a safe was broken into and valuable jewels were stolen. The plaintiff had two employees, Mason and Brown. Mason had a group of friends who were members of a gang that was skilled in breaking into any safe. With knowledge of Mason's acquaintances, the defendant refused to pay the claims for insurance. They argued that Mason was a suspect and there was a big chance that he was involved in the robbery. The plaintiff argued against this position of the defendant. He stated that the burden of proof was on the defendant. This is because the defendant was alleging that Mason was part of the robbery and due to that, it was his responsibility to proof how he knew Mason was part of the theft. The defendant also argued that it is logical and obvious that Mason was involved in the robbery because his associates had insider information and could easily break into the plaintiff's premises and steal the jewels. They went far to turn in evidence of Mason's character of a deviant. The circumstances showed clearly that the defendant had a strong point because Mason was likely to have brought in third parties to steal from his employers. Thus, both parties had a good case. The argument was who had the onus probandi to determine the facts of the situation at hand. The judge held that it was impossible to place the onus on the defendant. This is because the defendant is not the one who brought the case to court. It is the defendant who has been accused. There is therefore the need for some kind of evidence to be presented to show that he was liable to prosecution. The judge rendered the evidence presented by the defendant inadmissible and stated that in a criminal proceeding, such evidence of the character of a party would lead to prejudice on the part of the judge. Thus, the plaintiff presented the contract for the insurance. The terms were read as the first form of evidence. The judge went through the case and identified the terms of the insurance contract and identified that there was a legal relationship between the defendant and the plaintiff. However, the plaintiff presented the contract for the insurance and indicated that the defendant was responsible to indemnify the loss. The judge insisted that the plaintiff showed evidence that the theft was of the nature that made the defendant liable to pay the insurance claims. In other words, the plaintiff had to turn in evidence that showed that the robbery was one that made it compulsory for the defendant to pay damages for the losses. Thus, he had to prove that the crime was free of his employee's involvement to give rise to an obligation for the insurer (defendant) to be liable to pay the claim. Hurst V Evans shows that defendants are normally exempt from the onus probandi at the initial stages of the case. This is because in most cases, the defendant is often accused by the plaintiff. Thus, the plaintiff must submit a form of evidence that must incriminate him or her. The Law of Evidence and the Burden of Proof In criminal law, there is a common law concept that indicates that the defendant is innocent until proven guilty (Zellick et al, 2008). In every case, there is the responsibility for each party to submit sufficient evidence of fact in deciding matter in favour of the prosecutor or defendant2. This means that there is the need to provide evidence to back every claim that is made in court. This is normally initiated by the prosecution. In Britain, members of the Crown Prosecution Service represent the state in putting together the facts and evidence against the defendant. This means that the defendant comes to court as an accused person. It is therefore the prosecutor's duty to gather facts and evidence that proves the defendant to be guilty in the courtroom. It is therefore the primary duty of the prosecutor to come up with evidence incriminating the defendant. The defendant does not have to initiate the evidence but wait for the prosecution to go ahead with claims and evidence that shows that s/he is guilty. There are two forms of burdens of proof in the court of law: 1. Legal burden and 2. Evidential burden Legal burden refers to the obligation to prove the fact in an issue or a matter (Keane, 2008). It is similar to an attack. In that the person who is making an assertion will have to back it with some form of evidence to show the judge that his submissions are true or credible. It occurs when an issue of fact is raised after a claim is made. Therefore, the party who is making the claim has the burden of proof. In criminal cases, the Prosecution has the legal burden of proof at the onset of the case. This is because the prosecutor has the responsibility to make claims based on the charges preferred against the accused person by the relevant authorities. Thus, based on the fact of the case, the legal burden of proof falls onto the prosecutor. This sets the state to prove that the defendant is not innocent and must receive the necessary punitive judgement. Once the prosecution fulfil the legal burden of proof and presents evidence that justify its claims, the burden of proof shifts to the defendant. This is known as the evidential burden of proof. The evidential burden of proof occurs when a party needs to show evidence that a particular claim made about them is false. It often occurs in a tactical matter where one party needs to come forward to point out an issue. In other words, when an allegation is made against a party in a case which is false, the allegee will have to make a conscious effort to prove that the allegation is false. Usually, in the criminal courtroom, it is the defendant who will have the onus in an evidential burden. The defendant will have to refute the allegations made by the prosecutor. Philipson identifies what he calls 'the risk of non-persuasion'. This refers to the situation where the defendant could be a victim of an adverse judgement if s/he fails to submit sufficient evidence to counter the claim of the prosecutor. It is therefore necessary for a defendant to present evidence that sufficiently and satisfactorily refute the claims and allegations made by the prosecutor in the case. This is the evidential burden of proof. It comes up when the defendant receives an accusation from the prosecutor which is not right and needs to be disproved. The Standard of Proof Lord Clyde stated that “If any error is to be made in weighing the scales of justice, it should be to the effect that the guilty go free than the innocent person should be wrongly convicted”3. This therefore means that the English legal system supports a position where the accused person is considered innocent until proven guilty. Therefore, the prosecutor has to prove beyond reasonable doubts that the accused person committed the crime at hand. In civil proceedings, it is the word of one party against the other. The judge therefore passes a judgment on the balance of probabilities. In criminal proceedings, the prosecutor has to do a number of things to prove a case beyond reasonable doubts. Criminal judgments are mainly punitive in nature. Thus, the prosecutor needs to prove the actus rea and the mens rea. This makes it sufficient for the judge to convict an accused person. Thus, the legal burden on the prosecutor to show evidence must be done to prove these two main elements of the accusation leveled against the defendant. The actus rea refers to the criminal action that affected the society. The prosecutor will have to show that the action was perpetrated by the accused person in the dock. This must be done to show that the accused person really carried out the act. Another aspect of proving a case beyond reasonable doubt is to show how the action benefited the accused person. This is the mens rea. It attempts to identify the criminal motive behind the act committed by the accused. The mens rea shows why the accused person committed the evil action and this consolidates the charges levelled against the person in question. Since the consequences of a criminal proceeding will normally affect the personality of the accused person and sometimes cause harsh circumstances like serving jail time, the prosecutor needs to go great lengths to prove the accusations. This means that the prosecutor needs to turn in credible evidence that shows that the accused person is indeed guilty. Admissible evidence must be relevant to the case at hand. It should be proven. In other words, it should be capable of being perceived by the five senses. It must be from a competent source that is admissible by the court. However, there is a question about whether the legal burden of proof could shift from the prosecutor to the defendants. In other words, is it possible for the prosecution to present evidence fresh evidence that changes the fundamental claims of the case? Can the defendant present evidence that puts the prosecutor in the dock? In a less formal language, can the accuser become the accused? Yes, I think the accuser can get to this kind of situation if there is overwhelming evidence that suggests that s/he committed the crime even before the case was brought to court. An example will be the case of a crime that was covered extensively by court. In such a case, the 'court of public opinion' tend to conclude the matter before the case is even brought to court for attention. In this wise, the legal burden turns out to be on the accused person. Forensic Science Forensic science involves the use of scientific and technical information to assist judges, juries, prosecutors and other key players in legal cases to provide evidence for their assertions (Houck & Siegel, 2010). Forensic science uses anthropological tools and techniques to present major conclusions that can be used to charge an accused person. Forensic science involves the use of anthropological tools to detect the presence of certain individuals at a particular scene of crime. It links up certain accused persons to the events that led up to the crime at hand. In the criminal justice system, forensic evidence is often put together to charge a suspect. It is often compiled by the police and they put it together to prefer charges against the individual in question. These forensic evidence are presented alongside the docket to the court of law. The prosecutors of build their case on the basis of the forensic evidence that they have about the case. However, forensic evidence is circumstantial in nature (Houck, 2003). It explains the circumstances within which the crime occurred. Just as Lieck identified, forensic evidence is not an absolute substitute for truth. Circumstantial evidence does not confirm that a suspect actually committed a crime. This is in contrast with direct evidence which shows clearly that the accused person committed the crime and must be punished. The European Human Rights Act In the OJ Simpson trial, 1994, a lot of evidence showed that the popular sports icon had murdered his ex-wife. Forensic evidence proved that he was guilty of the murder. This put the burden of proof on him. He however went on to prove his innocence and was acquitted because the evidence fell short of showing that he committed the crime. Although the OJ Simpson trial was an American issue, the case is one that seem to be applicable to the UK. This is because technological advancement in forensic science has made it a common thing for circumstantial evidence to abound in cases. However, there is a question of the extent to which a court can rely on such evidence in the UK. When the forensic evidence compiled by the police to build a case against a suspect points out clearly that the suspect is guilty, the suspect comes to court as guilt. In such a case, the legal burden of proof is on the accused person. In other words, the accused person is guilty until he is proven innocent. However, the traditional position of English law is that a person is innocent until proven guilty. This has been the premise for criminal proceedings in the UK for hundreds of years. However, forensic science can turn this maxim around. The European Union's Human Rights Act of 1998 added a new dimension to the concept of presumptions in UK courts of law. Article 6(2) of the European Convention on Human Rights states that anyone charged in a court of law for a criminal offence 'shall be presumed innocent until proven guilty according to the law'. This indicates that there is the need to maintain the concept of the presumption of innocence until the court has been able to prove beyond reasonable doubts that the individual at hand committed the crime in question. In Salabiaku V France4 the European Court of Human Rights made a landmark ruling on the procedural protection for suspects when the systems of Member States are different. In these rulings, the following pointers were upheld by the judge: 1. A person accused in a court for a criminal proceeding will be innocent until proven guilty. 2. There will be evidential requirements to convict an accused person. 3. Presumptions of facts by Member States need to be 'within reasonable limits' and the judgment should be 'based on importance of the case' and 'the rights of defence by Member States' These pointers give an interesting twist to the whole situation. First of all, the idea of 'reasonable limits' is not clearly defined. It borders within the confines of the extent to which the accused person's rights are protected and the need to ensure procedural correctness. In the Kebilene case5, the judge stated that “a fair balance must be struck between the demands of the general interest of the community and the protection of fundamental rights of the individual...”. This shows clearly that the essence of criminal prosecution, which is to protect the wider community from crimes and evil actions by unruly citizens is upheld. At the same time, the European Human Rights Acts demand that the rights of an individual who appears before a court of competent judicature is respected and enhanced. In cases like the OJ Simpson trial, it was apparent that the involvement of overwhelming circumstantial evidence shifted the legal burden of proof to the accused. In this case, what is the effect of the shift in the burden of proof on the presumption of innocence? This is a major issue that must be dealt with. This is because when all the evidence points out to the fact that a person has committed a crime and all the circumstantial and forensic evidence shows that the person is guilty, can the judge or jury be said to be independent? This is quite dicey because the jury had been informed that the accused person is guilty and as such, there is the tendency that they could be prejudiced. On the other hand, is it fair for a trial of such a magnitude to go the normal way, that is, should the prosecution have the sole burden of proof? Is it fair to the accused person? Is the accused person's rights respected duly if the burden of proof is placed solely on the prosecutor? In the case of OJ Simpson, assuming the whole case was left to the prosecution, they would have had overwhelming evidence and Simpson would have been prosecuted if the legal onus was placed solely on the prosecutors. This advocates for the fact that there is the need for some balance to be draw. The Concept of Proportionality In the Lambert6 case, it was held that there is the need for the court to examine the proportionality of the two shifts and its effects on the Community and on the Fundamental Human Rights of the accused person. The evidence that exist in the case must be matched against the facts of the case in relation to the two extremes to arrive at the proportionality of who should carry the burden of proof. The essence of the proportionality concept is that the interference of the evidence presented in the case must not affect the individual's human right to be presumed innocent in a trial. Thus, the proportionality concept ensures that the interference of a person's right to be presumed innocent must be justified. There are some statutes in the UK that prompt the use of the proportionality principle to enable the court to discharge its duty fairly. In other words, certain laws in the UK imply that the defendant comes up with evidence to explain why punitive punishments must not be taken against him/her. The nature of such statutes make it imperative for the legal burden of proof to be shifted to the accused person rather than the prosecutor. Some statues have been brought to court in the past and the concept of proportionality had to be invoked. Misuse of Drugs Act 1971 This law incriminates people for possession and usage of drugs. This therefore means that once a person is caught in possession of drugs, s/he is liable to a criminal conviction. Section 28(2) of the law says that: Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged. This means that the accused person who is found in possession of drugs, that person will have to come out and explain that the drugs was not meant to be used in a way that will incriminate him or her. In such a situation, it is apparent that the defendant has the legal burden of proof. He has to provide sufficient evidence that s/he was not aware of the drugs or intended to possess it legally. This fundamentally creates a tension between the individual's rights and the right of the state to defence from crime. This is because an individual found in possession of drugs is conclusively declared a criminal. In the trial, the best deal s/he can get is to prove that the drug was not meant to held or used illegally. This clearly goes against the fundamental human rights of the accused person. On the other hand, the issue of drug abuse is a major danger to the UK society. This means that there is the need for the government to come up with drastic action to prevent the abuse of drugs. It is therefore necessary for the court to use the proportionality concept to draw the balance between the rights of the accuse to a fair trial and the rights of the society to be protected. Prevention of Terrorism Act 1989 This Act is inserted in to the Criminal & Public Order Act of 1994. In the Kebilene case, the law was examined into detail. It showed that if a person has an article in his possessions and circumstances give rise to reasonable suspicion that the article supports terrorism, the possessor is guilty of a criminal offence. In this situation, the prosecution has the duty to create reasonable suspicion. In other words, the prosecution has to show that the individual who possessed the article intended to use it for terrorist activities. Thus the burden of proof shifts onto the defendant who needs to prove beyond reasonable doubts that the article was not meant to be used for terrorism. In this case, the responsibility of the prosecutor changes considerably. The actus rea is to show evidence that the accused person possessed the item in question. The mens rea is to show evidence that the accuser intended to use the article in a negative sense. This is the main means through which prosecution can create reasonable suspicion. Road Traffic Act 1988 Section 5 of the Act indicates that the prosecution has indicate that at the time of the alleged crime, the defendant had a significant volume of alcohol in his or her blood. In Sheldrake V DPP7, the principles of proportionality had to be used. The court identified that the burden of proof had shifted from the prosecution to the defendant. The court examined whether the shift in the burden of proof was proportionate or not. Elements of Proportionality & Evidence The concept of proportionality seeks to examine the changes in bearer of the legal burden of proof in relation to the human rights of the accused and the interest of the larger community. Proportionality is however difficult to be analysed if the knowledge of the accused must be proven. In R V Matthews8, the attempt to convict a person for murder on the basis of motive failed the proportionality test because the facts and evidence were not sufficient to conclusively present the accused person as the murderer. However, there are many crimes that occur in society which are difficult to prove because it involves intent. This include a decision on whether a sexual relationship between two parties was rape or consensual. In each of these situations, the evidence available and the facts should lead to the proportionality test to examine how the evidence must be submitted. The nature of the crime play a serious role in determining how proportional it is for either parties to bear the burden of proof. In a situation that is seriously affecting the nation like the drug menace, it might be justifiable for the court to place the burden of proof on the defendant. Also, the seriousness of a given offence affects the nature of the proportionality test and who owes a burden of proof. This enables the court to promote justice and fairness and ensure that the innocent is not wrongly convicted. Conclusion. Hurst V Evans lays the foundation for the need for the prosecutor or plaintiff to bear the legal burden of proof. In this sense, the defendant has an evidential burden of proof to present evidence contrary to the facts presented by the prosecution. In this wise, the defendant is innocent until proven guilty. Thus, the prosecution needs to prove beyond reasonable doubts that the defendant is guilty. The use of forensic science and the advancement in technology presents a new wave of circumstantial evidence. Some of this circumstantial evidence condemns an accused person even before a case begins. In such a situation, the legal burden of proof shifts to the defendant. Thus, the trial involves the defendant presenting evidence to the contrary. The defendant remains guilty until proven innocent. The introduction of the European Human Rights Act 1998 attempts to protect the fundamental rights of the individual to a fair trial. This seeks to take the defendant to the point where s/he is innocent until proven guilty. The Human Rights Act however states that Member Nations have the right to protect their social structures and as such, might stretch the limit in certain situations and disregard this right in certain critical situations. This leads to the concept of proportionality. Due to this conflict between communal rights and individual rights, there is the need for judges to test each case for proportionality to examine the effects of the burden of proof on a given individual. This is particularly the case in situations that have been known to cause extensive and serious damage to the society and are being regulated by tough laws. Notable examples in the UK today are drug trafficking, terrorism and road safety. Most of these problems are kept in check by tough laws which often place the burden of proof on the defendant. In this wise, the court will have to invoke the principle of proportionality on the facts and evidence presented in the case in order to pass the right decision. References Houck Max (2003). Trace Evidence Analysis: More Cases in mute Witnesses. Academic Press. Houck Max & Siegel Jay (2010) Fundamentals of Forensic Science. Academic Press Keane, Adrian (2008) The Modern Law of Evidence Oxford University Press Munday, Roderick (2007) Evidence Oxford University Press Philipson, D. (1999) Law of Evidence London, Clarendon. Zellick A. R, Sharpe Robert, Farbey Julliet & Simon Atrill (2008) The Law of Harbeas Corpus Oxford University Press. Read More