The conviction today for murder of Vincent Tabak has raised the question of what sort of evidence should, and should not, be put to a jury.
My own view, and this is entirely subjective, is that if one is to have juries, one should trust them, or not have them at all.
If the evidence is relevant then it should be admitted to the jury.
Anything less is both somewhat artificial (and it then does not seem clear what the jury's function is, if it not to bring their worldliness to bear) and prone to disruption (especially in days of internet searches).
However, it may not be clear to non-lawyers what the basic rules of evidence are in criminal trials.
(Evidence is something which tends to show whether a fact is correct or not, and it can consist of witness evidence (either in writing or orally), exhibits, and expert evidence.)
In very general terms, there are three tests for criminal evidence:
1. Is the evidence relevant? In other words, does it go to either establishing or not establishing a fact which needs to be proved for the offence to be committed or a defence to be available. If the evidence is not relevant then it cannot and should not be used.
2. If the evidence is relevant to establishing or not establishing a relevant fact then the question is whether it is admissible. Here the starting point is whether the effect of the evidence is more prejudicial than probative. In jury trials (at the Crown Court), the criminal courts take a rather paternalistic view of what a jury would find prejudicial.
3. If the evidence is both relevant and admissible, then the question is what weight should be placed on that evidence. And with a jury one should never know, as the deliberations are secret. Judges in judge-only trials, on the other hand, will usually state openly why they prefer some evidence over other evidence.
The effect of this is that criminal trials are sometimes more a contest of what evidence is put before a jury rather than an exercise in assessing evidence.
Once a defendant knows what evidence will be before a jury, they may well plea guilty or not guilty accordingly.
A good defence lawyer will do their best with the evidence in court, but the masters are those who manage to get the evidence excluded in the first place, either on the basis of relevance or admissibility.
So in terms of evidence, as well as in terms of procedure, justice can be either carried or miscarried on essentially technical points, rather than on the overall facts of the matter or the black-and-white substantive law.
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