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9780199281138

Murphy on Evidence

by
  • ISBN13:

    9780199281138

  • ISBN10:

    0199281130

  • Edition: 9th
  • Format: Paperback
  • Copyright: 2006-05-11
  • 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.

Author Biography


Peter Murphy is a member of the bars of England, California, and Texas, and is Professor of Law, South Texas College of Law. He has taught and practised at the bar extensively both in England and the United States, and has served as counsel at the International Criminal Tribunal for the Former Yugoslavia. He is the editor-in-chief of Blackstone's Criminal Practice and the co-author of Evidence and Advocacy and Cases and Materials on Evidence.

Table of Contents

Preface to the Ninth Edition xix
Extract from Preface to the First Edition xxi
Table of Cases
xxii
Table of Statutes
xl
Table of Statutory Instruments
xlix
Introduction to the Law of Evidence
1(17)
What evidence is
1(1)
The nature of the judicial trial
2(1)
Philosophical basis for use of evidence
3(2)
Nature of judicial reasoning
5(2)
Development of rules of evidence
7(4)
Classification of rules of evidence
11(1)
Impact of the European Convention on Human Rights
12(6)
The Language of the Law of Evidence
18(16)
Inconsistency of terminology
18(1)
Basic terminology of the law of evidence
19(1)
Terminology of the qualities of evidence
19(3)
Terminology of the form of evidence
22(1)
Terminology of facts to be proved
23(1)
Facts in issue
24(1)
Facts forming part of the res gestae
25(2)
Facts relevant to facts in issue
27(4)
Standards of comparison
31(1)
Terminology of admissibility and weight
31(3)
The Judicial Function in the Law of Evidence
34(1)
A DIVISION OF FUNCTIONS
34(2)
Tribunals of law and fact
34(2)
B FUNCTIONS OF THE JUDGE IN LEGAL ISSUES CONCERNING EVIDENCE
36(7)
Admissibility
36(6)
Production and effect of evidence
42(1)
Withdrawing the case from the jury
42(1)
C FUNCTIONS OF THE JUDGE: JUDICIAL DISCRETION
43(9)
Inclusionary discretion
43(1)
Exclusionary discretion: civil cases
44(1)
Exclusionary discretion: criminal cases
45(4)
Application of s. 78
49(2)
Discretion confined to prosecution evidence
51(1)
D FUNCTIONS OF THE JUDGE: ADMISSIBILITY OF EVIDENCE ILLEGALLY OR UNFAIRLY OBTAINED
52(14)
General principles of admissibility
52(5)
Discretionary exclusion of evidence illegally or unfairly obtained at common law
57(3)
Exclusion of evidence illegally or unfairly obtained under s. 78
60(5)
Questions for discussion
65(1)
The Burden and Standard of Proof
66(1)
A THE BURDEN OF PROOF
66(30)
Introduction
66(2)
The legal or persuasive burden of proof
68(1)
The evidential burden
68(1)
The effect of presumptions on the burden of proof
69(2)
The legal burden of proof in civil cases
71(4)
The evidential burden in civil cases
75(1)
The burden of proof in criminal cases
76(1)
Defence burdens of proof before Lambert
77(4)
Defence burdens of proof after Lambert
81(14)
The burden of proof of secondary facts
95(1)
B THE STANDARD OF PROOF
96(21)
Introduction
96(1)
Criminal cases: standard of proof required of prosecution
97(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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