法律专业COURSEWORK ASSIGNMENT范文(2)

Assignment

 

Question 1

 

a. Who has the legal burden of proof in this case, and to what standard? Briefly explain therationale behind this arrangement. (5%)

Simply speaking, burden of proof is an obligation to prove. Person who alleging has this obligation. That is to say, person who alleges must prove, who must undertake the obligation of proving under specific condition. There are two principal burdens, the legal burden and the evidential burden. The legal burden of proof is also called burden of convince, which is the result that the party providing evidence to prove. Legal burden can convince fact finder, including the jury and the judge, to make favourable affirmation to the burden holder. Otherwise, if the fact that needs to be proved is in an unknown status, person who bears the burden of proof has to undertake the consequence of losing the lawsuit. 

In this case, the police who alleges Annie theft of “Noir” has the legal burden of proof. After police’s investigation, they found evidence against Annie, and brought these evidence to the court. Police has the obligation to persuade the jury or the Judge that Annie is guilty. Proof beyond reasonable doubt is a recognized standard in the criminal trail. For this purpose, policy provide evidence accordingly, including CCTV footage, “Noir” which has been recovered from Annie’s bag at home, “Noir”’s certificate, etc.. These proof can be thought as beyond reasonable doubt, as we don’t need proof beyond every shadow of every doubt. 

 

b. Comment on each piece of prosecution evidence with regard to (i) its classifications and (ii) admissibility. (15%)

All materials that are used to prove the case fact are evidences. With regard to the classification of evidence, it can be classified as oral evidence, documentary evidence, and real evidence. Oral evidence is also called testimony, which is evidence given by a witness on oath in open court by word of mouth. Documentary evidence consists of documents which are tendered in court as evidence,which including not only documents in writing, such as a deed or a letter, but also maps, plans, graphs, drawings, photographs, tapes, films, negatives, CDs, DVDs. Real evidence refers to physical things which are introduced as evidence in court, such as the murder weapon. 

Considering the admissibility of evidence, the way the evidence arise are the first issue need to concern. in criminal cases, evidence is usually relevance and admissibility; however, if evidence obtained by way of a process abusing, these evidence cannot be accepted by the court. Secondary facts also need to consider the problems of admissibility. The party who has submitted evidence has the evidential burden. In the process of prosecution, according to the lawsuit status, the parties should provide evidence to prove the facts they have alleged or facts which they are opposed. If the party cannot provide evidence to prove the facts they have alleged, the judge shall refuse to submit the facts to the jury for hearing or deliberating, and the other party shall have no contradictory obligation. The party seeking to produce the evidence has the evidential burden, the facts they have provided will affect the admissibility of the evidence. 

In this case, evidences against Annie is listed by the police. Among these evidence, oral evidence includes: 1) Evidence from Mrs X on her ownership of “Noir” and how “Noir” was lost on 24th December 2017; 2) Evidence from Sandy, Mr X’s secretary, on Mrs X’s usual style and pattern of extravagant spending, as well as how Annie always eyed Mrs X up and down with envy; 3) Evidence from Rich Company’s security guard who saw Annie leaving in an unusually rushed manner. Documentary evidence includes: 1) CCTV footage; 2) “Noir”’s certificate stating its value and date of sale to Mrs X. Real evidence is “Noir”, which is a physical thing and has been recovered from Annie’s bag at her home. Annie’s denfence is oral evidence, which needs secondary facts to test the admissibility. 

Evidence can be taken as the basis of reaching a conclusion through the test of admissibility.  For documentary evidence and real evidence, it should stress to review the following contents: 1) Whether documentary and physical evidence are original material or document, and whether they are identified or appraised; whether the picture, video, copy are accordance with the original material or copy. Whether they are made by two or more person. Are there documentary instruction and signature of the producer about the producing process and the storing place of the original material and copy;2) Whether the collecting process and methods of material and documentary evidence are accordance with laws and relevant regulations; Whether material and proof evidences that are abstracted and mortgaged through investigating, inspecting and searching are attached with relevant records, lists; Whether records and lists have signature of investigator and holders of materials; materials without signature shall be marked with reason; Whether name, feature, number, quality of articles are marked clearly;3) Whether material and documentary evidences are damaged or changed when they are collected, kept or appraised;4)Whether material and documentary evidences are correlated with case fact; Whether biology sample, traces and materials such as bloodstain, body fluid, hair and fingerprint have conducted DNA identification, fingerprint identification, and compared with corresponding biological feature and material of victim, etc.;5)Whether material and documentary evidence related with the cases are collected comprehensively.

 

c. Is classification relevant to the weight of evidence? If so, how and to what extent? If not, 

why? (5%)

Classification is relevant to the weight of evidence. Weight of evidence refers to the role the evidence plays in proving the facts of cases. All the evidences have an effect to prove the facts of cases. Generally speaking the different classification of evidence has different weight to prove the facts. For example, the weight of direct evidence is greater than the weight of indirect evidence. And the weight of oral evidence is less than the weight of documentary evidence (physical evidence). To distinguish oral evidence and documentary evidence, it should consider the contents and forms of evidence comprehensively. Whether the evidence can prove the facts and how it can prove the facts, on the one hand, it refers to the provisions of the law; on the other hand, it relies on the judge’s judgement. 

Under the system of legal evidence, the weight of evidence is regulated by legal regulations. Under the evidence system of free evaluation, the weight of evidence is decided by the judge according to free evaluation. In mainland China, the weight of evidence is confirmed by judicial official through individual review of evidence and mutual corroboration among evidences. 

In this case, Annie’s denfence is mainly oral evidence, the weight of oral evidence is relatively lower. Although Mrs X’s allegation and her secretary Sandy’s testimony are oral evidence, it can be corroborated by documentary evidence, such as CCTTV footage, “Noir”’s certificate. Documentary evidence is stronger than oral evidence in many situation. And the real evidence has the strongest weight, “Noir” was finally found from Annie’s bag at her home, the jury and the Judge are easily to believe Annie’s theft of “Noir”. 

 

d. Who has the evidential burden of proof of Annie’s defence? How can this burden be satisfied

with regard to each aspect of her defence? (15%)

Evidential burden is also called the burden of providing evidence. In the process of prosecution, the parties are obliged to provide evidences to prove the facts they alleged, or oppose the facts they disagreed with. If the party fails to provide evidence after bringing the facts to the court, the judge shall refuse to submit the facts to the jury for hearing and deliberating, and the other party has no obligation to defend themself. 

To defend herself, Annie claims that: 1) She mistook “Noir” for a random pebble. She had picked it up because she did not want anyone to trip on it; 2) She put it in her bag, intending to throw it away with other rubbish, but had forgotten after sherushed home to feed her baby granddaughter as her daughter and son-in-law were both suddenly summoned to work; 3) She states that she could not read the notice as she has cataracts in both eyes. Annie’s defence are all oral evidence, she has the obligation to adduce sufficient evidence on the facts she alleged. Annie claimed she mistook “Noir” for a random pebble, the reason she picked it up is because she wanted to do something good. This allegation may need to consider Annie’s daily performance, if Annie always works with chariness and responsibility, and is always ready to help others. This evidence is easily accepted by the jury and the judge. Annie claims that she put “Noir” in her bag and forgot to throw it because she rushed home to feed her baby granddaughter as her daughter and son-in-law were occupied by some unexpected things. To prove this defence, the working condition of Annie’s daughter and son-in-law must be proved. If they were indeed busy and were not able to look after their daughter that day, Annie’s defence might be real. At last, Annie claims that she cannot read notice as she has cataracts in both eyes. To prove this, specialist physician’s diagnosis is required. If Annie can adduce sufficient evidence on these facts to justify her claims, the jury and the judge may determine in favour of Annie.