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The Chinese University of Hong Kong Faculty of Law Evidence Term 2 - 2012 Teachers: Dr Arthur McInnis, Mr Andrew Raffell Telephones: 3943-1274, and 3943-1679. Emails:amcinnis@cuhk.edu.hk; andrew.raffell@cuhk.edu.hk Offices: 612 and 524 Lee Shau Kee Building Office Contact Hours: At any time during office hours by prior email appointment. Name of Course Convenor: Dr Arthur McInnis Name of JD Programme Leader: Professor Stephen Hall

Information about Classes Classes will be scheduled in Term 2 as per your timetable. There will no participation or attendance mark but students are strongly encouraged to attend all classes and any guest lectures that might be recommended outside of classes. As a general observation I find that the better the students attendance the greater their enjoyment of the course and better they typically do. With regard to preparation all students are expected to review the slides and the assigned chapter readings before each class. Prerequisites Nil. Materials The course follows the fairly recently published Hong Kong Law of Evidence by the Founding Dean Mike McConville and Dmitri MA Hubbard (Blue Dragon, Hong Kong, August 2009). It is recommended that you purchase this text. I am trying to make arrangements for the publisher to attend and sell the text at the Faculty. A set of PowerPoint slides will also be put on Moodle. Additional reading and research will be suggested from time to time, and references to relevant textbooks, articles and statutory material will be provided within the course material, in lectures and at times in links on Moodle. Aims This course will examine and review the rules of evidence within a broad social context and focus upon problems/case studies to exemplify particular issues. It will examine the fundamental principles governing adducing of evidence within the adversarial framework of the common law. In the course, you will gain a critical appreciation of the burden of proof in criminal and civil cases, the rules governing the admissibility of evidence, the roles of the judge and the parties,
2012. This material is confidential and not to be disclosed to third parties without prior permission. The material is also the copyright of The Chinese University of Hong Kong.

2 and the course of the trial. You will be able to place the rules of evidence within their wider historical, social, and psychological contexts. The course will help you enhance your skills in case analysis, problem-solving, and ideally legal research if you are doing some homework and legal writing if you are attempting the review problems as we go along. Once again all students should be prepared for class to benefit the most from it. In this course we will y Examine the fundamental principles governing the adducing of evidence within the adversarial framework of the common law Consider specific rules of evidence, both common law and statutory, which govern how facts may be proved/disproved in mainly criminal but also civil trials Consider the benefits and shortcomings of the way in which the current rules operate and how they may be improved Apply the rules of evidence to practical factual scenarios

Learning Outcomes By the end of this course, you will y Understand the role of the judge and the jury in relation to the admissibility/assessment of evidence Be able to ascertain who bears the burden of proof in respect of any given case or issue in a case, and explain to what standard facts must be proved in various civil and criminal contexts Understand how rules governing the admissibility of evidence work in practice Be able to place the rules of evidence within their wider historical, social and psychological context Solve problem questions which require research into, understanding and application of the main rules of evidence governing proof of facts in criminal and civil trials Write coherent answers to problem questions in a systematic and persuasive manner

y y

2012. This material is confidential and not to be disclosed to third parties without prior permission. The material is also the copyright of The Chinese University of Hong Kong.

3 Philosophy on Teaching and Learning We will adopt a contextual approach that places the study of the rules of evidence in their historical context and critically examines their relevance and operation within contemporary society. Teaching will be both lecture style as well as interactive and heavily example-based. Assessment Assessment for this Course is constituted solely by a 100% three hour open-book final examination. The exam will be prepared together by Andrew and myself though we will mark our streams or students papers. We will each review a sample of the others papers to ensure they have been marked fairly and consistently. General In this course we will explore the following areas of the law of evidence 1. The Law of Evidence 1. Introduction to the law of evidence including relevancy, collateral issues, and the varieties of evidence and the divisions of functions between judge and jury with mention of the distinction between law and fact; the voir dire; sufficiency of evidence, judicial discretion and summing up. a. b. c. d. e. The jury Inquisitorial versus adversarial trials The nature and types of evidence Relevance, remoteness and admissibility of evidence Proof without evidence

2. The burden of proof a. b. c. d. e. The legal burdens The evidential burden Burden of proof in criminal cases Legal burdens on the accused and human rights Evidential burden in criminal cases

3. The standard of proof a. b. c. d. e. Standard of proof: criminal cases Civil cases: allocation of burden Civil cases: balance of probabilities Silence of the accused in criminal cases Burden of proof on admissibility of evidence in criminal cases

2012. This material is confidential and not to be disclosed to third parties without prior permission. The material is also the copyright of The Chinese University of Hong Kong.

4 4. Proof without evidence a. Presumptions b. Judicial notice c. Formal admissions 5. Admissions and Confessions a. b. c. d. e. f. g. Definition Historical development overview Oppression Voluntariness Unreliability Implication of co-accused Facts discovered in consequence of inadmissible confession: derivative evidence

6. Evidence unfairly or illegally obtained a. b. c. d. The common law Statute Human Rights The importance of judicial discretion

7. Witnesses competence and compellability a. b. c. d. The accused The shield Spouses Children

8. Similar fact evidence a. The common law and the evolving test of admissibility b. Statutory intervention 9. Identification evidence 10. Hearsay I the rule of exclusion a. b. c. d. Definition The rule Rationale Application original evidence, implied assertions, non-existence of facts, statements produced by computers etc.

11. Hearsay II exceptions at common law


2012. This material is confidential and not to be disclosed to third parties without prior permission. The material is also the copyright of The Chinese University of Hong Kong.

5 a. b. c. d. e. f. Confessions Public documents Works of reference Deceased persons Res gestae Former proceedings

12. Hearsay III statutory exceptions a. Criminal b. Civil 13. Evidence of Opinion a. Relevance and scope b. Restrictions, special controls re disclosure c. Areas of concern. 14. Disclosure, Public Interest Immunity and Privilege a. b. c. d. Disclosure principles The privilege against self-incrimination Legal professional privilege Public policy and public interest immunity trial and pre-trial rules

Overall Timetable

The Week 1 2

The Topics - Introduction - The Burden of Proof - Reverse burdens

Readings* - Chapter 1 - Chapter 2

Powerpoints - Introduction to Evidence - The Burden of Proof and Evidence Adduction - The Standard of Proof - Proof without Evidence

3 4

- The Standard of Proof - Chapter 2 - Presumptions - Judicial Notice - Formal Admissions - Admissions and Confessions - Evidence Unfairly or Illegally Obtained - Chapter 3

- Chapter 4

-Admissions and Confessions

- Chapter 5

- Evidence Unfairly or Illegally Obtained

2012. This material is confidential and not to be disclosed to third parties without prior permission. The material is also the copyright of The Chinese University of Hong Kong.

8 9

- Witnesses competence - Compellability - Spouses - Children, Vulnerable witnesses - Similar Fact Evidence - Identification Evidence - Hearsay Evidence - Opinion Evidence - Disclosure, Public Interest Immunity and Privilege Review Session

- Chapters 6, 8

- Witnesses: Competence and Compellability

- Chapter 7 - Chapter 9

- Similar Fact Evidence - Identification Evidence - The Rule Against Hearsay - Opinion Evidence - Disclosure, Public Interest Immunity and Privilege

10 11 12

- Chapter 10 - Chapter 11 - Chapter 14

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- All Chapters

Evaluation of Teaching Students will be invited to complete an evaluation of teaching towards the end of the course. Questions and Concerns Please contact the course leader during office hours if you have any concerns or questions about the course. If your concerns continue, please see the Programme Co-ordinator.

Arthur McInnis January 2012 ********

2012. This material is confidential and not to be disclosed to third parties without prior permission. The material is also the copyright of The Chinese University of Hong Kong.