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defences consessions and adverse inferences from silence

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defences consessions and adverse inferences from silence

Postby megaman » Thu Feb 08, 2018 11:41 am

If a person needs to rely on a defense and he is not the sort of person who is able to take the stand and talk freely and effectively in front of the court does he have much of a problem.
is there any significant risk that a magistrates court will discard his claimed defense if he does not take the stand?

I have comes across case law which suggests that pre-written statements which are wholly exculpatory are inadmissable. if this is the case how is a person supposed to claim a defense or a lack of appropriate mens reas in a case where the actus rea has been proven?

I have also seen CPS guidelines which state that if a person has made a false confession he has to take the stand to explain why.
But if he has already made a false confession which was not caused by external coercion (a so called voluntary confession) there is a risk he will involuntarily do it again if he tries to take the stand.
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Re: defences consessions and adverse inferences from silence

Postby dls » Sun Feb 11, 2018 7:02 am

There are a whole mix of questions in this.
Some defences are simpy arguments of law - that the prosecution evidence does not include each element reuired to constitute the offence, for example. Such a matter is made perfectly adequateley without the defendant taking the stand. He is not giving evidence, but arguing the law.
Wholely exculpatory statements 'I did not do it' are unusual, and would carry no real weight anyway. His not guilty plea has exactly the same or better effect.
A defendant's unwillingness to allow the prosecution to test an assertion of the absence of mens rea would go a long long way to inviting the court to disregard it. Hwever in many cases, teh test for admission of sch an assertion is not very heavy, and a defendant is not proving it as such, but doing enough to raise it as an issue, transferring the burden of proof of presence of mens rea to the prosecution as an essential element. This applies also for exmple in raising the issue of self defence.

You must have misread the CPS guidelines. A defendant does not have to take the stand. He cannot however successfully make that sort of assertion you refer to without providing evidence. That would usually be his own evidnce, but circumstancs might occur where, or example, another witness, possibly an expert,might support an assertion that a defendant was very suggestible.
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