ENGLISH LEGAL TERMINOLOGY：英语法律术语.pptVIP

WITHOUT PREJUDICE Negotiations for settlement of an action are made without prejudice and therefore privileged Normally includes ‘without prejudice’ on documentation but does not have to, test is whether it is part of negotiation. Even if marked without prejudice and correspondence not part of settlement then statement of no use. Inculpate: [verb] to incriminate Inculpatory Evidence: Evidence that would tend to incriminate the accused. Exculpate: [verb] to exonerate, vindicate, redeem Evidentiary Tendency Exculpatory Evidence: Evidence that would tend to exonerate the accused. LEGAL BURDEN Those who allege must prove Statute may set out who has to prove what. Some acts shift onus of proof. Wording of contract would be important. In negative assertions those who allege still must prove. LEGAL BURDEN Policy decisions may be made in difficult cases - onus placed on person who would find it less difficult to prove. Must prove on balance of probabilities, the evidence must show that the fact was more probable than not (Miller v. Minister of Pensions) ADMIT/EXCLUDE FORMULA EVIDENTIARY ISSUES ARISE WHEN ONE SIDE WANTS TO ADMIT THE EVIDENCE AND THE OTHER WANTS TO EXCLUDE IT HOW THE LAWYER PREPARE ON CONTESTED ISSUES OFTEN DEPENDS UPON THE ANSWER TO 3 KEY QUESTIONS INITIAL QUESTIONS What is the Evidence being offered to prove? Who is offering it? What form is it in? AFTER ANSWERING 3 KEY QUESTIONS AFTER ANSWERING 3 KEY QUESTIONS – LAWYER MUST DO THE BARPH TEST THAT’S RIGHT – WHEN YOU THINK EVIDENCE – THINK BARPH When you think evidence, think BARPH Best Evidence – Authentication – Relevance* – Privilege – State law Hearsay – *encompasses rules which may exclude relevant evidence for policy reasons BURDEN OF PROOF Which party has to prove what? Legal burden requirement to prove a fact in issue Evidential burden the requirement to obtain sufficient evidence to justify a favourable finding of a fact in issue LEGAL BURDEN Those who allege must prove Statute may set