CFFE Module II
Principles of Law of Evidence and the Trial Process flashcards
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What is the difference between information and evidence, and how does an investigator turn one into the other?
Information becomes evidence only once it is gathered, preserved and presented in a manner the rules of evidence recognise. A true tip or internal audit report can still be inadmissible. To convert it: identify who can testify to the fact firsthand, preserve the document in its original or a properly authenticated secondary form, and make sure no exclusionary rule such as hearsay bars it.
What is the three-part test a court applies to evidence, and in what order?
Relevance: a logical connection to a fact in issue. Reliability: the evidence is trustworthy and accurately reflects what it purports to show. Admissibility: it satisfies the legal rules, including any exclusionary rule such as hearsay or evidence obtained in breach of a constitutional right. Relevant, reliable evidence can still be inadmissible for a specific legal reason.
Who bears the burden of proof in a criminal trial, and to what standard?
The prosecution, throughout the trial. The accused need prove nothing and may remain silent without that silence being treated as evidence of guilt. The standard is proof beyond reasonable doubt, applied to every element of the offence. A reasonable doubt on any one element entitles the accused to an acquittal on that charge.
Which two elements do most fraud offences require?
Actus reus: the prohibited act or omission. Mens rea: the guilty state of mind, the intention, knowledge or recklessness the offence requires. Where either is missing no offence is committed, however damaging the outcome, which is why defences so often turn on disproving mens rea.
What is the legal basis for plea agreements in Kenya, and what must a court do before accepting one?
Sections 137A to 137O of the Criminal Procedure Code, with detailed procedure in the Criminal Procedure (Plea Bargaining) Rules, 2018. Either side may start the negotiation; the agreement needs written approval on behalf of the Republic and must be recorded by the court. Before accepting it the court must satisfy itself of the accused's competence to make the agreement and record the factual basis for the plea.
What is the Giella v Cassman Brown test for an interlocutory injunction?
1. A prima facie case with a probability of success. 2. Irreparable injury not adequately compensable in damages if the injunction is refused. 3. If the court is in doubt on the first two, the balance of convenience. It is the test every Kenyan freezing or search order application is still argued against.
When does section 48 of the Evidence Act allow opinion evidence?
Where the court must form an opinion on a point of foreign law, science or art, or on the identity or genuineness of handwriting or a finger or other impression. It is admissible only from a person specially skilled in that field, so an expert must be qualified by the court before any opinion is heard.
What are the three stages of questioning a witness, and in which are leading questions allowed?
Examination in chief: by the party who called the witness, open questions only. Cross examination: by the opposing party, leading questions permitted, to test reliability, methodology, assumptions and independence. Re examination: by the calling party again, no leading questions, limited to matters raised in cross examination. The order never changes.
What is fidelity insurance, and why is it often the fastest route to recovering a fraud loss?
A fidelity guarantee or crime policy that indemnifies an organisation against loss caused by the dishonest or fraudulent acts of its own employees. The victim claims on its own policy, subject to its terms, limits and any excess, instead of pursuing the perpetrator, so payment comes far faster than litigation, arbitration or mediation. It is not a dispute resolution process at all.
What is hearsay, and where does Kenya's hearsay rule come from?
An out-of-court statement offered to prove the truth of what it asserts. Section 63 of the Evidence Act requires oral evidence in all cases to be direct: the witness must have seen, heard or perceived the fact themselves. Hearsay is generally inadmissible because the original speaker cannot be cross-examined, subject to recognised exceptions.
What is evidence, and through which two channels does it reach a court under the Evidence Act?
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How does admissibility differ from weight?
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How does direct evidence differ from circumstantial evidence?
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Distinguish testimonial, real and demonstrative evidence.
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What is the difference between inculpatory and exculpatory evidence, and what must an examiner do with the latter?
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Why is character evidence generally restricted?
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Give three recognised exceptions to the rule against hearsay.
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Who bears the burden of proof in a civil case, and to what standard?
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What did Woolmington v DPP [1935] AC 462 establish?
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What does a statutory reverse-onus provision do?
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What is a presumption of law?
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Which standard of proof applies to ACECA's unexplained-assets forfeiture, and where does the burden lie?
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How does the purpose of criminal law differ from that of civil law?
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Who are the parties in a Kenyan criminal trial, and who decides the verdict?
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Name four of the accused's fair trial rights under article 50 of the Constitution, and the risk of breaching them.
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What must a charge contain, and what is the charging document called?
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Distinguish joinder of counts from joinder of persons.
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When is a charge defective, and what usually happens to it?
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What safeguards protect the accused when a charge is amended?
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How does discovery differ between the adversarial and inquisitorial models?
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What must the prosecution disclose before trial, and what happens if it fails to?
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Name the three privileges and protections against compelled disclosure, and what each protects.
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How does entrapment differ from a state operation that merely provides an opportunity to offend?
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What does a court weigh at sentencing for fraud, and what orders are often combined?
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On what grounds can a criminal conviction or sentence be appealed, and what does an appeal not do?
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When can a corporation be criminally liable for an offence?
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What is a deferred prosecution agreement, and what is its legal basis in Kenya?
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What is a civil wrong, and how does it relate to a criminal offence over the same conduct?
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Which laws govern civil procedure in Kenya, and how is a claim started and answered?
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What must a claimant show for a Mareva (freezing) injunction beyond the Giella test?
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Which two urgent orders does a fraud claimant typically seek, and why?
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Why is civil discovery so useful to a fraud claimant?
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What are the four civil remedies for fraud, and what does each do?
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On what grounds may a civil judgment be appealed?
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To whom does an expert witness owe their duty, and which case sets out the standard statement of those duties?
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What characteristics and skills are expected of an effective expert witness?
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What is the limit on re examination, and why does it exist?
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What are the main advantage and the main limitation of mediation for recovering fraud losses?
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When is arbitration available to recover a fraud loss, and what does it offer?
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What is subrogation in a fidelity insurance claim?
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