General advice on taking examinations in evidence

General advice on taking examinations in evidence

The following general advice relates to examinations in evidence - whatever their precise format - containing problem-type and essay-type questions.

Revision

There is no single correct way to revise: different individuals have different techniques, but most involve summarising your notes to get a clear view of the ‘bigger picture’, as well as the detail.

The overall aim of revision is to ensure that, before the exam, you have:

  1. knowledge and comprehension of all the main principles of law, including those derived from the leading cases;
  2. the ability to apply those principles to facts;
  3. an awareness of the policies underlying the principles;
  4. the ability to critically analyse the law and, as appropriate, make out a case for reform, drawing upon the views to be found in the relevant literature; and
  5. the ability to convey your knowledge, comprehension, application and analysis clearly, concisely, precisely and grammatically.

A revision technique often used to good effect is, once you have finished reading your notes etc on a particular topic, to explain it to an imaginary person in the room, describing the law, its justification and, if in your opinion it is in need of reform, your reasons for that opinion. With this technique, you will quickly discover the areas that you need to work on. Once you have ‘plugged the gaps’, you will approach the exam with the confidence that you need to perform to the best of your ability.

Nerves

Thorough revision will usually provide most people with the confidence that they need to perform to the best of their ability. Your mindset should be that you are equipped for the assessment  and will enjoy it. If, however, nervousness remains a problem on the day, deep breaths are a reliable way of physically calming down. It is particularly important to stay as calm as you can at the start of the exam, which is the stage when you should be identifying accurately what the questions are designed to test.

The Start of the Exam

Read the questions as slowly as necessary to ensure that you identify correctly the issues. It is better to spend more time doing this well, and then writing up a good answer briefly, rather than doing it in a rush, badly, which is likely to result in a longer but weaker or even incorrect answer. The ideal is to have note-form or skeleton answers that identify all the relevant issues and materials and which can then be used as the basis for full written answers.

Always attempt to answer all the questions that you are required to answer. Answering only some of the questions, because they are the questions about which you feel confident, is most unlikely to lead to an overall mark that is higher than if you answer all required questions, even if they include questions about which you do not feel confident.

Timing

Once you are in a position to start the full written answers, divide the remaining time equally by the number of questions required to be answered. Do not spend more time on some questions than others. Resist any temptation to spend more time on the questions about which you feel confident at the expense of those about which you do not feel so confident.

If your schedule slips, and you start running out of time in relation to any question, use a note-form approach: you will then doubtless lose marks for poor grammar and presentation, but you will lose less than if you just run out of time.

Problem-type questions

These questions are testing your ability to analyse facts, identify the relevant law and then apply the law correctly to the facts. You need to be sure, therefore, before writing up your full answer, that you have correctly analysed the problem and the issues to which it gives rise. You should not just set out the law that you think applies and stop there: you should apply the law and reach a conclusion. Very often the question will not contain all the facts that could have a bearing on the law that applies and the conclusion to be reached. If so, set out the further information that you need and explain how and why your answer would change in the light of such information.

If, despite your best efforts, you are at a complete loss as to what the relevant law might be, try to work from basic principles or even your own view based on common sense – it is better to make a rational stab at an answer than not to answer at all.

Questions about admissibility

Problem-type questions often contain a set of facts and then ask you to advise on the admissibility of various different items of evidence. For each item of evidence, you should always begin by addressing the issue of relevance. If you conclude that it is relevant, you should explain to what it is relevant (one of the facts in issue or the credibility of a witness) and why it is relevant. If the evidence is relevant, the next question is whether it is admissible in law or whether it falls to be excluded by some evidential rule, for example the rule against hearsay or the rule against previous consistent statements. On the question of admissibility in law, explain your conclusion by reference to the law and facts. If you conclude that the item of evidence is both relevant and admissible in law, you need to consider, finally, whether it should nonetheless be excluded by the court in exercise of its discretionary powers. In the case of prosecution evidence, you should justify your conclusion by reference to s 78, Police and Criminal Evidence Act (or the common law) and the case law to which it has given rise.

If the question asks you to ‘advise’ on the evidential issues, you will need to deal not only with the questions of relevance, admissibility and discretionary exclusion, but also the question of the weight of the evidence and any special direction that the judge may have to give relating to the evidence, for example a Lucas direction (R v Lucas [1981] QB 720, CA) in relation to evidence of lies or a Turnbull direction (R v Turnbull [1977] QB 224, CA) in relation to evidence of visual identification said to be mistaken.

Essay-type questions

These questions are testing your ability to describe and discuss legal principles critically, ie having regard to their rationale, how well they operate, and the scope for reform. You need to be sure, therefore, before writing up your full answer, that you have correctly analysed precisely what it is that you are being asked to describe and discuss critically. You must address that, rather than simply setting out everything that you know or can remember about the legal principles in question. Almost always, what is sought is not just a description of the law, but a critical analysis, ie a reasoned argument about how and why the law is in need of reform and what reforms would solve the problems identified. You will want to cite the views of authors of learned articles, but you should also be prepared to set out your own reasoned conclusions