Challenges in Convicting Mino for Mony's Murder

The prosecution faces challenges in convicting Mino for the murder of Mony due to lack of key witnesses and reliance on hearsay evidence. The admissibility of the murder weapon and photographic evidence is also questioned.

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Question 1
The prosecution is faced with a big challenge in trying to get Mino convicted for the murder of
Mony. This is due to the fact that the prosecution is unable to produce in court a key witness who
may have overheard the planning and execution of the murder. The lack of Doc physically in
court has dented the prosecution case in the sense that the court will not be able to get his first
hand information on what he saw on that particular day, what he heard and in fact what he might
have mentioned to the police1.
Therefore it follows that the prosecution in advancing its case will try to bring in Docs wife as a
witness to the case. Her sole mission will be to inform the court of what Doc had told her
concerning the murder before he left. This is basically hearsay and thus the prosecution will be
trying to get a conviction in court based on this.
Hearsay according to chapter 3.2 of the Evidence Act of 1995 can be defined as a statement that
was made outside of the court premises and is intended to try and prove the truth about the
matter that is before court. In most cases hearsay evidence is normally inadmissible but section
60 of the Evidence Act provide for instances whereby an exception to the rule may apply. It is
important to note that hearsay does not really omit the issue of evidence2.
Hearsay evidence has the risk that the evidence being submitted may not be reliable. The judge
might find it difficult to admit the same as part of evidence simply by being informed that
1 Baker, K.K., 2017. In Nussbaum and Law (pp. 205-224). Routledge.
2 Boister, N., 2018. Oxford University Press.

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someone said this regarding the matter in court. However, the rule of exception to hearsay is
informed by the reliability of the evidence being submitted3. A Judge is by law allowed to
practice discretion if by any chance he feels that the hearsay evidence is somehow reliable and
critical to the matter at hand. This can only be possible if there is documentation provided in
court about what the person who cannot testify stated in relation to the case at hand.( Farahany,
2016)
Thus in the first instance, Doc is not present in court and thus cannot testify and be cross
examined. According to the prosecution, Docs wife is to inform the court what he told her on the
use of the gun. The case of R vs Suteski 2002 provided that the maker of the statement must
appear in court to confirm on the statement made..The evidence is not reliable and thus the Judge
may rule that the evidence being given is inadmissible.
For the second part, the prosecution will produce in court Docs diary. The diary contains an entry
made on the 16th of March which was a day before the alleged crime. This form of evidence is
still hearsay as the person who recorded it is not in court to confirm if what he indeed wrote was
true4. However, there is some documentation in court upon which the prosecution will try and
rely as proof that Mino actually committed the crime. Section 70 of the Evidence Act Division 3
provides for exceptions to hearsay by use of content writings. This is where the exception of
hearsay evidence comes into play. The Judge in his consideration and in his exercise of the
3 Farahany, N.A., 2016. Journal of Law and the Biosciences, 2(3), pp.485-509.
4 Kadish, S.H., Schulhofer, S.J. and Barkow, R.E., 2016. Wolters Kluwer Law & Business.

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discretion powers granted by law in Chapter 3 part 3.11 of the Evidence Act of 1995 might
decide that the evidence provided before court carries with it some reliability and therefore may
rule that the evidence is admissible.
Question 2
Mony was killed by a single shot to the heart and a gun was found next to the body.In proceeding
with the case the prosecution wants to tender the gun found at the scene of crime as the murder
weapon. For the gun to be admitted as evidence in the trial there are several conditions that have
to be met before the judge can determine whether or not it will be admitted .Chapter 3
Admissibility of Evidence part 3.1 spells out this conditions.In the case of Evans vs the Queen
2007 it was established that a material cannot be used in conviction if in the first place it did not
meet the threshold of forming evidence.
In most criminal cases and especially those involving murder, the prosecution will first try to
check through if the weapon found at the crime scene contains any fingerprints. This is the first
step in trying to identify the person that committed the crime.In relation to this matter there were
no fingerprints that were found on the weapon and thus it would be very difficult for the
prosecution to try and link the gun to Mony and also as the murder weapon. If we consider only
this then the evidence will be inadmissible.
Secondly it was established that there were no traces of DNA found on the gun recovered at the
crime scene5. Lack of traces of DNA makes it very difficult for the prosecution to try and link the
5 Ormerod, D. and Laird, K., 2018. Oxford University Press.

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same to the suspect in court.it will prove to be a very hard thing for the prosecution to convince
the court that the gun should be admitted as evidence for trial.
The prosecution is only trying to rely on the fact that the gun had the words Bernado written on it
to convince the court that it was indeed the murder weapon and thus should be admitted as
evidence .Section 55 of the evidence act clearly illustrates on how evidence is relevant to the
case. The fact that the gun had those words does not necessarily imply that the same was used as
the murder weapon.( Pound, 2018) .It also does not link the accused who is Mino in any way to
the murder of Mony other than the fact that Doc had overheard Bernado telling Mino to use his
gun. Thus the Judge may find it difficult to admit the same as evidence as it lacked credibility.
Lastly, in trying to enter the gun as evidence in court, the prosecution should have engaged an
expert in carrying out a critical analysis of the gun before submitting their request.In order for
the prosecution to try and bring forth the gun as evidence, they should first undertake a forensic
and ballistic examination of the weapon. This examination is critical as it normally proves if the
gun before court was the one that fired the shot that killed Mony. Also they needed to retrieve
the bullet and examine it in order to have a thorough conclusion as to whether the bullet that
killed Mony was fired form the gun in question. If this was done it would have provided direct
physical evidence and thus would have been admissible. 6
However if none of this was carried out and the fact that there were no matching fingerprints and
any traces of DNA found at the scene, the Judge might consider this as very weak and unreliable
and thus may rule against having the gun admitted as evidence for purpose of trial.
6 Pound, R., 2018. Criminal justice in America. Routledge.

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Question 3
The prosecution has brought to court photos that tend to depict the body of Mony lying in a pool
of blood and a gun lying about four meters from the body to be admitted as evidence for the sole
purpose of carrying out the trial
The submission of photos or videos in the court as part of evidence can only be allowed if certain
provisions of the law that guide the same are strictly followed and adhered to. This can be found
in Section 57 under provisional relevance. In view of this, photographic evidence can be
analyzed by way of 2 theories. That is the theory of picture testimony and the theory of the silent
witness.7
For the pictorial testimony theory, it simply implies that the photos brought to be considered as
evidence can only be admitted if they are corresponding to total accuracy. This is to imply that
in as much as the photos are presented in court, it still requires to be followed up by a testimony
of the person that is in charge or who is sponsoring the photos8. The witness has to appear in
court in person to confirm that what is depicted in the photos is the true picture of what he saw at
the scene.It therefore follows that this theory ultimately relies on the observation of the witness.
7 Robinson, P.H., 2017. (pp. 175-232). Routledge.
8 Simester, A.P., Spencer, J.R., Stark, F., Sullivan, G.R. and Virgo, G.J., 2016. Bloomsbury
Publishing.

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Therefore in relation to the Mino murder trial, if the prosecution has a witness who might have
taken photos or videos of the crime scene, then they need to ensure that the witness appears in
court to give the photos the full backing that it requires for it to be admitted as evidence.
Otherwise the judge may opt against admitting it.
The other theory that we need to look at is the silent witness theory. As the name silent suggest,
there is no witness hat is needed to come to court in order to confirm on the photos so that they
can bear weight .In this theory the only thing required is for those that are bringing the photos to
be admitted need to prove that the process that was used to produce the pictures is accurate and
reliable.9 They have to demonstrate that due process was carried out in retrieving those photos
and high levels of professionalism were adhered to. The court may decide not to admit the
evidence if by any chance it feels that the process followed in getting the photos was not proper
and thus they are not reliable.
One thing to note though is the fact that although there is an ease in which the photos produced
in court may be admissible, an opinion of an expert may be sought. Section 135 talks about the
general discretion in exclusion of evidence. Therefore, upon discretion of the court, an expert
may be required to appear in court to back up the photos 10
In examining the case at hand, it would be therefore upon the prosecution to prove to the court
that indeed they followed the right and proper channels in producing the photos before court.
9 Simbeye, Y., 2017. . Routledge.
10 Schmalleger, F., 2017. Pearson.

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They must clearly demonstrate this process in such a manner that it leaves no doubt about it.
Once these conditions are met then the court may decide to admit the photos as evidence.
Bibliography
Baker, K.K., 2017. Gender and emotion in criminal law. In Nussbaum and Law (pp. 205-224).
Routledge.
Boister, N., 2018. An introduction to transnational criminal law. Oxford University Press.
Farahany, N.A., 2016. Neuroscience and behavioral genetics in US criminal law: an empirical
analysis. Journal of Law and the Biosciences, 2(3), pp.485-509.
Kadish, S.H., Schulhofer, S.J. and Barkow, R.E., 2016. Criminal law and its processes: Cases
and materials. Wolters Kluwer Law & Business.
Ormerod, D. and Laird, K., 2018. Smith, Hogan, and Ormerod's Criminal Law. Oxford
University Press.
Pound, R., 2018. Criminal justice in America. Routledge.
Robinson, P.H., 2017. A Functional Analysis of Criminal Law. In The Structure and Limits of
Criminal Law (pp. 175-232). Routledge.
Simester, A.P., Spencer, J.R., Stark, F., Sullivan, G.R. and Virgo, G.J., 2016. Simester and
Sullivan's criminal law: theory and doctrine. Bloomsbury Publishing.

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Simbeye, Y., 2017. Immunity and International Criminal Law. Routledge.
Schmalleger, F., 2017. Criminal justice. Pearson.