Productions and Evidence

The difference between what is listed and what is proved

One of the most persistent and consequential misunderstandings about Scottish criminal trials concerns the relationship between the documents and materials listed in connection with a case and the evidence that is actually placed before the jury. That misunderstanding operates in both directions. It can make a case look stronger than it was. And it can make a conviction look more secure than it is.

This page explains what productions are, how they differ from evidence, why that difference matters enormously both inside and outside the courtroom, and what the practical implications are for anyone trying to understand a concluded case.

What productions are

In Scottish criminal proceedings productions are the physical items, documents, records, photographs, forensic reports, digital material and other objects that are listed in connection with the case. In a solemn case they appear on a list appended to the indictment.

A production can be almost anything. A mobile phone. A series of text messages. A medical report. A series of photographs. A bank statement. A police log. A recording. A letter. A social media post. The list of productions in a serious case can run to dozens or hundreds of items.

The list of productions is compiled by the Crown and served on the defence as part of the indictment. Its purpose is to put the defence on notice of the material the Crown has in its possession and may seek to rely upon at trial.

That is what productions are. A list of what exists and what might be used.

What evidence is

Evidence is an entirely different thing.

Evidence is what is actually placed before the jury during the trial. A production becomes evidence only when it is formally introduced during the proceedings, authenticated by a witness who can speak to it, and admitted by the court. Until that happens a production is nothing more than an item on a list.

The process of introducing a production into evidence requires a witness who can identify the item, explain what it is, confirm its provenance and speak to its relevance. A forensic report requires the forensic scientist who prepared it to give evidence about its findings. A series of text messages requires a witness who can identify the phone, confirm the messages, and speak to their significance.

Where no witness is available to speak to a production, where the Crown decides not to call the relevant witness, or where the production is ultimately not relied upon, that item never becomes evidence. It remains on the list but it is never placed before the jury. The jury decides the case without ever seeing it, hearing about it, or being asked to consider what it means.

Why the distinction matters inside the courtroom

Inside the courtroom the distinction between productions and evidence matters because the jury's decision must be based on the evidence they have heard and seen, not on what appears on a list they have never been shown.

A jury that convicts does so on the basis of what was actually placed before them and tested in the trial process. They have not seen the full list of productions. They do not know what was on the indictment that never made it into the courtroom. They decide on what they heard.

This means that a conviction may rest on a much narrower evidential base than the list of productions would suggest. A case that appeared, from the indictment, to involve a large volume of material supporting the Crown's account may in practice have been decided on the evidence of one or two witnesses and a small number of documents that were actually produced and spoken to.

That is not necessarily a problem. Trials are supposed to involve the testing of evidence and the exclusion of material that does not meet the necessary standards. If the Crown chose not to rely on certain productions it may have been because those productions did not help the Crown's case, because the relevant witnesses were unavailable, or because the material was not ultimately relevant to the issues before the jury.

Why the distinction matters outside the courtroom

Outside the courtroom the distinction between productions and evidence matters in a different and equally significant way.

When criminal cases are reported in the press, when verdicts are discussed publicly, and when people form views about the safety of a conviction, they are often working from accounts that describe the indictment rather than the evidence. A news report that lists the productions in a serious case creates an impression of a case supported by an overwhelming volume of material. The reader has no way of knowing how much of that material was ever placed before the jury.

The result is an illusion of evidential strength. The conviction looks secure because the list of productions looks comprehensive. The possibility that the jury convicted on a much narrower basis than the productions suggest never enters the picture.

For people trying to understand whether a conviction is safe it means that taking the reported productions as a guide to the strength of the evidence is fundamentally misleading. The right question is not what was on the indictment but what was actually placed before the jury, how it was tested, and whether it was sufficient to support the verdict.

For families and supporters of convicted persons it means that the apparent weight of material listed in connection with the case is not a reliable guide to whether the conviction is secure. A case that looks, from the outside, to rest on a mountain of evidence may on closer examination rest on considerably less.

And for journalists and commentators it means that reporting a list of productions as though it were a catalogue of proved facts is a misrepresentation of what actually happened at trial, however unintentional.

Productions and disclosure

The list of productions also has a specific significance in the context of disclosure.

The productions listed on the indictment are the items the Crown has identified and is potentially relying upon. They represent a subset of all the material generated by the investigation. The full investigation will have produced a much larger volume of material — records, statements, logs, reports and communications — much of which will never appear on any productions list because the Crown does not intend to rely on it.

Some of that material will have been disclosed to the defence under the Crown's disclosure obligations. Some of it may not have been. The gap between what the Crown has and what the defence has received is the territory in which disclosure failures occur.

Understanding what is on the productions list is therefore only part of the picture. Equally important is understanding what the investigation produced that is not on the list and whether all of that material was properly disclosed.

What to look for in a concluded case

For anyone reviewing a concluded case with questions about its safety the productions and evidence distinction raises several specific questions worth examining carefully.

The practical significance for post-conviction review

In any serious post-conviction review the productions and evidence distinction is one of the first things that should be examined.

Getting the trial transcript is essential. It is the only reliable guide to what was actually placed before the jury. Without it any assessment of the evidential basis for the conviction is speculative.

Comparing the transcript against the productions list identifies what was and was not used. That comparison can reveal significant gaps and raise important questions.

Examining the disclosed material against the productions list identifies whether everything listed was in fact provided to the defence.

And going beyond the productions list to ask what the investigation generated that never appeared anywhere is the work of a thorough post-conviction review — work that the SCCRC is specifically equipped to carry out.

None of this is simple or quick. But it is the kind of careful, methodical examination that distinguishes a serious post-conviction review from a general sense that something went wrong. The more specifically the questions can be asked the more effectively they can be pursued.

What to take from this page

Productions are items listed in connection with a case that the Crown may seek to rely upon at trial. Evidence is what is actually placed before the jury and tested in the proceedings. The two are not the same and confusing them produces a fundamental misunderstanding of the evidential basis for any conviction. A long productions list does not mean a strong evidential case. It means a large amount of material was generated. What matters is what was spoken to at trial, how it was tested, and whether it was sufficient to support the verdict. In post-conviction review the relationship between productions, disclosed material and trial evidence is one of the most important things to examine carefully.