Chapter 6 - (Part 2B) Discretion to exclude evidence

Question 1

What section in the EAC provides for the general discretion to exclude evidence in both civil and criminal proceedings? and explain the provision.

Answer 1

s135 EAC

The court MAY refuse to admit evidence if its probative value is substantially outweighed by its prejudicial value

Question 2

Finish the sentence:
Evidence is not prejudicial merely because it strengthens the prosecution case.Evidence is only prejudicial when the jury are likely to give the evidence….

Hint three things…

Answer 2

…(1) more weight than it deserves or (2) the nature or content of the evidence may inflame the jury or (3) when the evidence may divert the jurors from their task.

Question 3

What section in the EAC provides for the discretion in CRIMINAL proceedings to exclude evidence? explain it and it applies to?

Answer 3

s137

In a criminal proceeding, the court MUST refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Question 4

What section is exclusionary discretion
in EAQ?

Answer 4

s130

Question 5

Can the discretion to exclude evidence apply to excessively inflammatory evidence such as gruesome photographs and/or expert evidence of a factitious disorders or cultural practices?

Answer 5

Yes (pp475)

Question 6

What are the distinction between s 135
and s137 exclusionary discretions in the
EAC?

Hint two differences…

Answer 6

137 creates a greater bar for prosecution,
because it requires only that probative
value be ‘outweighed’ as opposed
to ‘substantially outweighed’ as per 135.

137 is also mandatory while 135 is discretionary

Question 7

What EAC section is discretion to exclude
ADMISSION for unfairness?

Answer 7

s90

Court can refuse to admit evidence of an admission if it is adduced by the prosecution and it would be unfair to the defendant to use it as evidence.

Question 8

What EAC section is discretion to exclude
for illegality?

Answer 8

s138

Question 9

What is difference EAC 136 vs EAC 135?

Answer 9

136 is discretion to limit, 135 is discretion
to exclude

Question 10

What are the categories of what are commonly called discretions to exclude relevant and otherwise admissible evidence at common law ?

Hint 5

Answer 10

1. Prejudicial value outweighs probative value (s130 EAE; s135 EAC-137)
2. Di

Question 11

Finish the sentence:

The prejudicial effect, is in one sense, the opposite of the probative value it refers to the risk…

Answer 11

the evidence will be assessed by irrational or non rational processes.