Evidence law Flashcards
(51 cards)
S. 91(27) of the Constitution Act
Gives feds exclusive power over criminal law, including procedure.
s. 92(13) and (14) of the Constitution Act
(13) Provinces have exclusive authority over property and civil rights.
(14) Gives the provinces jurisdiction over the administration of justice in the province, including procedure in civil matters
“Fundamental rule” of evidence.
Everything that is RELEVANT to a fact in issue will be admissible unless there’s a legal reason for excluding it.
Underlying values of fundamental rule of evidence.
- truth
- fairness
- Efficiency
Direct evidence
When witnesses testify to what they have seen, hear, or done and acceptance of their testimony is sufficient to PROVE the fact in issue.
Circumstantial evidence.
When witnesses or exhibits testify to things from which its necessary to draw inferences/conclusions to prove the facts in issue.
What is proof beyond a reasonable doubt?
“A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence” (Lifchus)
What is a directed verdict and the test for getting one?
The accused can ask the cause of action or count on the indictment be dismissed.
TEST: is there evidence upon which, a reasonable jury, properly instructed could convict on?
Evidentiary burden
The burden to show the mere existence of evidence capable of putting an issue into play (doesn’t require “proof” of anything).
Persuasive burden
The burden to show that the evidence establishes something to a required “onus of proof” (BOP v BARD, depending on the circumstances)
S. 16 - Witness whose capacity is in question
16 (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine.
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
Examination in chief
The party offering a witness calls that witness to testify. That party then questions them (no leading questions, must be open).
Cross examination
The opposing party questions the witness (questioner can and often does suggest answers to the witness)
Present memory refreshed
Witness can refresh their memory “by any means” (including through inadmissible evidence).
Past recollection recorded
In a case like this, the witness has NO present recollection of the event, which is what was previously recorded.
For record to be admitted, following preconditions: 1. Doc made at or w/in a reasonable time of event 2. Must have been made personally by the witness or someone in the witness’s presence 3. The witness must be able to confirm that, the time, they recorded the event truthfully 4. Finally, it’s necessary that the witness’ memory on the subject be exhausted before such a record can be admitted
The confrontation rule.
Duty on counsel to put a matter directly to a witness if counsel is going to later adduce evidence to impeach the witness’ credibility or present contradictory evidence.
What is relevance?
The relationship between two acts (it is relevant). Does the evidence in question, as a matter of logic and human experience, make the matter more or less likely?
But also; relevance has to be sufficiently probative to justify its admission.
What is probative value?
The degree of relevance to the facts in issue and the strength of the inferences that can be drawn.
What is prejudicial effect?
Moral prejudice = the evidence is likely to arouse the jury’s emotions of prejudice, hostility or sympathy
Reasoning prejudice = the evidence is likely to create a side issue that will unduly distract the jury
What are the 2 concepts that credibility encompasses?
- Veracity - considerations about sincerity and truthfulness
- Reliability - is the witness honest/sincere but mistaken?
What are the rules related to bolstering credibility?
- Rule against oath healing: A party can NOT lead evidence limited to showing the witness is generally credible (rule does not apply if witness’s credibility is attacked). Also; generally an A is entitled to call good character evidence as part of their defence. The A alone can personally testify to specific acts of good character but other witnesses are limited to testifying about general reputation.
- Prior consistent statements: general prohibition (or exclusionary rule) against tendering prior consistent statements.
What is the EDGAR exception to the usual prohibition against prior consistent statements?
Spontaneous exculpatory statements by an A when first confronted by cops CAN have probative value. May be admissible IF accused testifies and is exposed to cross.
The collateral fact rule
The tendering of SUBSEQUENT evidence to contradict on witness on matters that are NOT material is not allowed.
Principles from Corbett
- Evidence of an A’s criminal record has legit value in relation to credibility
- Must have confidence that juries will follow instructions
- Convictions for offences of dishonesty will be much more probative of the rationale behind behind s. 12 than other offences.
- Conviction for offences identical or similar to the offences before the court may attract the “Corbett principle” providing that them does NOT otherwise mislead the jury.
- The remoteness or nearness of the convictions to the present charges is also a consideration.
