Exclusive Rules of Evidence Flashcards
(31 cards)
The exclusive rules of evidence deal with?
The exclusive rules of evidence deal with: • veracity • propensity • hearsay • opinion • identification • improperly obtained evidence.
In addition to these specific exclusionary rules, there is the general exclusion of probative value versus prejudicial effect on the proceeding (s8). This was discussed in the previous chapter.
The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence?
The Evidence Act 2006 divides what was called “character” evidence at common law into two classes of evidence:
• “veracity” – a disposition to refrain from lying, and
• “propensity” – a tendency to act in a particular way.
37(3) Veracity rules
(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
37 Veracity rules
(3) In deciding, for the purposes of subsection (1), whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c) any previous inconsistent statements made by the person:
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful.
37(4) Veracity rules
A party who calls a witness?
(4) A party who calls a witness—
(a) may not offer evidence to challenge that witness’s veracity unless the Judge determines the witness to be hostile; but
(b) may offer evidence as to the facts in issue contrary to the evidence of that witness.
In order to be admissible, veracity evidence must be substantially helpful in assessing the veracity of the person. This is a higher threshold than relevance under s7?
In order to be admissible, veracity evidence must be substantially helpful in assessing the veracity of the person. This is a higher threshold than relevance under s7, in that it has to do more than simply have a tendency to prove or disprove a matter. In deciding whether evidence as to veracity is “substantially helpful”, the judge may consider the matters in s37(3)(a)-(e).
The substantial helpfulness test applies to both veracity evidence in evidence in chief and that elicited through cross-examination.
Substantial helpfulness is not a sufficient test in two instances?
Substantial helpfulness is not a sufficient test in two instances:
- where the prosecution wish to offer evidence about a defendant’s veracity (s38), and
- where a defendant offers veracity evidence about a co-defendant (s39).
In order to be able to offer evidence of a defendant’s veracity? s38
In order to be able to offer evidence of a defendant’s veracity:
• the prosecution must show that veracity is relevant – permission for the prosecution to offer evidence about the veracity of a defendant will only be granted if the defendant’s veracity is in issue.
- the defendant has offered evidence about his or her veracity (by testifying or questioning witnesses) or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue (the defendant must be responsible for the evidence – i.e. must have orchestrated it);
- the proposed evidence must meet the substantial helpfulness test.
- The prosecution must get permission from the judge to offer the evidence.
In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, the judge may take into account (s38(3))?
In deciding whether to give permission for the prosecution to question the defendant about his or her veracity, the judge may take into account (s38(3)):
- the extent to which the defendant’s veracity, or the veracity of a prosecution witness, has been put in issue in the defendant’s evidence
- the time that has elapsed since any conviction about which the prosecution seeks to give evidence
- whether any evidence given by the defendant about veracity was elicited by the prosecution.
If an attack on the prosecution witness’s veracity was in reference to the facts in issue, the prosecution cannot offer evidence attacking the veracity of the defendant.
40 Propensity rule
(1) In this section and sections 41 to 43, propensity evidence, means?
40 Propensity rule
(1) In this section and sections 41 to 43, propensity evidence -
(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but
(b) does not include evidence of an act or omission that is –
(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question
Propensity evidence includes?
- propensity as to actions
* propensity as to state of mind (eg a lack of inhibition, a love of violence).
Propensity evidence does not include?
- evidence of an act or omission that is one of the elements of the offence for which the person is being tried
- evidence that is solely or mainly about veracity (which is governed by the veracity rules set out in s37).
Propensity evidence about defendants – s41 Evidence Act 2006?
Section 41(1) incorporates the ability to offer evidence of good propensity: the propensity limb of what was termed “good character evidence” at common law. However, it also allows defendants to offer: • evidence of disreputable conduct about him or herself (something which a defendant may want to do for tactical reasons), or • neutral propensity (eg evidence that the defendant attends an evening class every Tuesday and has attended without fail for the last term may provide an alibi – it displays a propensity that is neither good nor bad). A defendant may offer propensity evidence when testifying, but also through other witnesses, if he or she does not testify.
When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following? S43(3)
(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters? 43(4)
When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—
(a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
(b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
The Court in Rei v R17 clearly laid out the requirements for the admission of propensity evidence under s43. The evidence must?
The Court in Rei v R17 clearly laid out the requirements for the admission of propensity evidence under s43. The evidence must:
a) constitute “propensity evidence”, that is evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which the appellant is alleged to have been involved;
b) have a probative value “in relation to an issue in dispute” and other matters that may be relevant, including those prescribed in s43(3); and
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
Under the Act, a hearsay statement is defined as (s4)?
Under the Act, a hearsay statement is defined as (s4):
“a statement that –
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents”
“Statement” means (s4)?
“Statement” means (s4):
• a spoken or written assertion by a person of any matter, or
• non-verbal conduct of a person that is intended by that person as an assertion of any matter.
17 Hearsay rule?
17 Hearsay rule
(1) A hearsay statement is not admissible except—
(a) as provided by this subpart or by the provisions of any other Act; or
(b) in cases where—
(i) this Act provides that this subpart does not apply; and
(ii) the hearsay statement is relevant and not otherwise inadmissible under this Act.
18 General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if?
18 General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2) This section is subject to sections 20 and 22.
Section 18 makes it clear that there are two criteria for admissibility:
• reliability, and
• unavailability, or that “undue expense or delay would be caused”.
The notice requirement in s22 of the Evidence Act 2006 must also be met before a hearsay statement can be admitted.
The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence, give examples?
- where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
- the rule addresses the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
- there is a danger that witnesses will make mistakes about the meaning or content of statements made by other people. The game of “Chinese Whispers”, where inaccuracies and mistakes are created through the repetition of a phrase amongst a group of people, is illustrative of this point.
Section 16(1) Evidence Act 2006 defines “circumstances”: circumstances, in relation to a statement by a person who is not a witness, include?
Section 16(1) Evidence Act 2006 defines “circumstances”:
circumstances, in relation to a statement by a person who is not a witness, include—
(a) the nature of the statement; and
(b) the contents of the statement; and
(c) the circumstances that relate to the making of the statement; and
(d) any circumstances that relate to the veracity of the person; and
(e) any circumstances that relate to the accuracy of the observation of the person
This is a non-exhaustive definition. It provides the list of matters the court should consider when determining whether the “circumstances relating to the statement provide reasonable assurance that the statement is reliable” (s18).
Section 16(2) defines what is meant by “unavailable as a witness”?
Section 16(2) defines what is meant by “unavailable as a witness”:
(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person—
(a) is dead; or
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.
23 Opinion rule?
23 Opinion rule
A statement of an opinion is not admissible in a proceeding, except as provided by section 24 or 25.
The Act defines “opinion” as?
The Act defines “opinion” as “a statement of opinion that tends to prove or disprove a fact” (s4). The distinction between what is fact and what is opinion is sometimes unclear.
