Test 3

Question 1

Define character evidence

Answer 1

Evidence on the type of person someone is, based on their past behaviour

Question 2

What is character evidence usually based on?

Answer 2

Circumstantial evidence

Question 3

What is the inherent danger of a character witness?

Answer 3

It may be given more weight than it deserves; Bad character evidence might be given more weight than it deserves; The trier of fact may jump to conclusions about the accused.

Question 4

What are factors to consider in determining the probative value of evidence?

Answer 4

1. Proximity in time b/w offence and similar acts.
2. Similarity in the charged conduct and past crimes.
3. Number of similar acts - lots; or very few.
4. The circumstances surrounding the similar acts.
5. Distinctive features that unify the incidents.
6. Existence of any intervening acts.
7. Any other fact that supports or rebuts the underlying unity of the acts.

Question 5

What can arise from circumstantial evidence?

Answer 5

Potential prejudice when comes to past behaviour.

Question 6

What case spoke to probative value of character evidence? Similar fact evidence test.

Answer 6

R. v. Handy

Question 7

What needs to be present when considering character evidence?

Answer 7

A striking similarity

Question 8

What case dealt with the issue of admissibility of bad character?

Answer 8

R. v. Soikie

Question 9

When can an accused criminal record be called?

Answer 9

When an accused chooses to testify and they may paint themselves in a light where there is no criminal record or they address their own character.

Question 10

Name 3 dangers if an accused testifies and a criminal record is introduced.

Answer 10

1. The jury may want to convict based on past wrongdoings.
2. The accused may not be a likeable person and deserves to be punished
3. The jury may want to bring closure and will not want to conduct a thorough analysis.

Question 11

What is 3rd party witnesses testimony limited to when it comes to the good character of the accused?

Answer 11

They may only testify as to the general good character based on their dealings with them.

Question 12

If the accused provides testimony of their character, is this low or high probative value?

Answer 12

Low

Question 13

What can an expert witnesses evidence be, when it comes to the trier of fact?

Answer 13

Persuasive

Question 14

Are non-party witnesses allowed to provide testimony?

Answer 14

Yes

Question 15

What kind of witness can provide propensity evidence?

Answer 15

Expert evidence

Question 16

What element would be considered with propensity evidence?

Answer 16

Admissibility

Question 17

What kind of evidence can be called once the accused brings up their character?

Answer 17

Rebuttal evidence

Question 18

What is the difference between propensity evidence and character evidence?

Answer 18

Propensity evidence can only be given by an expert and character evidence can be given by any witness to speak to the accused general character.

Question 19

What two requirements need to be met for propensity evidence to be admitted into evidence?

Answer 19

1. Distinctive behavioural characteristics.
2. The probative value must be very high to exceed its extreme prejudice.

Question 20

What case showed specific characteristics under propensity evidence?

Answer 20

R. v. Mohan

Question 21

What is meant by prohibited inference?

Answer 21

The general rule of bad character evidence; generally prohibited.

Question 22

Why is co-accused testimony beneficial?

Answer 22

It paints a picture that your colleague is more culpable.

Question 23

What is the rape shield law?

Answer 23

Limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behaviour.

Question 24

What are the 4 stages to the admissibility test?

Answer 24

1. The trial judge must start from proposition that similar fact evidence is inadmissible.
2. The Crown must show that the evidence is relevant to some issue that goes beyond the character of the accused ie identification
3. Probative value of the crowns case outweighs the corresponding prejudice to the accused.
4. There must be a distinctiveness to the similar acts ie a mask during a sexual assault.

Question 25

What is defined under "similar'?

Answer 25

1. Striking similarity 2. Reasoning prejudice 3. Moral prejudice

Question 26

What case covers non distinction in similar facts?

Answer 26

R. v. Arp

Question 27

What are prior acquittals deemed as?

Answer 27

Off-limits

Question 28

What section covers non-accused witnesses criminal record?

Answer 28

S. 12 of the Canada Evidence Act

Question 29

What is opinion evidence defined as?

Answer 29

A conclusion or inference from what a witness has seen.

Question 30

What is the role of the court?

Answer 30

Evaluate and determine the facts in light of the totality of the evidence.

Question 31

What does expert evidence need to be?

Answer 31

Generalized and cannot be inflammatory.

Question 32

What are the two exceptions to the prohibition against opinion evidence?

Answer 32

1. the witness is an expert and the court requires an expert opinion 2. The court needs a layperson witness to express an opinion for a clear understanding of his testimony to be obtained (ordinary experience)

Question 33

What is an opinion?

Answer 33

An opinion is NOT a statement of fact; it is based on inferences or conclusions that are drawn from facts or observations.

Question 34

What are the 3 categories of allowed evidence of opinion evidence?

Answer 34

1. Where a layperson W is in as good - if not better position than the court to make the conclusion from the observed fact and where the inference is obvious and unquestionably true. 2. Where a layperson W's opinion evidence has little potential for harm and is an opinion that a layperson could be expected to arrive at. 3. Where the subject matter of the layperson opinion is within the knowledge and expertise of an average person.

Question 35

What is the two part test for expert evidence?

Answer 35

Logical/legal relevance & Necessity

Question 36

What is the maximum amount of expert witnesses allowed under the OEA?

Answer 36

3

Question 37

What is the maximum amount of expert witnesses allowed under the CEA?

Answer 37

5

Question 38

What does hired gun syndrome mean?

Answer 38

The expert is no more than the mouthpiece of the client, i.e. to say virtually what its client wants him to say and to support the case.

Question 39

What can be admitted as evidence in lieu of calling the expert to testify as a witness?

Answer 39

An expert report?

Question 40

Under what act is an expert report allowed?

Answer 40

s. 52(2) of the OEA

Question 41

What does R. v. Abbey speak to?

Answer 41

The expert was unable to testify as to the specific reason the accused tear drop tattoo had meaning but could only speak to the meaning of the tattoo within gang culture.

Question 42

What is the exception in the instance that expert evidence is being solely introduced to show the witness is telling the truth?

Answer 42

Retractions of allegations of sexual abuse from a child witness.

Question 43

What is an example of privilege by class?

Answer 43

Solicitor/client; doctor/patient

Question 44

What is an example of privilege by case?

Answer 44

Expectation of privacy

Question 45

What are the two ways that evidence law keeps privilege limited?

Answer 45

1. Defining privilege narrowly 2. Privilege exception

Question 46

What needs to be proven for privilege of class?

Answer 46

Prove the party's relationship clearly falls within the prescribed class.

Question 47

Does solicitor/client privilege goes beyond death?

Answer 47

Yes.

Question 48

What is the threshold for solicitor/client privilege?

Answer 48

Legal advice.

Question 49

What can be done to "pierce the privilege"?

Answer 49

An application can be made.

Question 50

What is the innocence at stake rule?

Answer 50

The accused my prove that there is no other source for exonerating information and the accused would otherwise be able to raise a reasonable doubt. - Communication exists - Producing the communications to be examined by the judge

Question 51

How can a spouse give evidence when considering spousal privilege?

Answer 51

- Observation - Are not getting back together - Death - Voluntarily - Crime is committed against the other spouse

Question 52

What is the Wigmore test?

Answer 52

1. Clear intent the communications are confidential. 2. Confidentiality must be a hallmark expectation of the relationship.

Question 53

What is the two part test for third party records?

Answer 53

1. Relevance. 2. Review and the extent the records will be produced decided by the judiciary.

Question 54

What are the 3 factors of keeping records private?

Answer 54

1. Societal Interest: a) Reporting of sexual offences b) Seeking treatment c) Integrity of the trial process and the impact of the decision.

Question 55

What is the exception to privilege?

Answer 55

Imminent bodily harm or death threat to public safety and the person or group is clearly identifiable.

Question 56

What does litigation privilege protect?

Answer 56

Communications

Question 57

What kind of privilege is protected from evidence being shared in the courtroom?

Answer 57

Settlement privilege

Question 58

What are the two exceptions to the apology rule?

Answer 58

Given on the witness stand and in a criminal proceedings.