Real and Demonstrative Evidence: Non-Testimonial Means of Proof

Real and Demonstrative Evidence: Non-Testimonial Means of Proof

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  Criminal trial: where accused pleads guilty, this is a formal admission of the facts necessary to establish the elements of the offence/ facts in indictment, but not an admission to any further facts
  
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  Role of judge: must ensure that guilty plea is voluntary and based on full understanding of nature of the charge and its consequences
  
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  Note: Informal Admissions are saying in court “the evidence of Cop X” is admitted; if that ends up being a problem or they need to clarify, that party must produce the evidence they’re relying on; doesn’t amount to final resolution of fact like guilty plea or admission
  

s.655 Criminal Code Admissions at trial

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  Where accused is on trial for indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof
  
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  Admissions reduced to writing
  

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  Facts: charged with robbery, made some statements in court that he wanted to explain, plead guilty
  
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  Where accused is represented by counsel, trial judge is not obligated to look into the factual basis of the guilty plea
  
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  Dissent: based on what accused said in court, there may have been a colour of right defence available
  

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  Accused of murdering wife, she died of arsenic poisoning, Accused wanted to include admission that he was having extra-marital affair; Crown didn’t want that in
  
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  Could accused in effect compel the crown to accept an admission which Crown wasn’t demanding? NO
  
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  While crown’s case being put in, defence can’t make admission unless crown willing to accept, and defence can’t admit a fact unless the allegation has been made; need to make allegation and then admit it, not for defence to lead on what admissions will be
  

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  Accused charged with murder, Crown wanted to lead evidence on murder count of attacks that occurred 2 weeks prior to the killing on 2 girls which Crown alleged were SFE; use SFE of prior attacks to prove ID i.e. issue not in dispute, Crown trying to bring in extremely PE evidence with no PV
  
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  But accused wasn’t disputing that he was person involved in homicide; only issue was Criminal Responsibility based on mental disorder
  
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  Court cites Castellani, says Crown can’t refuse acceptance of admission to keep issue alive artificially
  

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  Both counsel tendered agreed statements of fact: instead of saying this person on this date saw this stuff (facts), they said Bob will admit that this happened
  
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  Trying to admit evidence, not facts; that misses the point that you tender evidence and court decides what’s fact
  
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  Evidence contradicted by another witness; could judge tell jury that this statement in this admission is different from what this witness said so weigh it
  
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  Court said that wasn’t necessarily improper, but if you have admission of fact where evidence called in trial contradicting admission, it’s best for Crown to tender the evidence so jury can make credibility finding between the two evidence, not testimony vs. paper
  

Admissions: BC Civil Rules

Rule 3-3: Responding to a Notice of Civil Claim Contents of response to civil claim

(2) A response to a civil claim must

(i) Indicate, for each fact, whether that fact is: admitted, denied, or outside knowledge of D

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  If in the course of your pleading, any fact you admit proved is proved and you’re stuck with it
  
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  Otherwise you must apply for leave to omit it, rarely granted, may have to pay for it
  
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  But formal admissions are part of the pleading of civil case
  

Rule 7-7: Notice to Admit

(1) Party may request any party to admit, for purposes of the action only, the truth of a fact or the authenticity of a document specified in the notice

(2) The truth of a fact or the authenticity of a document specified in a notice to admit is deemed admitted, unless in 14 days after service of notice, party receiving notice serves on party serving notice a written statement that

(a) Specifically denies the truth or fact or authenticity

(b) Sets out detailed reasons why party can’t make the admission

(c) States that refusal to admit is based on privilege or irrelevancy, and sets out reasons for refusal

s.652 Views

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  If there’s situation where particular location, view-line, physical setting, is important, the court can direct the jury to go to the place
  
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  Must be very careful, what’s on the record, who’s talking to whom
  
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  Also within power of Civil Judge; also the judge alone can take a view with the parties
  
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  (1) If in interests of justice, at any time after the jury has been sworn and before it gives its verdict, a judge may direct jury to have a view of any place, thing, or person, and shall give directions respecting manner in which the things will be shown and may for that purpose adjourn the trial
  
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  Paciacco: Take a view to better understand the evidence
  
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  Issue: Is this evidence? Is what the judge who took a view saw evidence?
  
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  Meyers says it’s common sense the judge can form own judgment on real evidence of a view just same as oral evidence of witnesses, people bring in scale models anyway; illogical to tell them to forget what they saw
  

Real Evidence

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  Term usually applied to “original” things that allegedly played a part in the action before the court, such as the “murder weapon”
  

Demonstrative Evidence

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  Involves the use of visual aids to illustrate or explain. Used to assist a witness to illustrate or explain his evidence. May include maps, diagrams, re-enactments, demonstrations
  
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  Wigmore: circumstantial evidence: witness saying they saw accused has a hook for a hand, which has inference, or showing scratch or mark made by the hook; OR you can just look at the hand, no need for inference just direct perception based, like a view
  

Admission of Real and Demonstrative Evidence

1. 
   Relevant and Material
   
2. 
   Authenticated under oath by witness capable of doing so
   

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  Could be easy, officer says I saw a body shot, and bullet casings around, here’s the bullet ok
  
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  Harder with DNA samples where there’s chain of authentication, detective, lab guy, etc
  
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  Judge determines whether there is sufficient evidence to permit a rational finding by jury that the item is as claimed; this is what it’s purported to be
  
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  The jury then weighs evidence to determine whether authentic
  
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  Any evidence upon jury could find the thing is as it’s said to be Andrade
  
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  Can be done by several witnesses or single depending on the item
  

3. 
   Not subject to an exclusionary rule
   
4. 
   PV outweighs PE (or if defence evidence PE does not substantially outweigh PV)
   

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  i.e. basic application of rules of evidence to a physical object
  
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  Cases with grisly autopsy photo or scene photo could be very prejudicial, or the piece of an ear if someone’s head blown off, creates only sympathy or disgust so PE over PV
  
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  But the bloody murder weapon, while grisly and offensive, is critical, and PV over PE
  

Andrade

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  Hair and fiber analysis, found on deceased’s body and linked to accused; in two instances the scientist who found fibres on body described them in one way, then detective who seized it described it differently, then person who it was given to gives another different description (one hair or two, including fibers or not)
  
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  Accused said inconsistent, shouldn’t go in, can’t prove authenticity that hairs found by scientist were same as at the end and then could be linked to accused
  
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  Trial judge can’t weigh conflicting evidence on the source, that’s for the jury
  

Stannaforth

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  Allegation that accused assaulted victim with 2 knives, she was shown knives and couldn’t say yes those were the two
  
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  Witness said appellant placed on of the knives in an unusual place in the bedroom, that’s where it was found; and there was another on his person; some evidence linking knives to the locations, so relevant; then it’s for jury to determine if those are the knives actually used
  

Mc..

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  Search accused, find container of white powder, arresting officer gives to exhibits officer, sends to lab in Ottawa, gives certificate, keeps sample and gives back rest, exhibit officer brings to court usually – but he died before going to court
  
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  Could you prove that substance is the same? Is there continuity/authenticity
  
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  Court said there’s no duty upon Crown to show detailed continuity, lack of proof merely goes to weight
  

Patterson

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  Should videotape go to jury…
  

Admission of Documents

Common Issues related to admissibility of documents:

1. 
   Relevance and Materiality
   

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  Mere fact of its existence may fit this, like Contract contents when that K is at issue is not hearsay
  

2. 
   Authenticity
   

1. 
   Call the writer of the document
   
2. 
   Call a witness who saw the document signed
   

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  ex. Wills, signor by definition won’t be there to testify
  

3. 
   Call a witness who is familiar with the writer’s handwriting
   

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  Layperson’s Opinion situation
  

4. 
   Compare the writing in dispute with a writing proved to the court’s satisfaction to be genuine
   
5. 
   Call an expert
   
6. 
   Admission of opposing party
   

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  In civil, especially commercial, there can be big binders of admitted documents
  

3. 
   Hearsay
   

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  May need principled exception, or business documents exception; most documents are hearsay
  

4. 
   Best Evidence Rule
   

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  Mostly irrelevant today where we can copy stuff quite well
  
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  Required the original document be tendered when party seeks to prove contents
  
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  Still exists for documents where party has original document and could produce it, but chooses not to and it’s critical; flexibility urged Paciacco
  

Petrie

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  Crown wants to tender letters found in accused’s cell, through woman who he’d been “keeping company with”; he sent her 2 postcards which she read but did not keep; she also testified she got 2 letters from him while he was in jail brought by “some of the boys”
  
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  She didn’t see him write letters, and didn’t exchange in correspondence to have some circumstantial proof it was actually him
  
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  So she was not competent to ID handwriting on letters to prove it’s him
  

Adam

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  Judge compared two pieces of handwriting, jury or judge can actually make side by side comparison and come to conclusion about whether it’s by same person
  
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  But before using direct comparison approach, the judge is obliged to give parties notice he intends to do this, and with respect to certain elements on the writing
  
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  Judge being investigator, but he’s supposed to be neutral so he has to give notice so parties can say but wait there’s inconsistencies
  

Cotroni

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  Best evidence rule; original audio recordings lost, but re-recordings made, tendered in evidence
  
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  Parties were not suggesting there’s any authenticity issue, but in any event the court cites old law on this rule and says it’s useless mostly, unless if there’s original document available you must enter it
  
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  Goodness or badness of it goes to weight, not admissibility: let everything in then decide
  

Morgan

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  Best evidence rule for print out or copy of electronically stored documents
  
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  CEA s.31.2 amended to provide special rules for authenticating computer records, need proof of integrity of system it’s stored on or presumption satisfied
  
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  Print outs: absence of evidence to the contrary, electronic document printed out satisfies Best Evidence Rule if print out’s manifestly or consistently acted on, relied on, or used as record of info stored
  

Photos and Videos

1. 
   Relevant and material
   
2. 
   Authenticated – verified on oath by person capable of doing so that:
   

1. 
   Accurately represents the facts
   
2. 
   Fair, no intent to mislead
   

3. 
   Not subject to exclusionary rule
   
4. 
   PV outweigh any PE
   

Schafner NSCA

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  Videos taken for everything now, video surveillance of cash register
  
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  Could someone authenticate video images? Witness called said video taken on functioning system, which recorded time and date on the video, that was then linked up with cash register tapes and other documents, to show Schafner stole $23 from employer
  
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  Didn’t need a person to say I saw this directly happening
  

Nikolovski SCC 1996

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  Bank robbery; the teller could not ID the robber, described robbery, couldn’t ID in line up or in court
  
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  There was clear video of robbery, which matched description of events and clothing of robber, etc
  
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  Could video itself be sufficient to allow trier of fact to ID accused as the robber?
  
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  The video evidence isn’t scared or startled like the bank teller who couldn’t focus on ID
  
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  Trier can make the finding: yes that person on video is same as guy here
  
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  Dissent: we only have assertion by the judge that it’s same person, don’t know what it was about the person that allows judge to come to this conclusion, not tested by cross-ex
  
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  As best practice, point out what it is about the video image that is similar to ID of person
  

Admissibility of Re-Enactments and Experiments

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  Case by case analysis
  
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  Overriding principle is whether PE of video re-enactment outweighs PV
  
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  Considerations: R v. MacDonald 2000 ONCA
  

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  Relevance
  
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  Accuracy
  
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  Fairness
  

Walizadah

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  Cab driver brutally murdered, police acquired video evidence of minivan going to parking lot, then couple of hours later, the victim’s taxi was brought next to minivan; taxi had been used to dump deceased’s body
  
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  Showing who owned minivan, got into taxi and brought it back- that’s in theory the killer
  
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  Witness described minivan looking like a particular kind of van, which was not like the kind W drove (square Dodge vs. rounder GM)
  
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  Police did re-creation of van coming to the scene
  
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  Bottom line from Collins:
  

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  Relevance of experiment/re-enactment evidence will depend on the degree of similarity between the replication and the original event
  
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  If expert evidence, you’ll have to meet Mohan test
  

Diagrams and Sketches

Admission of Diagram:

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  Witness familiar with scene, location, or structure, as it appeared at the relevant time, can swear that the diagram, sketch, or map is a fair representation
  
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  Diagram would assist the witness in giving evidence
  

Summaries

Foundation for admissibility of summaries:

1. 
   Original documents are so voluminous they can’t be conveniently examined in court
   
2. 
   Witness has examined the original data
   
3. 
   Witness is qualified to produce a summary of the info and did produce it
   
4. 
   Exhibit is fair and accurate summary of the underlying information
   

Judicial Notice

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  Judicial notice is an exception to the general rule that a court is not supposed to know anything until it is proven in the course of the litigation between the parties
  
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  Under certain circumstances a judge may take notice of a fact despite a lack of relevant and admissible evidence Paciacco
  

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  Some things are so obvious it would be silly to make people prove them Spence
  

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  Judges deemed to know, and thus obliged to take JN of:
  

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  Contents of any statute passed by Parliament
  
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  NOT bylaws; must prove bylaw was passed according to proper rules
  
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  NOT foreign law; must call foreign law expert to testify about that law (foreign includes other provinces or countries)
  

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  Adjudicative Facts
  

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  Hardest to take judicial notice because those are the specific facts to be determined in the litigation between the parties
  

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  Legislative Facts
  

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  Broad, general facts about social, economic and cultural context that establish the purpose and background of the legislation or decisions about judicial policy; they assist in determining questions of law
  

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  Social Framework Facts
  

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  Broad, general facts about social, economic, and cultural context used to aid the fact finding; they provide context for judge to consider and apply the evidence in given case ex. Lavallee battered wife syndrome
  
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  Social science used to construct frame of reference or background context for deciding factual issues critical to resolution of a case
  
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  Spence more rigorous for Legislative and Social Framework Facts: is “fact” acceptable to reasonable p:
  

1. 
   How close is the fact to the centre of the controversy (more central = more reliable/trustworthy)
   
2. 
   Are facts adjudicative, legislative, or social
   

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  Morgan relevant to Legislative/Social Science; but is Gold Standard and must be met in Adjudicative
  

3. 
   What is the degree of doubt surrounding fact
   

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  The Morgan Test: Courts may take JN of facts that are either:
  

1. 
   Notorious: so notorious or generally accepted as not to be subject of debate among reasonable people, or
   

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  ex. Would be unreasonable to say take JN that Johnson Street Bridge is in BC and therefore within Provincial Court jurisdiction
  

2. 
   Readily Verifiable: capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy
   

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  Dictionaries, calendars ex. What day of the week was Xmas that year; probably not Wikipedia though, or Apple Maps which doesn’t function
  
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  Tide-tables or sunrise/sunset charts relevant to drunk driving test might need witness to attest to those, in some cases maybe not
  

Keep Four Concepts Distinct:

1. 
   Privilege: protects confidential info/communication
   
   1. 
      Invoked by holder of the privilege
      
   2. 
      Protected sometimes by others (ex S/C protected by solicitor)
      
2. 
   Disclosure:
   
   1. 
      Crown has to disclose all of their case except that which is irrelevant or privileged Stinchcombe; contents of file not property of Crown but of the public
      
   2. 
      Issues re: privilege and relevance determined by court
      
   3. 
      Info in hands of 3^rd parties – crown not obligated to disclose info in hands of third parties
      
      1. 
         Crown can usually get the info via search warrant [Crown includes police]
         
      2. 
         Accused doesn’t have access to means of forcing disclosure, 3^rd parties have no obligation to turn over info to anyone
         
3. 
   Production:
   
   1. 
      Term describing turning over info/records to accused
      
   2. 
      Requires court order from judge
      
4. 
   Admissibility:
   
   1. 
      Just because there is disclosure from the crown or production by a third party doesn’t mean that the info is admissible, that comes at the end of all this
      

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