Witness Testimony a.k.a. oral or verbal evidence a.k.a. viva voce (“in live voice”)
Documentary Evidence i.e. documents, records, writings or any statement/thought/idea that has been recoded, includes x-rays, computer records, photographs, videotapes, a candlestick with an engraving on it (offered as evidence for the writing)
Real Evidence i.e. things e.g. alleged murder weapon (the bloody candlestick), body fluid samples, pieces of fiber (note the DNA report on the fiber would be documentary evidence)
Demonstrations to help the court visualize something, such as a witness getting out of box and showing how they moved when attacked, or a scale model of an accident location. Will often be on video, to avoid possibility of demonstration going wrong e.g. model not working in court.
Real Evidence
This is the point where the judge screens out evidence that is so unreliable it’s not worth spending any time on i.e. listening to or looking at, and would only confuse/prejudice the case
Depends on form of the offer (whereas all following tests depend on content of the offer, referred to by Wigmore as “tenor” of the offer):
Witnesses must be competent (see below)
Real evidence must be identified & continuity:
As with documents (see above), three ways to identify: by admission, direct evidence (e.g. police officer says “yes, that’s the knife we pulled out of the deceased”) or circumstantial evidence (i.e. anything that invites an inference connecting the thing with what it is purported to be)
As well, continuity must be established i.e. must have kept track of the thing and kept it secure (e.g. from being tampered with) at all times, from when it was first collected, through testing/storage, to presentation at trial. This may involve calling a number of witnesses to verify this e.g. police officer who first collected it, person who stored it, person who tested it, etc. Courts are strict on this e.g. in the case of drugs
R. v. Parsons (1977) (Ont. C.A.)
Getting past the judge with real evidence is pretty easy (i.e. satisfying the judge that there is sufficient evidence to admit)
Determination of whether statutory conditions precedent have been fulfilled rests exclusively with the trial judge and are properly determined in a voir dire
On appeal, the court was critical of the extent of the voir dire conducted by the trial judge because it tended to usurp the role of the jury.
R. v. MacPherson (2005) (BCSC)
The continuity of possession of the substance from the accused to the law enforcement officer to the analyst are crucial.
However, proof of continuity is not a legal requirement and gaps in continuity are not fatal to the Crown’s case unless they raise a reasonable doubt about the exhibit’s integrity.
Demonstrative Evidence
Distinction between real evidence and demonstrative evidence:
Real evidence consists of physical objects that form the evidence itself (e.g. bloody shirt, narcotics, gun)
Threshold: must be authenticated
Demonstrative evidence consists of demonstrations, charts, models and other tools that assist the trier in understanding the evidence
Threshold: judge must be satisfied that the demonstration will genuinely assist the trier of fact and not distort the fact finding.
R. v. Howard and Trudel (1983) (Ont. CA)
Facts: Dispute over the authenticity of footprint evidence. Crown expert witness said the footprints came from the accused, while the defence expert witness disagreed.
Held:Whether demonstrations (in the court room) are to be permitted is largely at the discretion of the trial judge and appeal courts are reluctant to second guess them on this issue.
In court demonstrations may involve significant confusion and delay, and the trial judge is in the best position to make this judgement
Comment: Court room demonstrations are generally only permitted in rare cases
R. v. Collins (2001) (Ont. CA)
Facts: The Crown led evidence of an out-of-court experiment where a firearms expert fired test shots in the same place where the victim had been shot (accused charged with negligence.”
Held: Evidence was admissible to show what happened when a gun was fired in the way suggested byt the witnesses.
“In a nutshell, experiment evidence, if it is relevant to an issue in the case, should generally be admitted” – subject to the trial judge’s discretion to exclude the evidence where the prejudice that would flow from its admission clearly outweighs is value.
Relevance of the experimental evidence will depend on the degree of similarity between the replication and the original event.
Documents
Documents are the most common form of real evidence
Documents must be authenticated.Three ways to authenticate:
By admission (production) i.e. parties admit i.e. agree that the documents are authentic (typical); ancient documents which have been kept in appropriately secure storage
Through direct evidence i.e. a witness on the stand says “yes, that’s the contract”, or “yes, that’s the letter I wrote”.
Through circumstantial evidence i.e. any evidence that implies a reasonable inference that the document is minimally reliable i.e. that suggests it is what it purports to be
Note opponent party may still dispute it’s authenticity, but just need something to get it in at this stage, and once admitted, other evidence (e.g. handwriting experts, fingerprints, etc.) can be admitted so that trier of fact can weigh the competing evidence to make final determination of authenticity
With photographs/videotapes best to run them by the judge before showing them if they have any potential to be prejudicial (e.g. gruesome) to avoid chance of mis-trial. Note also Canadian judges generally do not like editing/slowing down videos due to potential to mislead
Best Evidence Rule
Although the best evidence rule (essentially that the best evidence should always be provided) used to be one of the most fundamental laws of evidence, it now only applies to documents Best Evidence Rule = requires that when the terms of a document are material, proof of the terms of the document must be by production of the original.
However, secondary evidence may be introduced if the proponent can satisfy the court that original is lost or destroyed or is the possession of another and cannot be obtained.
R. v. Controni (1977) (Ont. CA)
The only remaining instance of the best evidence rule is where the original document is available in your hands, you must produce it (i.e. you cannot give secondary evidence by producing a copy instead).
Nowadays, we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility.
Aboriginal Oral Histories
Delgamuukw v. BC (1997) (SCC)
Issue: Whether the trial judge had erred in refusing to admit or give independent weight to oral histories submitted by the aboriginal appellants.
In the Aboriginal tradition the purpose of repeating orals accounts from the past is broader than the role of written histories in Western society.
Oral histories may be difficult to admit because they are woven with history, legend, politics and moral obligations, which interferes with the determination of historical truth
As out of court statements passed through generations, they also tend to fall afoul of the hearsay rule.
The law of evidence must be adapted in order that this type of evidence can be accommodated and placed on equal footing with other types of historical evidence.
Since most aboriginal societies do not keep written records, a failure to do so would impose an impossible burden of proof on aboriginal peoples and trivialize their rights.
Mitchell v. Minister of National Revenue (2001) (SCC)
Although the majority in Delgamuukw ruled that the rules of evidence must be adapted to accommodate oral histories, they did not mandate blanket admissibility of such evidence or the weight it should be accorded – must be determined on a case by case basis.
Aboriginal oral histories must meet the test of usefulness on two grounds:
Must offer evidence of ancestral practices and their significance that cannot be obtained through any other grounds.
Evidence must be reliable – but must avoid “facile assumption based on Eurocentric traditions”
