Evidence outline
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EVIDENCE OUTLINE: LAW 309 JUK FALL 2012 EVIDENCE Basics 2 The Fundamental Rule 2 Sources of Evidence Law 2 Burden and Quantum of Proof 2 Civil Proceedings: 3 Criminal Proceedings: 3 WITNESSES: COMPETENCY AND COMPELLABILITY 5 The Oath 5 Spousal Competency 6 Competency of Children/Mental Incompetents 7 The Accused: Compellability, Silence or Failure to Testify 8 Rules in CEA, Charter 9 RELEVANCE/MATERIALITY and PROBATIVE VALUE/PREJUDICIAL EFFECT 9 Relevance and Materiality 9 Probative Value and Prejudicial Effect 12 Prejudicial Effect in Sexual Offences Seaboyer 12 Intrinsic Exclusionary Rules 17 HEARSAY 17 The Hearsay Analysis 17 Testimonial Factors Baldree, McCormick text 17 Primary Criteria for Admissibility (Wigmore’s Ordering Principles) 18 Non-Hearsay Words 18 Implied Assertions and Hearsay by Conduct 18 Traditional Exceptions to Hearsay Rule 19 1. Party Admissions Exception 19 2. Res Gestae, Spontaneous Utterances, & Dying Declarations 21 3. Statements Against Pecuniary and Penal Interest 22 4. Business Records (Declarations in Course of Duty) 23 5. Testimony in Prior Judicial Proceedings
6. Prior Criminal Convictions 25 7. Statements Concerning Bodily and Mental Condition 25 8. Statements of Intention 25 Principled Approach to Hearsay 26 R v. Post Principled Approach Summary 27 OPINION EVIDENCE 31 The General Exclusionary Rule 31 Lay Opinion Exception
Expert Opinion Exception 32 The Mohan test for admitting expert opinion evidence 32 Essential Features of New Expert Rules 33 CREDIBILITY – Goes to “witnesses”, though could be classed as exclusionary rule 35 Credibility and Reliability 35 Assessing Credibility and Demeanour 35 Examination of a Witness 36 Refreshing and Recording Memory 37 Assessing the Credibility of Child Witnesses R v. W(R), R v. B(G) 38 Supporting Your Witnesses’ Credibility 38 General Rule Against Oath-Helping 38 Exceptions: 1. Expert evidence 38 2. Accused’s reputation for veracity 39 3. Prior consistent statements 39 4. Narrative/rebuttal 40 5. Statutory Exception to Rule Against Oath Helping 40 6. Recent Complaint/Fabrication in Sexual Assault Cases 40 Impeaching Credibility Other Side’s Witness 41 1. Expert Evidence 41 2. Witness’s Bad Reputation for Veracity (Truthfulness) 41 3. Prior Inconsistent Statements: Other party’s witness 42 4. Prior Conviction 42 5. Bias or corruption 43 6. Direct Examination 43 7. Cross-Examination 44 Collateral Facts Bar – Exclusionary Rule Phipson (Adopted by SCC) 45 Other Credibility Issues 47 1. Impeaching Own witness 47 Adverse Witness: 47 2. Corroboration 48 3. Accused as Witness (see above) 49 CHARACTER EVIDENCE 50 Character Evidence and the Accused 50 Putting Accused’s Character in Issue 51 Character of 3rd Parties and Victims 54 Character of victims in sexual assault cases: 54 Character of victims in self-defence: 55 Similar Fact Evidence Rule & Character 56 Character and SFE in civil cases 60 PRIVILEGE (exclusionary rule) 60 Class Privilege 60 Solicitor-Client Privilege 60 Exceptions to Solicitor-Client Privilege: Criminal Purpose, Public Safety, Innocence at Stake 61 Litigation Privilege 63 Marital Privilege 64 Settlement Negotiation Privilege “Without Prejudice” 64 Informer Privilege 65 Case-By-Case Privilege 66 Religious Communications Privilege 66 Journalistic Privilege 66 Psychiatric Records Privilege 67 Public Interest Immunity or “Crown Privilege” 67 s.37 CEA Disclosure and Public Interest 68 s.38-38.16 CEA National Security 68 s.39 CEA Cabinet Secrecy 69 Third Party Privacy: Protecting Privacy Without Privilege 70 O’Connor Disclosure Regime: 71 Mills Regime: 71 Implied Undertakings 72 Privilege Against Self-Incrimination 73 Statements by the Accused 75 The Common Law Confession Rule 75 Person in Authority 76 The Voir Dire 76 Voluntariness Considerations Oickle 76 Right to Silence and Improperly Obtained Evidence 78 s.10(b) Charter: Right to Counsel 78 s.7 Charter: Right to Silence 78 Common Law Right to Silence 80 s.24(2) Charter Exclusion 80 Real and Demonstrative Evidence: Non-Testimonial Means of Proof 82 s.655 Criminal Code Admissions at trial 82 Admissions: BC Civil Rules 83 s.652 Views 83 Admission of Real and Demonstrative Evidence 83 Admission of Documents 84 Photos and Videos 85 Judicial Notice 86 Keep Four Concepts Distinct: 87
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