Evidence outline



Download 0.7 Mb.
Page1/12
Date02.02.2017
Size0.7 Mb.
#15884
  1   2   3   4   5   6   7   8   9   ...   12

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
24

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
31

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







EVIDENCE Basics

The Fundamental Rule


All relevant evidence is admissible unless subject to an exclusionary rule

  • Intrinsic exclusionary rule: probative value outweighed by prejudicial effect

  • Extrinsic exclusionary rule: relevant but there are policy reasons for exclusion (Charter, privilege)


Process for exclusion:

  1. Is the evidence relevant:

    1. Is it factually relevant?

    2. Is it materially/legally relevant? [see page 8 test, show work for relevance if asked admissibility]

  2. Is the evidence admissible on the ground of law or policy

  3. Does the prejudicial effect outweigh its probative value


Objectives of Evidence Law:

1. Search for truth – especially in how we get info from witnesses

2. Ensuring a fair trial

3. Efficiency of trial process

4. Protecting other social values
Admissibility and Weight

Where evidence is admissible, the trier of fact may, but is not required to, accept, believe or draw inferences from any specific piece of evidence – trier of fact determined weight given to evidence




Download 0.7 Mb.

Share with your friends:
  1   2   3   4   5   6   7   8   9   ...   12




The database is protected by copyright ©ininet.org 2022
send message

    Main page