Table of
Contents
Summary Analysis of Evidence Problems
Step One: Is It
Relevant And Probative?
Step Two: Does
An Exception To The General Rule Apply?
Obtained
Contrary to Charter or Quasi -Constitutional Document
Obtained in
Breach of a Confidential Relationship
Of Civil
Settlement Discussions
Step Three:
Prejudice Versus Probative Value?
Probability,
Relevancy and Materiality
Probative Value
and Countervailing Social Values
Probative Value,
Process and Unfair Prejudice:
Evidence Adduced
By An Accused:
Division of Duties
Between Judge and Jury:
Appeals and
Evidentiary Review
Who Bears the
Burden of Proof:
Rebuttable
Presumptions of Law:
Irrebuttable
Presumptions of Law:
Compellability
and the Constitution:
Hearsay Implied
By Assertive Conduct:
Exceptions to
the Hearsay Rule:
Interaction of
Exceptions to Hearsay Rule and Principled Approach:
Out Of Court
Assertions That Are Not Hearsay:
Present
Knowledge and Refreshing Memory:
Exemptions to
the Hearsay Rule
Testimony in
Previous Hearings:
Existing Statement
of Physical, Mental or Emotional State:
Exclusion of
Otherwise Relevant Evidence
Right Against
Self-Incrimination:
Self-Incrimination
and the Charter:
Right to Counsel
and Evidentiary Implications:
Evidence Proven
Collaterally True
The Exclusion
Remedy Generally
Exclusion of
Evidence Under the Charter
Relationship of
s. 24(2) Factors:
Protection of
Confidential Relations
Limitations of
Solicitor-Client Privilege:
Privileges Not
Existing by Class:
Overriding
Exception to Privileges:
Factual Basis of
Expert Testimony:
Opinion Evidence
and Ultimate Issue:
Complainants in
Sexual Offences
Propensity and
Expert Testimony:
Similar Fact
Evidence and Credibility
Character and
Psychiatric Propensity:
Cross-Examining
on Prior Statement:
Polygraphs, Lie
Detectors and Truth Serums:
When is
Secondary Evidence Admissible?
Future of the
Best Evidence Rule
¯
If the evidence
is relevant and probative, it is admissible unless excluded by some other
specific rule.
¯
Even if an
exception applies, he evidence may still be admissible but the relevant details
of the exception must be considered.
¯
The main
exceptions to the general admissibility rule arise if the evidence is:
¯
A statement is
hearsay and, prima facie, inadmissible, if it is
o
An out-of-court
statement,
o
Adduced in Court
o
To prove the
truth of the facts therein.
¯
Evidence, even
though hearsay, may be admissible if it falls within certain well-defined
exceptions or, more generally, if the evidence is necessary and otherwise
unavailable and there is some circumstantial
indicia of trustworthiness. The
specific exceptions include:
o
Testimony in
former proceedings.
o
Admissions
o
Declarations
against interest
o
Business records
o
Past recollection
recorded
o
Res gestae
o
Statements of
physical, mental or emotional state
o
Dying
declarations
o
Official
statements
¯
Opinions are not
admissible evidence unless they are (a) a compendious way for the laity to
testify to a common everyday experience or (b) opinions of someone skilled in a
recognized science or art and necessary for the trier of fact to understand
something otherwise beyond the trierÕs knowledge or understanding.
¯
The State may not
call evidence solely for the purpose of showing an individual is of bad
character and therefore likely guilty of an offence.
¯
However, evidence
may be called to prove guilty (or disprove a claim of good character) which
incidentally shows bad character.
¯
The forbidden
reasoning process is bad character, therefore guilt; where guilt leads to a
conclusion of bad character, no problem arises.
¯
An accused may
call evidence of the accusedÕs general reputation for character in the
community to show the accused is not likely guilty. Where character is so raised, the State may rebut the claim
by cross-examining or calling contrary evidence.
¯
Evidence of bad
character of non-parties may be called if otherwise admissible.
¯
A confession,
that is, (a) any statement made by (b) an accused to (c) a person in authority,
is prima facie inadmissible unless the prosecutor shows it was free and
voluntary.
¯
Evidence obtained
as a result (direct or indirect) of a breach of a Charter right is inadmissible if its admission could bring the
administration of justice into disrepute.
¯
The burden of
showing the breach and the disrepute lies on the party seeking to exclude the
evidence.
¯
Relationship
privilege extends to criminal and civil proceedings.
¯
It applies by
class or on a case by case basis.
¯
If a relationship
is covered by a class, subject to exceptions special to each class, any
commutations within the class are privilege and not admissible.
¯
Classes include
(a) solicitor-client (b) spousal (c) state policy making and (d) informant
identity.
¯
Case by case
privilege is established Wigmore criteria which require that the communication
(a) arose in confidence (b) confidence was essential to the communication (c)
the relationship sought to be protected is valued by society and (d) the harm
caused by the disclosure is greater than the damage to the trial process.
¯
Civil settlement
discussions are privileged and information disclosed therein cannot be used in
evidence at the trial of the dispute the settlement discussion were intended to
resolve.
¯
Even if the
evidence is otherwise admissible, the party opposing such admission can still
argue that the probative value of the evidence is slight (usually an argument
that the evidence is only marginally probative as opposed to relevant) and the
prejudice of such evidence is out of all proportion to its value. The question is would a jury, on seeing
such evidence, decide to convict (acquit etc), regardless of the matters
actually proven?
¯ Evidence only deals with admission of facts
for consideration at trial.
¯
The main purpose
of the rules of evidence is to limit the information put to a judge so they can
make a practical decision in a limited time.
¯ Evidence acts to exclude unnecessary and
irrelevant material.
o
The goal is
accurate, but practical, fact finding.
¯
The rules are
designed to limit the evidence to that which aids the trier of fact in
determining the issue in dispute in a practical and pragmatic manner.
¯ Nothing which is not rationally relevant to
issues in dispute is admissible. Subject to many qualifications, anything that
is rationally relevant to issues in dispute is admissible.
¯
Issues
in Dispute ˆ the questions the court must decide
¯
Relevancy ˆ speaks to the tendency of a fact to establish a proposition.
¯
Materiality ˆ speaks to whether the proposition is an issue before the court.
¯
So, proof the
sofa was poorly built is relevant to prove it is a bad sofa, but since the
quality of the sofa is not an issue for the court, it is immaterial.
¯ If evidence does not relate to an issue in
dispute it will be inadmissible
¯ For a fact to be considered by a court it
must be both
o
Relevant
(the fact tends to prove a proposition) and
o
Material
(the proposition it proves makes a difference to the court).
¯
To be relevant,
all a fact has to do is to render the relevant proposition more probably than it
would be without the fact.
¯
To be logically
relevant, an item of evidence does not have to firmly establish the truth or
falsity of a fact in issue.
¯
The evidence must
simply tend to increase or diminish the probability of the existence of a fact
in issue.
o
Courts do not
like to exclude evidence on the basis that its relevance is low
¯ The law of evidence is premised on a
hearing before a jury and not a judge alone.
o
Juries are
assumed to be quite susceptible to giving undue weight to evidence that is
relevant and material, but only in a marginal way.
o
The clearest
example is a prior criminal conviction.
á
But, unless the
accused testifies this will not be an issue
o
However jury
trials are rare
¯ As a general rule, if the evidence in
question is likely to colour a juryÕs thinking, the court will exclude the
evidence if the prejudicial effect of the evidence outweighs the evidenceÕs
probative value.
o
Prejudice
arises from an irrational weighting of evidence ˆ not from rational weighting of devastating evidence
¯
Evidence that is
otherwise relevant and material is sometimes excluded to protect other social
values.
o
Evidence
discovered in an illegal search is often excluded in this way.
¯
The Canadian
Constitution expressly recognizes that, on occasion, evidence may be excluded
because the negative impact of its admission on society as a whole outweighs
any benefit to accurate fact finding.
o
Section 24(2) of
the Charter: WhereÉevidence obtained
in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded
if it is established that, having regard to the circumstances, the admission of
it in the proceedings would bring the administration of justice into disrepute.
¯ Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair
prejudice.
¯
Evidence ay also
be excluded if it tends to confuse the issues or mislead the jury, or if
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence suggest evidence may be properly excluded.
¯ Probative value is the ÔtendencyÕ of the
evidence to prove a proposition.
¯
Evidence is
unfairly prejudicial if it encourages a decision based on improper reasoning
such as emotion
¯ The probative value of evidence is the
value which the evidence would have if it is believed.
o
Generally,
if evidence has some probative value that evidence is admissible.
o
That said, unfair
prejudice, confusion and waste of time represent countervailing considerations,
which may be a basis for excluding evidence, even if it is probative.
¯
Is there a different
standard to exclude evidence if adduced by an accused?
¯
Technical
rules of evidence may be somewhat relaxed to allow an accused to raise a doubt
of guilt.
¯
The courtÕs
discretion to allow an accused to call evidence that may be, technically,
inadmissible is not intended to allow an accused to evade justice, but rather
to allow justice to be done.
¯
Where the
exclusion of evidence would risk an injustice, or raise a concern for wrongful
conviction, the court has a narrow discretion to allow the evidence to be
adduced.
¯
Evidence presumes
that disputes will be resolved by an adversarial trial and the rules of
evidence are based on that presumption.
¯
There are three
basic participants in an adversarial trial: Plaintiff/Prosecutor,
Defendant/Accused and Judge.
¯
The jury decides
the facts, but the judge decides what those facts then mean in terms of legal
relevance. Matters of law are
determined by the judge and matters of fact by the jury.
¯
The judge, in our
system, does no investigating, conducts no independent review of the facts, and
rules solely on what is put before the court. The judge can only listen to what the parties but before the
court.
¯
Counsel are
limited to honest partisanship.
¯
A lawyer cannot
break the law for a client.
¯
A lawyer may not
intentionally mislead the court, but counsel has no duty to volunteer
information except as required by disclosure requirements.
¯
There is no duty
to highlight the weaknesses in your clientÕs case when materials are disclosed
to the other side.
o
Allowing a party
to testify falsely or relying on that testimony amount to misleading the court.
¯ The major exception to the openly partisan
position of counsel is that of the criminal prosecutor.
o
A
prosecutor has a duty not to in but to ensure justice is done.
o
A prosecutor must
disclose their case to an accused so the accused can make a full answer and
defense.
¯ The prosecutor has an obligation to
disclose everything in the prosecutorÕs possession or control unless it is
o
Clearly
irrelevant
o
Privileged,
or
o
Falls
within the ambit of the personal information provisions of the Criminal Code.
¯
The
fruits of the investigation which are in the possession of the Crown are not
the property of the Crown for use in securing a conviction but the property of
the public to be used to ensure justice is done. In contrast, the defence has no obligation to assist the
prosecution and is entitled to assume a purely adversarial role towards the
prosecution
¯ A judge has two functions at trial.
o
The first, during
the testimony, is to deal with the evidentiary issues and ensure a smooth
trial.
o
The second is the
decision making process after the evidence is adduced.
¯
The right to a
trial before an independent and impartial tribunal is fundamental.
o
Impartiality is
assessed on both a substantive and objective basis.
¯
A writ of
prohibition may issue where an applicant establishes a reasonable apprehension
of bias on the part of the Judge.
¯
A mere
possibility of bias is not sufficient to establish a reasonable apprehension of
bias.
¯ Rather, the likelihood of bias must be real
and substantial.
o
The threshold for
a successful allegation of apprehended bias is high.
o
Bias refers to
anything that may reasonable lead the adjudicator to decide the case on some
basis other than the evidence before the tribunal and the law.
o
Apprehended bias
refers to anything that may lead the informed and reasonable observer to form a
reasonable apprehension that the adjudicator might decide the case on some
basis other than the evidence and the law.
¯
To establish a
reasonable apprehension of bias, the applicant must establish that the
reasonable person, with knowledge of the relevant circumstances, would have a
reasonable apprehension of bias.
¯ This test involves two objective elements:
o
The
person by whom bias is apprehended must be a reasonable person, invested with
full knowledge of the circumstances said to give rise to bias and
o
The
apprehension of bias, itself, must be reasonable and not farfetched or the
product of an overly sensitive mind.
¯
In judge alone
trials, the judge considers the evidence and gives a decision with reasons for
that decision. In such cases the
judge is both the trier of law and the trier of fact.
¯
In jury cases the
judgeÕs role is restricted to instructing the jury on the law, or,
alternatively, to apply the law to facts found by the jury.
¯
The judge must
assist the jury to decide facts but at all times making it clear it is the jury
who is to decide what the facts are.
¯
Except where
there is no evident to support a
proposition, it is for the jury to decide whether a proposition is correct.
¯ In a jury trial, the judge must determine
the admissibility of evidence.
¯
In determining
the admissibility of evidence the judge generally decides questions of law and,
in some cases, preliminary questions of fact.
¯
Thus, the judge
is required to determine preliminary questions of fact relating to the
admission of evidence is in question, such as in exclusionary rules like
hearsay, privilege, or the incompetence of a witness.
¯
By
contrast, generally, the jury determines issues of fact dealing with the weight
and meaning of evidence.
¯
Where two
witnesses give different versions of what happened, the jury decides who to
believe. The judgeÕs role is
limited to deciding if the witness can testify and not as to who is to be
believed.
¯
If there is some
evidence in support of a proposition, even evidence the judge thinks is weak
and unconvincing, the judge must turn the case to the jury because the judge is
not a trier of fact.
o
B contrast, if
there is no evidence supporting a proposition, the judge is to withhold the
case from the jury and decide against that proposition.
¯
The concept that
trial decisions are subject to review is well established in the common law
world.
¯
Trial decisions
can be appealed as of right to a provincial appeal court. Further appeal, to the Supreme Court,
exists but the Court must grant leave to bring the appeal and such leave is
granted very seldom.
¯
The issue of
weight of evidence can be an issue of law.
¯
The judge should
only withdraw a case from the jury is there is no evidence on which a jury
could reasonably find for the party bearing the onus of proof.
¯ Appellate courts exist to rectify errors
made at first instance.
o
Absent
some error by the court of first instance, there is no ground to appeal.
o
The error
necessary to ground an evidence based appeal must come from the trial
¯
Unless a piece of
evidence is objected to it will usually be presumed that the parties are
content that the evidence go to the trier of fact and no appeal based on its
admission will be allowed.
o
This rule is
sometimes waived by appellate courts if the admission of the evidence would
lead to a substantial wrong or miscarriage of justice.
¯ The Court of AppealÕs power to correct
errors of law is significant.
o
Appeal
courts have absolute power to remedy errors of law
o
Errors
of fact, however, are not so easily reviewed
á
Because the
appeal court does not hear witnesses and is not in a position to question facts
¯
Appeal courts
will look to see if the factual finding was clearly unreasonable ˆ if so may overturn
¯ A finding of fact will not be overturned on
appeal absent palpable and overriding error.
¯ Essentially, burden of proof is an
ambiguous term covering two different ideas:
o
The
burden of producing evidence; and
o
The
burden persuasion.
¯
The burden of
producing evidence, also called the burden of going forward, is the
responsibility of providing some evidence that a fact exists.
o
When a party
fails to satisfy this burden, there is insufficient evidence for a reasonable
tie of fact to find a fact is even in issue.
¯ Unless the burden of production is met, a
judge will withdraw the issue from the jury and decide the issue as a matter of
law.
¯
The party with
the burden of producing evidence is the party who must establish a fact.
¯
Once a fact has
been put into issue by some evidence a directed verdict is inappropriate.
¯
The parties try
to persuade the trier of fact.
¯
The trier of fact
considers all the evidence and decides one way or another.
¯
The question of
persuasion takes us to the second meaning of burden of proof, or the level of
persuasion required.
¯
In a criminal
case, the trier of fact must be convinced of guilt to beyond a reasonable
doubt.
¯ A reasonable doubt is not an imaginary or
frivolous doubt.
o
It
must be a doubt based on reason and common sense.
o
Such
doubt must be logically derived from evidence.
¯
The trier of
fact, in determining criminal guilt, does not segregate each fact but rather
looks at the overall picture to see if guilt follows.
¯ In civil cases the level of proof is much
lower ˆ balance of probabilities
o
If the trier of
fact thinks something more likely than not happened, then the trier has passed
the necessary persuasive burden to make a finding of fact.
¯
Some confusion
arises in civil suits for criminal acts ˆ there the burden of persuasion is still, in theory, a
civil standard but the court gives a special scrutiny to the fact to be proven.
o
Allegations of
morally blameworthy acts must be proven to a standard somewhat higher than the
usual civil standard, but not to a standard of moral certainty.
¯
Circumstantial
evidence poses a special problem in criminal cases.
¯
Generally, the
trier of fact is to consider all the evidence together and not one piece of
evidence at a time.
¯ But what if the stateÕs entire case is
circumstantial?
o
The
general rule is that, a purely circumstantial case can succeed only if the
circumstances are consistent with the conclusion of guilt and inconsistent with
any other rational conclusion.
¯
From case law it
is clear that the decision whether every possible explanation other than guilt
is excluded in a circumstantial case is a matter for the jury to decide
¯ It is the plaintiff or the prosecutor who
bears the burden of proving their case.
o
That said, on
specific issues, the defendant or accused may have the burden of producing
evidence.
o The defendant or accused has the burden of
producing evidence for affirmative defenses including pleas of confession or
avoidance.
á
For example, if
self-defense is pleaded, the defendant has the burden of producing enough
evidence to show self-defense could apply.
o
So, in a criminal
case, all an accused need do to raise a defense is adduce any evidence upon
which a reasonable tier of fact could conclude the defense succeeds.
o
The persuasive
burden remains with the prosecution ˆ the accused does not have to do more than raise a
doubt.
¯ In a civil case the same rule applies, but
since persuasion is only to a balance of probabilities, raising doubt is not
enough and an affirmative defense needs to be
established to a balance of probabilities.
¯
The burden of
persuasion is the responsibility of persuading a trier of fact that some fact
actually is true.
¯
This is the
burden to beyond reasonable doubt in criminal and to a balance of probability
in civil cases.
¯
A
presumption is a reasoning process whereby, to some degree, proof of one fact
is taken to be evidence of another fact.
o
Example: If you
show that a person is an adult, it is assumed that they are also legally
competent.
o
Such a
presumption of fact can be disproved if evidence is brought to show the
contrary, but without evidence to rebut the presumption, it is assumed to be
true.
¯ Such presumptions are not prescribed by law
but rather arise from common sense.
o
For example, if
someone has a driverÕs license, it is presumed that they can drive.
¯ Such presumptions are prescribed by law but
not conclusive if there is evidence to the contrary.
o
For example,
living off the avail of prostitution.
¯ These presumptions are prescribed by law and
conclusive as to some issue.
o
For example,
having a blood alcohol level above a certain level if proof of impairment, and
no evidence brought to the contrary can rebut this presumption.
¯ Judicial notice is the cognizance taken by
the court itself of certain matters which are so notorious, or clearly
established, that evidence of their existence is deemed unnecessary.
o
This fund of
information changes and develops over time.
¯ A court may take judicial notice only of
facts that are either:
o
So
notorious or generally accepted as not to be the subject of debate among
reasonable people; or
o
Capable
of immediate and accurate demonstration by use of readily accessible sources of
indisputable accuracy.
¯
The trier of fact
will take judicial notice of such facts are generally known in the community
and which are not capable of dispute among reasonable people.
¯
Judicial notice
is the acceptance of a fact as true without the introduction of evidence of
that fact. Once a fact is taken
judicial notice of, in Canada it is incontestable.
¯
The concept of
judicial notice can lead to problems if it is to widely extended.
¯
Just because a
view is widely held in a community and not disputed among reasonable members
thereof does not mean it is correct.
¯
As a general
rule, evidence in a trial is given by either the testimony of a witness telling
the court what happened or the court itself inspecting physical evidence.
¯
The distinction
is important because a witnessÕs testimony suffers from the defects of faulty
perception, memory and bias.
¯
Real evidence,
physical evidence, may be misinterpreted, misunderstood or given too much
weight, but it will not suffer from being translated through anotherÕs
experience.
¯ For a court to consider real evidence, some
authentification of the evidence is necessary.
o
Authentification
is generally accomplished by testimony of a witness so witness testimony is
usually needed even in a case of real evidence.
o
The
witness must give testimony that the real evidence is, in fact, the item
actually in dispute.
¯
Absent the
authenticating witness, the court has nothing.
¯ Witnesses, unlike real evidence, must
communicate to the court what they perceived.
¯ Witnesses must be:
o
Able
to perceive an event.
o
Able
to understand and remember the event in a coherent fashion
o
Able
to relate that understanding and memory to the court.
¯
Errors in the
perception and recitation can come in at all stages.
¯
Nevertheless, in
spite of all its limitations, testimony of witnesses is the most practical way
to get facts before the court.
¯ Competence is the legal ability to give
testimony court.
¯
The determination
of who is, or is not, competent, is a legal matter decided by a judge.
¯
In practice,
except for children, competence rarely causes a problem ˆ Adults are, until shown otherwise, presumed to be
competent.
¯ The exceptions for adults are:
o
Spouses of
criminal accused, who are not competent to testify for the prosecution (except
in specific cases of spousal or child abuse.
o
Criminal accused,
who are not competent to testify for the prosecution.
¯
At one time the
ability, or lack of ability, to swear an oath was a significant issue.
¯
In practice, no
one is ever challenged on taking an oath.
¯ To use an affirmation it is sufficient to
say ÔI prefer to affirm.Õ
o
If children are
mature enough to understand to the solemnity of giving testimony under oath or
affirmation, they can give sworn evidence.
o
If a child, or
indeed an adult, cannot understand the meaning of testifying under oath or
affirmation, they may give evidence on promising to tell the truth.
o
The
situation of unsworn but accepted testimony is rare and is contrary to the
general rule that evidence must be given under oath ˆ such testimony is admissible only by statutory amendment to common
law.
¯
In order to
testify upon promising to tell the truth, the witness must understand what a
promise is and the importance of keeping it.
¯
Once allowed,
evidence of a witness testifying on promising to tell the truth is to be
weighed in the same fashion as evidence given under oath or affirmation.
¯ The ability to communicate is also required
as part of competence.
o
Witness
must be able, at trial, to adequately relate the events testified about to the
trier of fact.
¯ Competence presumes an ability to perceive
the events testified about at the time of their occurrence.
o
Even
if a person is able to relate testimony at the time of trial, they cannot
testify if, at the time of the incident, they were unable, through disease,
drug or extreme youth, to perceive the incident.
o
Because without
the ability to perceive the incident a witnessÕs testimony is irrelevant
¯
The inability of
a criminal accused, or their spouse, to testify in favour of the Crown reflects
a deep seated societal opposition to compulsory testimony.
¯
Where
intra-family crimes occur the accusedÕs spouse is competent.
¯
The common law
compellability of a spouse against an accused includes, broadly speaking,
offences against the souse, or children, affecting their person, health or
liberty.
¯ Competence of a witness is distinct from
belief in that witnessÕ testimony.
o
A witness may be
accepted as competent and then be totally disbelieved.
¯
Accordingly, the
level of proof needed to find a witness competent is limited to balance of
probability.
¯ A compellable witness is a witness that can
be force to give testimony.
o
Specifically, a
witness is compellable if, upon receiving a subpoena, that witness will be
arrested and brought to court if the witness fails to attend at court and
testify.
¯
Subject to
constitutional considerations, all competent witnesses are compellable except
heads of state, foreign ambassadors and their direct staff, and judges.
¯ As a general rule judges cannot be
required to testify regarding their reasons for a decision.
o
They
are, however, competent and compellable witnesses regarding matters occurring
during trial, but collateral to the trial (i.e. an incident having no bearing
whatsoever of the trial or its process).
o
Case example
– Thanet – riot in the courtroom ˆ judge could testify about the riot and what they saw
¯
Administrative or
chambers matters occurring during the course of a trial which are related to
trial are not incidental and judges cannot be compelled to give testimony
regarding those administrative or chambers matters.
¯ As a fundamental constitutional principle a
person cannot be required to give testimony against themselves in a criminal
proceeding.
¯
An accused is
compellable in a parallel criminal proceeding against a co-accused unless it is
established that the predominant purpose in compelling the testimony of the
accused is incrimination of the accused.
¯ There is a two stage test used to determine
if a witness is compellable:
o
First,
the court must consider the importance to the state of obtaining compelled
testimony from the witness ˆ if court thinks it is to get evidence from
the witness to use against themselves s.7 applies
o
If
the court is of the view that there is a significant public purpose in their
testifying the court must balance the right of the witness/accused against the
interest of the state in receiving the compelled testimony, in way that insures
that the Charter is upheld.
¤
The witness will
not be compellable if he can show that his right to a fair trial will be
jeopardized even if he is protected from any derivative use of his prior
testimony against him at his trial.
o The two-stage test is strictly applied and
it is a rare case where a person will be found to be non-compellable as a
result of constitutional considerations.
¯
The order of
examination of witnesses is direct examination, cross-examination and
re-examination.
¯ It is proper to speak to as many witnesses
as possible to find out what they will say.
o
The only
significant exception is speaking directly to a party represented by a lawyer
other than yourself; represented parties can only be dealt with through
counsel.
¯
The lawyer has a
duty to speak to witnesses to determine what they will say, refresh their
recollection as to dates and details by presenting them with any documents to
be used, and to acquaint him with the sequence of questions so that the truth
may be established in an orderly fashion and without confusion which may
through doubt on it.
¯ The limitation is that in witness
preparation the counsel may not prepare away inconvenient facts.
¯
Counsel may
prepare a witness for trial and rehearse the anticipated evidence, provided
that the testimony of the witness is not altered or skewed in some way.
¯
Direct
examination is the examination by a party of witnesses called to testify by
that party.
¯ Subject to certain exceptions leading
questions are not allowed in direct examination.
o
Counsel may not
lead their witnesses on material issues but should lead them on introductory or
non-contentious matters. (R v Rose)
¯ The exceptions to the leading question rule
are hostile witnesses and witnesses who are, for some reason, unable to testify
coherently except in response to leading questions.
¯
If the judge
declares a witness hostile, counsel may lead the witness on all points.
o
A witness is not
hostile merely because the witnessÕ testimony is uncertain
¯
Use leading questions
in cross-examination.
¯ The purpose of cross-examination is:
o
To
destroy or weaken the fore of the witnessÕs testimony in direct examination;
o
To
elicit something favorable; and
o
To
discredit the witness.
¯ In Canada there is no limit on the scope of
cross-examination
o
May ask the
witness anything ˆ not limited to asking questions relating to the direct examination
¯ Unless counsel cross-examines a witness on a
topic the counsel may be deemed to accept the witnessÕ story.
¯
If counsel does
not do this they may be precluded from putting their case at all
o
Need to put forth
their case ˆ especially if wish to contradict evidence of a witness
¯
The witness is
put questions which are always leading and usually denied.
o
But if you donÕt
do it you may not be able to present your case appropriately at all
¯
A
party wishing to impeach the credibility of a witness must ordinarily put the
contradictory material to the witness in order to give the witness an
opportunity to explain it.
¯
Purpose of
re-examination is not to ask new questions but rather to seek clarification of
matters raised in cross.
¯ The right to re-examine is limited to
dealing with matters arising in cross-examination.
o
Should object to
the introduction of new materials in any re-examination
¯ Hearsay evidence is
o
Any
out of court assertion
o
Repeated
in court
o
To
prove the truth of that assertion.
¯
Evidence of a
statement made to a witness by a person who is not himself called as a witness
may or may not be hearsay.
¯ It is hearsay and inadmissible when the
object of the evidence is to establish the truth of what is contained in the
statement.
¯ It is not hearsay and is admissible when it
is proposed to establish by the evidence, not the truth of the statement but
the fact it was made.
¯ Why is hearsay such a problem
o
Because
it is second hand information and nearly impossible to cross-examine on b/c the
person who made the assertion is not in court to be questioned on it ˆ or to have their credibility assessed
¯
Hearsay evidence
is, subject to many exceptions, generally rejected.
¯
Definition stated
above is the traditional definition of hearsay.
¯
More recent
definitions of hearsay have focused upon the precise evidentiary concerns
underlying the exclusionary rule, namely the absence of an opportunity for
meaningful, contemporaneous cross-examination of the out-of-court declarant in
court under oath or solemn affirmation, regarding the truth of the specific
statement or expressive conduct that is south to be admitted as proof of its
contents.
¯
Hearsay may be
considered to be any intentional assertion made outside of a judicial hearing
repeated in the hearing for the truth of the contents of the assertion.
¯
Only
assertions made to communicate facts amount to hearsay ˆ a statement made for other reasons is not
¯
The
implementation of our hearsay definition can be seen in the issue of conduct
that implies an assertion. Does
such conduct create a hearsay problem?
¯
If
a statement sought to be adduced by way of hearsay evidence is made under
circumstances that substantially negate the possibility that the declarant was
untruthful or mistaken, the hearsay evidence may be said to be reliable.
o
The implied
assertions of out-of-court declarations do not raise the issue of a duplicitous
or deceived witness and so hearsay and its attendant dangers are not present.
¯
Canadian courts
treat out implied assertions or assertive conduct as not being hearsay.
o
Implied
assertions are not hearsay; the concern with deceived witnesses is not present
¯ Starting with the decision in R. v. Khan
and continuing through to Starr, the Supreme Court has adopted what it calls a
principled approach to hearsay evidence and exceptions to the general
exclusionary rule.
o
Under
this approach, evidence may be admitted, though hearsay, if it is necessary and
reliable.
o
The approach
recognizes that the dangers hearsay evidence attracts are not always present
and, in specific cases, hearsay evidence is just as good a basis for judicial
decision-making as sworn and cross-examined testimony.
¯
Broadly speaking,
and prior to the Khan case, the
analysis of hearsay in Canadian courts was relatively mechanical.
o
A determination
would be made as to whether or not evidence was hearsay and, if it was, further
consideration would be made as to whether the evidence is admissible, though
hearsay, pursuant to a specific previously existing exception to the general
exclusionary rule.
o
These exceptions
are numerous and do not always fall within the obvious ambit of the principles
of necessity and reliability.
¯
The old approach
followed precedent alone ~ the function of cross-examination or value of the
hearsay itself was not considered.
¯ The decision in Khan began a change in this
approach.
o
Specifically,
following Khan, evidence which would
otherwise be inadmissible as hearsay could be admitted even if it did not fall
within any previously existing hearsay exception provided only the evidence was
necessary and reliable.
o
Following
Khan, the Supreme Court in Smith explicitly says the principle underlying the
rule and its exceptions are necessity and reliability.
o
The case law
following Smith, up to and including Starr expands on this principled
approach.
¯
A difficulty that
has arisen from the determination that hearsay exceptions should be dealt with
in the principled approach arises from the impact of the exceptions to the
exclusionary rule.
o
Are the
exceptions to the exclusionary rule to be followed, as traditionally done, and
then the principled approach applied only if no previously existing exception
applies?
¤
If this is so,
then the principled approach expands the scope of admissible evidence but does
not restrict the admission of hearsay evidence to that which is necessary and
reliable.
á
It is possible
that evidence which is not necessary or reliable might fall within an exception
to the hearsay rule but still be admissible.
o
Eliminating the
traditional exceptions and holding that hearsay is generally inadmissible save
when some overall test of necessity and reliability has been met could lead to
greatly expanded inquiry at trial, lengthening trial and considerable
unpredictability in the trial process.
¯ Evidence which is admissible under a
hearsay exemption may not be admissible if it does not meet the twin test of
necessity and reliability.
¯ Hearsay evidence may only be admitted if
it is necessary and reliable, and the traditional exceptions should be
interpreted in a manner consistent with this requirement.
¯ In a majority of cases the presence or
absence of a traditional exception would be determinative of admissibility
¯ Hearsay evidence may only be admitted if
it is necessary and reliable
¯ May have evidence that falls under one of
the exceptions being excluded because it is not necessary and reliable
o
But
will be unusual cases and the party challenging the admission of evidence that
would fall within one of the traditional exceptions would have the burden of
proving its inadmissibility
¯
Under this analysis,
any hearsay evidence, otherwise admissible under an exception to the hearsay
rule, can be challenged as being neither necessary nor reliable.
o
The exceptions,
although being general guidelines for admissibility, would cease therefore to
governs and, particularly where evidence was important to the determination of
a case, a thorough trial within a trial would have to be conducted on the
issues of necessity and reliability, regardless of the existence of an
exception.
¯
The onus of
proving that evidence is necessary and reliable will change depending on
whether an exception does or does not exist
¯
The principled
approach attempts to introduce some flexibility into the hearsay rule
¯
The case law
since Starr has, in general, followed
the reasoning in Starr without
lengthy analysis.
¯ Starr results in the following
considerations
o
Hearsay
evidence is presumptively inadmissible unless it falls under an exception to
the hearsay rule
¤
The traditional
exceptions to the hearsay rule remain in place
o
A
hearsay exception can be challenged to determine whether it is supported by
indicia of necessity and reliability, required by the principled approach
¤
The exception can
be modified as necessary to bring it into compliance
o
In
rare cases evidence falling within an existing exception may be excluded
because the indicia of necessity and reliability are lacking in the particular
circumstance
o
If
hearsay evidence does not fall under a hearsay exception it may still be
admitted if indicia of reliability and necessity are established on a voir dire
¯ Unless the statement is being repeated to
prove the truth of its contents, there is no hearsay issue.
o
Thus, if a
statement is repeated in court for a reason other than its truth, the statement
is not hearsay.
¯ If a witness does not recall the events
they are called upon to give evidence concerning, there is nothing wrong with
allowing them to review notes to refresh their memory.
o
If the memory is
not refreshed, and all the witness can do is read the notes to the courts,
there is a hearsay problem - the testimony is then hearsay and excluded unless
it falls within one of the exceptions to the hearsay rule.
¯
Merely because
the hearsay statement is being repeated by its initial author does nothing to
alter the fact that the statement is hearsay.
¯ Prior to R. v Starr, the analysis of
hearsay proceeded in three stages.
o Was there a hearsay issue?
o If so, did a traditional exception to the
hearsay rule apply?
o If not, could the evidence be admitted
anyway, on the basis the evidence was both necessary and reliable?
¯ This analysis was changed in the Starr
decision. Now the analysis is:
o Is there a hearsay issue?
o Does a traditional exception apply?
o If a traditional exception applies, can
the party opposing admission show that the evidence is, nevertheless, not
necessary and reliable?
¤
If
a traditional exception does not apply, can the party seeking admission show
that the evidence is both necessary and reliable?
¯ The traditional exceptions remain central
to the admission of hearsay evidence.
¯
The traditional
exceptions to the hearsay rule themselves are numerous and not always
consistent.
¯
The exceptions
usually apply where there is good reason to believe the hearsay evidence is
particularly likely to be accurate or correct.
¯ Broadly put, most of the exceptions can be
explained on the basis of two elements, known as the Wigmore Criteria:
o
The
evidence is relevant, material and important but cannot be adduced except by
hearsay; and
o
There
is some circumstantial indicia of trustworthiness that suggests the hearsay is
believable.
¯
Reducing the
hearsay exceptions to a uniform test of reliability and necessity simplifies
matters enormously and in the long term simplicity usually pushes out
complexity
¯
However the
traditional exceptions are seemingly applied fairly mechanically and necessity
and reliability are considered only where an exception is unavailable
¯ Where a witness has given his testimony
under oath in a judicial proceeding, in which the adverse litigant had the
power to cross-examine, the testimony so given will, if the witness himself
cannot be called, be admitted in any subsequent sit between the same parties,
or those claiming under them, provided it elate to the same subject or
substantially involve the same material questions.
¯
The key to this
exception to the hearsay is that the evidence deals with the same issue in the
previous and current litigation, cross-examination was available at the first
hearing, and the witness examined is unavailable through death, illness, mental
instability or just cannot be found even tough reasonable attempts to locate
the witness have been made.
¯
A similar statutory
provision exists under the Criminal Code
ˆ s.715
¯ As a general rule, anything a party says can
be used in evidence by the opposite party.
o
This is an
extremely important and broad exception to the hearsay rule
¯
No issue of
unavailability, circumstantial guarantees of trustworthiness or anything
similar is required for this exception to the hearsay rule to apply ˆ if one party said it, wrote it or in any way
indicated it a party opposite can use it.
¯ The admissions exception to the hearsay
rule is limited in several aspects:
o
An
admission is evidence only with respect to the party making the admission.
¤
Where there are
two defendants and one makes an admission, the plaintiff may use the statement
in the plaintiffÕs case against the defendant making the admission and not the
other.
á
The case against
the co-defendant must be made out some other way.
o
Silence
may be used as an admission, but only where silence necessarily implies an
admission.
¤
A person may be
taken to have adopted an admission where, based on conduct or silence when
confronted with accusations, the person is seen as adopting the truth of the
accusation.
¤
Admission from
silence will be implied only if silence inescapably implies that admission.
á
As a practical
matter, admissions from silence will rarely be found.
á
Do not apply in
criminal cases, as silence is a right.
o But R v Singh
o
Admissions,
particularly by businesses, may be also be made by agents or employees.
¤
A statement by an
employee or agent within the scope of their employment or agency may be
admitted as an admission.
á
Will depend on
the personÕs position and authority ˆ e.g. a bookkeeper making a statement about financial
records would be admissible, but not the same statement by a receptionist
¯
The statement
against interest exception to hearsay rule is often confused with the admission
exception.
¯ The statement against interest exception
differs from the admission exception in that it applies to anyone and can be
used to adduce, for proof of its truth, any out-of-court statement if that
statement was Òagainst interestÓ and the declarant is unavailable.
o
The admission
exception applies only to parties.
¯ A statement against interest is a statement
that, at the time it was made, was so contrary to the declarantÕs interest that
a reasonable person would not have made the statement if it were not true.
¯ Statement can be against either financial
or penal interest but it must be to the declarantÕs immediate prejudice.
o
Further,
the statement must be wholly against the declarantÕs interest ˆ a confession to
shoplifting that gives the declarant an alibi for murder will not amount to a
statement against interest.
¯ Four prerequisites to the admission of
hearsay evidence as being against interest:
o
The declarant
must have made a statement of fact within their knowledge
o
The fact was to
the declarantÕs immediate prejudice.
o
The declarant
knew the fact was to their immediate prejudice
o
The prejudice was
against pecuniary, proprietary or penal interest.
¯
Additionally, the
declarant must be unavailable die to death, insanity, illness or other serious
reason.
¯
An
oral or written declaration, by an unavailable person, of a fact that person
knows to be against their immediate pecuniary or penal interest is admissible,
though hearsay, of the facts continued in the declaration.
¯
If the statement
cannot be used to the declarantÕs prejudice, the statement cannot amount to a
declaration against interest.
¯
As a practical
matter, organization generate a great deal of paper much of which is,
effectively, anonymous.
o
E.g. shipping
invoices contain important information that is relied on every day ˆ but unnamed persons create them
¤
Such invoices, if
allowed to prove their contents, are hearsay evidence.
¯ The business records exception is justified
because
o
Such
evidence is generally reliable and
o
It
usually cannot be adduced otherwise.
¯ At common law a business record is
admissible to prove the truth of its contents if:
o
It
was made at or near the time of the matter recorded
o
It
was made by someone with personal knowledge of the matter recorded and whose
position obliged them to record the information and
o
It
was made in the ordinary course of business.
¯
Business records
are admissible as an exception to the hearsay rule if these common law
principles apply
¯ Business records may also be admitted by
statute.
¯ The statutory requirements are less onerous
than the common law prerequisites and it is more common for business records to
be admitted pursuant to statute than common law.
¯ The key differences between the common law
and the statutory exception are that personal knowledge of the facts recorded
is irrelevant under statute, except as to weight
o
Written notice of
the intention to call business records must be given before the evidence is to
be called.
¤
S.35 of the
Ontario Evidence Act, and s.30 of the
Canada Evidence Act
¯ Merely delivering notice of the intention
to call business records and then filing with the court those business records
is not sufficient to allow the use of those documents to prove their
contents.
o
The other
conditions precedent to the use of the documents (the circumstances of creation
and their use as actual business records) must be proven independently.
o
Mere production
of a document is not sufficient to prove the document or its contents.
o
Unless agreed to
someone must testify as to the circumstances of the creation of the business
records for the exception to apply
¯
Generally
speaking, the only time the common law exception is needed is if notice was not
served.
¯ Often a witness at trial has no recollection
of a relevant and material fact, but did make written notes about the fact
earlier.
o
Since
such evidence is, often, necessary and has the reliability of being recorded at
a time when memory was fresh, an exception to the hearsay rule is made for past
recollection recorded.
¯ The Rules for admission are set out in
Meddoui:
o
The
past recollection must have been recorded in some reliable way.
o
At
the time, it must have been sufficiently fresh and vivid to be probably
accurate.
o
The
witness must be able now to assert that the record accurately represented his
knowledge and recollection at the time.
o
The
original record itself must be used, if it is possible.
¯
If the person
whose past recollection is said to be recorded does not acknowledge making the
recording of the recollection, then the exception does not apply.
¯
The res gestae exception to the hearsay
rule can be stated as:
o
A
hearsay statement relating to a starting event or condition that was made while
the declarant was under the stress or excitement caused by the event or
condition is admissible though hearsay.
¯ The statement must be made while the
declarant still feels the shock of the event ˆ if the shock wore off and reflective thought occurred, the
statement will not be admitted.
o
E.g. wife and
husband are in a fight ˆ she made a statement to this effect and shortly thereafter was shot ˆ court admitted it stating that she had no time to
fabricate the statement
¯
At its heart res
gestae relies on the assumption that something said spontaneously and without
time for reflection is likely to be sincere and believed
¯ As a general rule, an otherwise hearsay
statement of the declarantÕs then existing state of mind, emotion, sensation or
physical condition is admissible.
o
The statement
must be of an existing state or condition and a recollection thereof is not
sufficient to be admitted.
¯
Case is the
leading decision on this exception.
o
It was material
to determine if a deceased did or did not go to a place in Kansas ˆ The deceased had written letters saying he intended
to go to Colorado --> This was an intention held at the time the letters
were written and it was sought to adduce these letters to prove intention.
o
The court ruled:
¤
Wherever
the bodily or mental feelings of an individual are material to be proved, the
usual expressions of such feelings are original or competent evidence. Such declarations are regarded as
verbal actions, and are as competent as any other testimony, when relevant to
the issue. Their truth or falsity
is an inquiry for the jury.
¯ An important limitation on this exception
is that statements of existing intention are proof of the intention only of the
declarant and cannot be used to prove the act or intention of any other person.
¯
Statement must
also be of an existing condition ˆ e.g. Òmy head hurtsÓ as opposed to Òmy head hurt
yesterdayÓ
¯
The dying
declaration exception to the hearsay exclusion is rarely seen.
¯ Where a hearsay statement is made by a dying
declarant, who knows death is imminent, and that statement is sought to be
adduced in a criminal proceeding for which the death of the declarant is a
necessary element and the statement relates to the circumstances of death, the
statement is admissible.
¯ Dying declaration exception only applies
where five elements all apply:
o
The
declarant is deceased
o
The
declarant knew of impending death
o
The
statement related to death
o
It
is a criminal case.
o
An
element of the criminal charge is the death of the declarant.
¯
This exception is
generally found in homicide cases ˆfew other offences have death as an essential element
¯ The Evidence Acts provide for the proof of
certain government documents.
o
Thus, s. 31(2) of
the Ontario Evidence Act provides
that entries in books of account of a municipality are admissible as evidence
of the truth of their contents without further proof.
o
This
is a specific statutory exception to the hearsay rule.
o
There is,
however, a broader common law which provides: a written report or record of a
public official is admissible if the official had first hand knowledge of the
reported facts and had a duty to make the record or report.
¯ While normally the official statement
exception to the hearsay rule applies to civil servants, it is not limited to
them.
o
The question is
what role the declarant plays ˆ is it one related to a governmentally sanctioned role dealing with the
public?
¤
If so the declarant
is a public official
¯ Canadian courts now regularly exclude
evidence that is otherwise quite reliable because its admission would offend a
societal norm.
¯
Relevant and
otherwise admissible evidence may be excluded if its prejudicial effect
outweighs its probative value.
o
A trial judge has
discretion to exclude otherwise admissible evidence to avoid an unfair trial
and an appellate court will defer to that discretion.
¯ An accused cannot be compelled to give
testimony against themselves in a criminal trial.
o
This is clear
from both s. 11(c) of the Charter and
s 5(2) of the Canada Evidence Act.
á
Section 11(c) of
the Charter provides: ÒA person charged with an offence has the right not to be
compelled to be a witness in proceedings against that person in respect of the
offence.Ó
á
This provision
includes federal and provincial offences.
¯
The right to not
testify is not a prohibition on testifying
o
An accused can
choose to testify.
o
However, once
testifying, an accused may be cross-examined.
¯ Section 4(6) provides that Òthe failure of a
person charged to testify shall not be made the subject of comment by the judge
or by counsel for the prosecution.Ó
¯
The court may not
comment on the accusedÕs failure to testify but may state the law that the
accused need not testify.
¯ The Charter does not provide a right to
silence.
¯
The right to
silence is deeply ingrained in our legal culture. Surprise therefore it is not included.
¯ The right to silence is described by the
Supreme Court in Chambers:
o
In
Canada the right of a suspect not to say anything to the police is not the
result of a right of no self-incrimination but is merely the exercise by him of
the general right enjoyed in this country by anyone to do whatever one pleases,
saying what one pleases or choosing not to say certain things, unless obliged
to do so otherwise by law. It is
because no law says that a suspect, save in certain circumstances, must say
anything to the police that we say that he has the right to remain silent which
is a positive way of explaining that there is on his part no legal obligation
to do otherwise.
¯
In this case
police kept questioning a suspect despite 18 times saying wanted a lawyer
¯
Did not say
anything directly incriminating but did say things to police that allowed for
inference of guilt
¯
DonÕt have a
right not to be questioned only a right not to answer ˆ anything you do say etc.
¯
SCC said the
right to counsel, right to silence are subsumed into the confession rule
¯
If a statement is
voluntary it automatically defeats the right to silence
¯
ÒThe common law
confessions rule and the privilege against self-incrimination share a common
theme: the right of the individual to choose whether to make a statement to the
authorities or to remain silent, coupled with concern for the repute and
integrity of the judicial system.Ó
¯
ÒThe common law
rules relating to the right to silence suggest that the essence of the right is
the notion that the person whose freedom is placed in question by the judicial
process must be given the choice of whether to speak to the authorities or
not.Ó
¯
Speaking directly
about the trick the police played to get the accused to make the inculpatory
statement the court held ÒThe scope of the right to silence must be defined
broadly enough to preserve for the detained person the right to choose whether
to speak to the authorities or to remain silent, notwithstanding the fact that
he or she is in the superior power of the state. On this view, the scope of the right must extend to exclude
tricks which would effetely deprive the suspect of his choice.
¯ Once an accused says ÔIÕm saying nothing, I
want to see a lawyer,Õ the state has no further right to obtain a statement
from the accused either directly or indirectly (unless after obtaining legal
advice the right to silence is waived.
¯ Unlike the right to silence, the right
against self incrimination is explicitly stated in s.11(c) of the Charter
o
A
person charged with an offence has the right not to be compelled to be a
witness in proceedings against that person in respect of the offence
¯ The right in s. 11(c) of the Charter is
reinforced by s.13 of the Charter, which provides:
o
A
witness who testifies in any proceedings has the right not to have any
incriminating evidence so given used to incriminate that witness in any other
proceedings except in a prosecution for perjury or for giving contradictory
evidence.
¯
Section 13
protects an accused from being forced to testify in a mater in which they are
not accused and having that unwilling testimony used against them in a
subsequent trial.
¯
The accused was
tried twice for murder - in the first trial, later reversed on appeal, the
accused freely testified. During
the second trial the accused did not testify, but his evidence from the first
trial was read into the record over the accusedÕs objection.
¯
Ruling the
evidence from the first trial inadmissible, the court held:
o
ÒAs s. 13
guarantees the right of a person against self-incrimination, rather than the
rights of a witness giving testimony, it inures to an individual only at the
moment an attempt is made to use previous testimony to incriminate its author.Ó
¯
Accordingly,
whether or not the prior testimony was given voluntarily is irrelevant to the
right against self-incrimination.
¯ However, if an accused testified at an
earlier trial, and their subsequent testimony contradicts their previous one,
this prior inconsistent statement can be used in cross-examination.
o
This is because
the prior statement is being used only to shake the present testimony and not
as testimony.
o
Such inconsistent
statements are not proof of their contents but rather merely evidence of the
inconsistency of the witness.
¯
Section 24 of the
Charter states that ÒWhereÉevidence was obtained in a manner that infringed É
this Charter, the evidence shall be excluded if it is established that, having
regard to the circumstances, the admission of it in the proceedings would bring
the administration of justice into dispute.Ó
o
In Collins, the
court determined that the test is could bring the administration of justice
into disrepute, rather than would.
¯ As a general rule, in criminal matters,
confessions to public authorities are admissible only upon proof by the
prosecutor that the confession was obtained freely and without any pressure on
an accused.
o
Issue is that a
statement may be either wrong or brought about in a way that society may not
accept
¯
The rule
regarding confessions is broad enough to encompass any statement whether
inculpatory or not.
o
Even an
apparently exculpatory statement is subject to the voluntaries
requirement.
¯ Not all statement made by person accused
are confessions.
o
Statements made
to people other than authorities are not confessions and even statements made
to authorities are not confessions if at the time of the statement the speaker
was not yet a suspect or accused.
¯ The rule respecting confessions is:
o
A
confession is a statement made by an accused to a person in authority. Such a confession is not admissible in
a prosecution of the accused unless the prosecution proves beyond a reasonable
doubt that the confession was made voluntarily.
¯ For a statement, which may be a confession,
to be admissible it must be made freely and without the accused being coerced.
o
The
question is subjective ~ is this accused making a free and voluntary statement?
o
Thus,
giving the usual warning will do for most adults but not for persons of limited
capacity.
¯
The courts have
been quite clear that an element of voluntaries is that the speaker must have
an operating mind.
¯
Thus, someone
suffering physical shock, drunkenness, or lacking mental capacity cannot make
an admissible confession.
¯ The prosecutor must show beyond reasonable
doubt that the speaker
o
Knew
what they were saying
o
Knew
it could be used against them and
o
Comprehended
the police warning.
¯
Beyond the
operating mind requirement, voluntariness requires the confession was not
obtained by hope of advantage or fear of prejudice.
¯ Before a statement can be said to be free
and voluntary, prosecutor must show, beyond a reasonable doubt, that
o
The
accused is in a clear state of mind
o
The
accused knows the statement may be used in evidence and
o
That
the accused has not been put under any physical or emotional stain so as to
influence their thinking.
¯
For police the
best practice is to videotape all interrogations
¯ A person in authority is anyone an accused
reasonably believes is in a position to influence the prosecution of an
accused.
¯ If the accused reasonably believed the
person had the power to influence the prosecution then the person qualifies
¯ The confession rule does not apply if an
accused makes statements to someone who is factually in authority but whom the
accused does not believe is in authority.
o
Even if an
accused believed someone to be in authority, such belief will not trigger the
confession rule unless the belief is reasonable.
¯ Once the issue of whether the confession
rule applies, the prosecutor must prove, beyond reasonable doubt, that the
confession is admissible. Such
proof is established in a voir dire.
¯
A voir dire is a trial within a trial ˆ in the case of confessions, the voir dire is held to determine whether a confession is voluntary
and, therefore admissible.
¯
The jury is
excluded during the voir dire, and
does not hear the evidence taken during the voir
dire.
¯
The voir dire should be held whenever an issue
of a confession is raised unless the accused quite explicitly waives the need
for one.
o
Silence or lack
of objection is not sufficient as waiver.
¯ The burden of proving a confession is
voluntary rests with the prosecution.
¯
If the accused
wishes, the accused may testify during the voir
dire but in such event the judge may allow the accused to be questioned on
the truth of the statement.
¯ De Clercq. ˆ SCC
held that the truth of a confession might be relevant to its voluntariness
¯
The accused has
to raise the question of whether a confession exists.
o
On the voir dire the accused has the
evidentiary burden of showing there is a valid issue to consider.
á
If that burden is
met, the Crown bears the legal burden of showing to beyond reasonable doubt
that either the recipient of the statement was a person in authority or, if the
recipient was a person in authority, then the statement was free and voluntary.
¯ Why exclude a confession unless it is shown
to be true and voluntary
o
Because
judges may consider such evidence to be frail and suspect and not worthy or
credit
o
Because
of broader social prohibition of benefiting from prosecutorial misconduct
¯
Where a
confession was proven true, until the Charter,
it was admitted ˆ e.g. confess to stealing, police find goods where you indicated they
were ˆ only so much of the
confession as was demonstrated correct was allowed
¯
However, evidence
obtained in violation of the Charter
is to be excluded under the s.24(2) analysis
¯ Evidence obtained as a result of illegal
conduct by the state is not necessarily a breach of constitutional rights,
though this is usually the case.
¯ Except for constitutional breaches,
illegality does not taint admissibility of evidence.
¯
The law regarding
illegally obtained evidence is the same in both civil and criminal cases
o
Though in civil
cases, a party may obtain an injunction barring the use of otherwise
confidential materials obtained by some breach of that confidence
¯ There is a statutory exception to the
principle that illegally obtained evidence is inadmissible.
¯
At present, and
ignoring Charter issues, wiretap evidence is admissible if the limited notice
and disclosure prerequisites are met.
¯ Prosecutor must provide notice of the
intention to adduce the evidence with full particulars of the evidence
¯
The US Supreme
Court found using illegally obtained evidence was akin to forcing someone to
testify against themselves.
¯
Similarly Weeks held that to sanction unlawful
seizers would be to affirm by judicial decision a manifest neglect of the
prohibitions of the Constitution.
¯
Many criticism
have emerges of such rigid exclusion, mostly directed at the concern that minor
police irregulatories could allow serious criminals to go free.
¯
Subsequently,
Canadian courts firmly rejected the exclusion remedy when dealing with the Canadian Bill of Rights.
¯
Section 52 and 24
of the Constitution Act, 1982 are key
to protecting the rights of Canadians and ensuring that the exclusion remedy is
not likewise ignored under the Charter.
¯
Section 52 makes
the Charter a part of the
Constitution. The Charter therefore is superior to, and
overrules, any other law.
¯ Section 24 is more complex and provides:
o
Anyone
whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the circumstances.
o
Where,
in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed
by this Charter, the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute.
¯
Subsection (1) is
a general power to fashion a remedy ˆ for purposes of exclusion of evidence only subsection
(2) is relevant.
¯
Exclusion of
evidence can be made only under s. 24(2); there is no jurisdiction to exclude
evidence under 24(1).
¯ Exclusion of evidence under s. 24(2) of
Charter requires two elements:
o
The
evidence must be obtained in a manner that violated the Charter and;
o
The
admission of the evidence would bring the administration of justice into
disrepute.
¯
The first part of
the test requires that there be some alleged Charter infringement.
¯
Absent a specific
Charter breach, there is no basis to
seek an exclusion under Charter.
¯
Merely raising an
illegality will not trigger the exclusion ˆ only a Charter breach
will suffice.
¯ The exclusion should be based on a practical
consideration of three primary considerations:
o
Would
the admission of the evidence affect the fairness of the trial?
o
How
serious was the Charter breach?
o
What
would the effect of the exclusion be on the repute of the administration of
justice?
¯ Of the three considerations under s. 24(2)
trial fairness is the most significant.
¯
The impact of
admitting constitutionally tainted evidence on trial fairness in the most
important consideration in triggering an exclusion.
¯
Ultimately the
concern in excluding evidence is to ensure the administration of justice is not
brought into disrespect and justice is done.
o
Accordingly trial
fairness, while but one factor, is a critical factor.
¯
The
concept of disrepute necessarily involves some element of community views, and
the determination of disrepute thus requires the judge to refer to what he
conceives to be the views of the community at large. This does not mean that
evidence of the publicÕs perception of the repute of the administration of
justice, which É could be presented in the form of public opinion pollsÉ, will
be determinative of the issue É The Charter is designed to protect the accused
from the majority, so the enforcement of the Charter must not be left to that
majority.
¯
There must be a Charter breach and then the court
focuses on whether the admission of the evidence into the proceedings would
bring the administration of justice into disrepute.
¯ It is unnecessary for the Charter breach to
lead directly to the evidence which brings justice into disrepute for s. 24 of
the Charter to be triggered.
¯
A mere temporal
link, that is breach before evidence, triggers s. 24 of the Charter, unless the breach and evidence
are clearly remote.
¯ Evidence may be allowed if the state
establishes on a balance of probabilities that the evidence would have been
inevitaley obtained regardless of the breach
¯
Also have a
distinction between real and conscriptive evidence
¯ Conscriptive evidence, as it owes its
existence to a Charter breach, will seldom be admissible but non-conscriptive
evidence, if not otherwise excluded, will seldom be excluded if otherwise
obtainable or discoverable.
o
Also
have derivative conscriptive evidence ˆ where real evidence was discovered through participation of the
accused
¯ The party seeking to exclude evidence under
s. 24(2) of the Charter has the burden of demonstrating the need for
exclusion.
¯
The applicant
must make it more probably than not that the admission of the evidence would
bring the administration of justice into disrepute (Collins).
¯ The state has no onus to establish the
admissibility of evidence;
o
However if
evidence is otherwise to be excluded and the state still seeks the evidence to
be admitted as being found inevitably despite the breach, the state must show
that inevitability.
o
Similarly, if the
state wishes to establish a good faith exception to the exclusion, the state
must bear the burden of proof for good faith.
¯
As an exception
to the general rule that relevant and material evidence is admissible, certain
communications, originating in confidence, are excluded from admissible
evidence.
¯
The basis of the
exclusion is purely societal; no issue of relevance is taken.
¯ The confidential communications protected
are of two types: privileged by class and privileged by case.
¯
Those
communications privileged by class include solicitor/client, husband/wife, and
a few others.
o
No investigation
into the impact of disclosure in the specific case is made for class privilege.
¯
By contrast,
regardless of the formal relationship between the parties, case privilege may
apply where a truly confidential relationship of value would be harmed by
disclosure.
¯ Exclusion of evidence based on privilege is limited
fairly strictly by the court.
¯ Communications between a solicitor and
client in a professional capacity are privileged and, subject to a few
exceptions, cannot be disclosed except with the consent of the client.
¯
The fact of the
communication or the name of the client is not usually privileged ˆ only the contents of the communication are
privileged.
o
However, where
the mere fact of consulting a lawyer, standing alone, would implicitly disclose
the nature of the consultation, the fact of the contact is privileged.
¯
Communication
between a lawyer and a third party made in contemplation of litigation are also
privileged, subject to specific disclosure requirements.
o
If a lawyer asks
an expert to make a report, the discussions with the expert and the report they
make are confidential.
¯
The lawyer can
ignore the report if it is unhelpful, as if it never existed.
o
This is generally
considered to be litigation privilege, and is limited to where the
communications were made in the expectation of trial.
¯
Litigation is
more limited than solicitor-client privilege.
¯ Not all discussions involving lawyers are
privileged.
¯ The person consulted must be a lawyer in
the jurisdiction where the consultation occurs.
¯
The lawyerÕs
agents and employees are covered by privilege.
¯
Independent
paralegals are not covered by privilege.
¯ It is only the communication that is
privileged ˆ Material evidence is not.
¯
Privilege does
not apply to advice taken so as to commit a crime (Cox)
¯ The solicitor-client privilege is defeated
by what has been called Ôinnocence at stake.Õ
o R.
v. McClure ˆ the Supreme Court
held that where a lawyer has otherwise privileged information that could assist
an innocent accused, that information cannot be privileged, at least as respects
the innocent accused. ˆ Such
otherwise privileged information cannot be used against the client who had the
communication.
o
The
Ôinnocence at stakeÕ exception applies only when there is no way to put the
innocence to the court except by breaching privilege.
o
Privilege will
not be waived except in the most serious cases.
¯ Litigation privilege only applies when
litigation is pending or at least anticipated.
¯
Litigation
privilege only applies when a dominant substantial purpose of the document is
to instruct counsel or for counselÕs use.
o
Once
the dispute is ended the privilege is over as well
o
If
the document should be created, at least in part, for litigation, the privilege
likely applies.
¯
If litigation
privilege applies, it will not be lost even if the work is shared with third
parties; provided those parties have a common interest with the disclosing
party and that interest is related to the litigation
¯
Litigation
privilege is not a subset of solicitor-client privilege
o
R
v Blank ˆ applies to anyone preparing for litigation
¯ Except for specific sexual or child abuse
offence, a spouse cannot be required to testify for the Crown against their
spouse.
¯
Most Evidence
Acts provide a spousal privilege for communication made during marriage.
¯
For these
privileges to apply the parties must be legally married.
¯ Spouse, however, is able to waive the
privilege
¯ Communications made for the purpose of
governmental policy-making are privileged.
¯ This privilege is not absolute and is
subject to weighing before the court.
¯
Purpose of the
privilege is to allow for free and frank discussion of policy matters at a high
government level
¯ Judges cannot be compelled to disclose their
discussions or reasoning in coming to a decision.
o
This
privilege extends to members of administrative tribunals as well
¯
Jurors are,
because of their judicial role, also, normally, not compellable to testify
about their deliberation.
o
However, where an
issue of juror misconduct is raised, a juror may be called to testify.
¯ Police cannot, except in criminal cases
where needed to demonstrate an accusedÕs innocence, be compelled to disclose an
informantÕs name or identity.
¯ Also need the informant to accede to the
disclosure of their name or identity before it can be disclosed
¯ There are some general principles underlying
all confidential communication privileges which are usually called the Wigmore
Criteria:
o
The
communication must originate in a confidence;
o
This
element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties;
o
The
relation must be one which in the opinion of the community ought to be
sedulously fostered;
o
The
injury that would inure to the relation by the disclosure of the communications
must be greater than the benefit thereby gained for the correct disposal of
litigation.
¯
If a
communication not otherwise covered by a class privilege fits with the Wigmore
Criteria, the court may exclude the communication from evidence.
¯ Privilege will arise on a case-by-case basis
only in very narrow circumstances.
¯
The party seeking
to establish privilege exists must establish by clear evidence each element of
the test
¯
There are many
privileges not existing by class but commonly assumed to be privileged.
o
These include
priest/penitent, doctor/patient, accountant/client.
¯ These communications are, prima facie, not
privileged and are admissible unless it is established, for this case the
Wigmore Criteria apply to exclude the evidence.
¯ The court is generally disinclined to
grant privilege in anything but the most obvious cases.
¯
In general the
concern of the court for the full disclosure will require disclosure of
communications even if that leads to a breach of confidence.
¯ Public policy favors the amicable settlement
of civil disputes without trial.
o
Resultantly, efforts
to settle civil disputes are accorded special treatment so as to foster
settlement.
¯ All discussions and communications, in a
civil context, made for the purpose of resolving a dispute are privileged and
cannot be used in evidence.
¯ For the settlement privilege to apply the
discussions must be designed to lead to settlement ˆ a party cannot put privilege onto letters not intended to lead to
settlement by writing Ôwithout prejudiceÕ
¯ The privilege survives settlement, as
respects third parties ˆ an admission made during settlement cannot
be used by a third party suing a party who settled.
¯
Statements made
during the course of failed negotiations are protected by privilege in
subsequent litigation.
¯ Two conditions must be met for settlement
discussions to remain privileged:
o
A
civil dispute must be ongoing or contemplated; and
o
The
discussions must be intended as confidential, at least as regards the court.
¯ All privileges are subject to being
overridden by the court if the maintenance of the privilege would post a threat
to public safety.
¯
Where serious
harm to an identifiable person exists, privilege is waived, albeit only insofar
as is actually necessary to avoid the danger.
¯ There are three factors to be considered:
o
Is
there a clear risk to an identifiable person or group of persons?
o
Is
there a risk of serious bodily harm or death?
o
Is
the danger imminent.
¯
It must be
emphasized that the public safety exception applies only to future harm -
admissions of post violence, not matter how serious, do not fall within the
exception.
¯
Witnesses are
asked to testify as to what they said, heard, tasted, perceived
themselves. That, n part, is the
basis of the hearsay rule ~ courts want to hear fact, not gossip, and once the
court has the fact then the court can try to work out what those facts mean.
¯
Witnesses are not
called upon to speculate or make conclusions as to what is the meaning of what
they perceived. The determination
of what everything means is the province of the trier or fact.
¯ The rule against opinion evidence:
o
Opinion
evidence, that is conclusions drawn from facts, is inadmissible unless it is
¤
An
opinion of a layperson that is necessary for a cleat understanding of their
evidence, or
¤
An
expertÕs opinion.
¯ LaypersonÕs opinion evidence is proper
where it is rationally based on perception and is needed to understand the
evidence of the witness.
¯
The opinions or
beliefs of witnesses who are not experts are admissible É on grounds of
necessity, more direct and positive evidence being often unavailable.
¯ The key for a lay witness giving an
opinion is that the opinion deals with an everyday thing and the witness will
not be able to give the testimony any other way.
¯
Excluding lay
people, when based on personal experience, serves no purpose and hinders triers
of fact
¯
Typical examples
of acceptable lay opinion include intoxication, handwriting, identification of
persons, speed, temperature and time of day.
¯
The reason expert
testimony is allowed is because there are certain things a judge or jury cannot
reasonably be expected to understand without the guidance of someone skilled in
a recognized field.
¯
An
expertÕs function is to provide the judge and jury with a read-made inference
which the judge and jury, due to the technical nature of the fact, are unable
to formulateÉ An expertÕs opinion is admissible to furnish the Court with
scientific information which is likely to be outside the experience and
knowledge of a judge or jury.
¯ Rule regarding expert testimony:
o If specialized knowledge will assist the
trier of fact to understand the evidence or a fact in issue, a witness
qualified as an expert by knowledge, skill, experience or training may testify
by way of opinion.
o
The
opinions of skilled witnesses are admissible whenever the subject is one upon
which competency to form an opinion can only be acquired by a course of special
study or experience.
¯ An expertÕs opinion is admissible only if it
is needed to allow the trier of fact to make sense of the evidence.
o
Necessity
is the test ˆ merely because expert evidence would be
helpful is not enough.
¯
Expert opinion is
allowed as an exception to the general rule against opinion evidence
o
Because there is
a real risk that the evidence of an expert will be given too much weight by a
jury
¯
The potential
effect of the evidence must not outweigh its value to the trier of fact.
¯ Before admitting expert testimony a court
must consider the following questions:
o
Will
the proposed expert opinion evidence enable the trier of fact to appreciate the
technicalities of a matter in issue? Or
o
Will
it provide information which is likely to be outside the experience of the
trier of facts? Or
o
Is
the trier of fact unlikely to form a correct judgment about a matter in issue
if unassisted by the expert opinion evidence? And
o
Is
the need for the evidence sufficient to overcome its potential prejudicial
effect?
¯ The qualifying of an expert requires proof
that
o
This
person has some special or peculiar knowledge of their subject and
o
The
subject they are expert in is a legitimate area of study.
¯
A topic must have
reached a level of general acceptance as being a valid area of human endeavor
before it can form the basis of expertise for an expert opinion.
o
Before expert
opinion can be accepted, the field in which the expertÕs expertise lies has to
have been generally accepted by the scientific, professional or academic
community as having achieved a threshold level of reliability.
o
Hallmarks
of reliability include
o
Falsifiability,
o
Peer
review and publication,
o
Acceptance
by the relevant academic community,
o
A
known error rate
o
Existence
and maintenance of standards.
¯
Unless there is a
settled, and accepted, expertise, an expertÕs opinion is inadmissible.
¯
Experts are not
qualified generally; a witness is found to be an expert in a specific area and
they are allowed to opine only within their area of expertise.
o
There are also
limitations in the Evidence Acts about the number of expert witnesses ˆ to save time
¯
Experts are
retained by one side or the other
¯
Their evidence is
often slanted to this side as a result
¯
But the expert
must provide independent assistance to the court by being objective and
unbiased in their opinion
¯
Where an expert
does not retain independence their testimony may be rejected
¯
An expert gives
an opinion as to the interpretation of fact ˆ often invariably, experts have no direct knowledge of
the facts they base their opinions on.
¯
In order to determine
if the opinion is of any value, the facts it is based on must be described and
proven.
¯ Accordingly, expert testimony is usually
given by way of a hypothetical question that sets out the fact the expertÕs
opinion is based on.
o
This
allows the trier of fact to determine whether the expertÕs evidence is worth
anything
o
Because
if the opinion is based on facts not accepted by the trier of fact the opinion
is worthless
¯
The factual basis
for an expertÕs opinion sometimes causes a concern for hearsay.
o
Provided
otherwise acceptable, an expertÕs testimony, even if partially based on
unproven hearsay, remain admissible, albeit subject to less weight.
¯ Occasionally expert testimony is objected
to as being directed to the Òultimate issueÓ of the dispute.
o
The
concern is that an expert opinion on the very issue the court is to decide
tends to usurp the role of the court as decision-maker.
á
Such concerns are
not determinative in Canadian law.
o
At most, the
ultimate issue rule amounts to a principle that ought to govern a courtÕs
consideration of an expertÕs opinion.
¯ Evidence of bad character is not admissible
to prove an accused committed a criminal act.
¯ A basic rule (with some exceptions) is that
evidence of a personÕs character may not be introduced to support an inference
that the person acted on a specific occasion in conformity with that character.
o
That said, an
accused may adduce evidence of a community reputation for good character.
o
If an accused
adduces such evidence of god character, the state may rebut it by
cross-examining about incidents in the accusedÕs past.
¯ In responding to evidence of good character
the state may call
o
General
evidence of bad character (although a witnessÕs personal opinion of the
accusedÕs character is inadmissible.)
o
Evidence
of similar acts.
o
Cross-examine
the accused about specific past disreputable acts.
¯ Evidence tending to show the accused in a
somewhat negative light is not, because of that tendency inadmissible
¯
Calling evidence
to dispute good character does not breach the prohibition on seeking to prove
an accused guilty by the use of bad character evidence
¯ The rule excluding such evidence applies
only where the sole purpose of evidence touching on character is to show the
accused is the type of person likely to have committed the offence
¯
An accused may
adduce evidence of good character by calling witnesses, cross-examining Crown
witness on the subject or by giving testimony.
¯
Accused may point
to general reputation or specific incidents.
¯
The Crown, with a
few limited exceptions such as criminal record, may only refer to general
reputation.
¯ There is no limit, other than relevance and
materiality, as to proving character of third parties.
o
Such character
can be proven by reference to specific acts of charity or violence and not only
by general community reputation
¯ But need to be careful because it is a
short step from here to showing the accused is of good character
o
If you do that
then the prosecution can adduce evidence of the accusedÕs bad character
¯
The character of
a victim of crime could be relevant to a claim of self-defence
¯
But there is a
danger that the character evidence of a victim will be misused ˆ is treated carefully by courts
o
However courts
are loathe to limit evidence that is material and relevant even if it is
prejudicial
¯ There is a limit regarding bringing
character evidence against victims of sexual assault.
¯
The Criminal Code
in section 276 provides for the exclusion of evidence of the sexual experience
and history of a victim of sexual assault, unless its probative value is
substantially outweighed by the need to ensure a fair trial.
¯
In addition,
general sexual reputation cannot be used to show a complainant unworthy of
belief.
¯
The purpose of
this protection is to keep the evidence from being used for an improper purpose
¯ If a state of mind or mental capacity is
grossly abnormal, but within a particular field of expertise, an expert may
offer opinion as to whether or not the accused has that mental capacity.
¯ In theory this is not proof of bad
character but rather a psychiatric fact, just as proof of a psychological fact
is admissible.
o
There is a fine
line between a mere disposition for violence (which is not the subject of
expert evidence) and a peculiar psychiatric tendency (which may be the subject
of such evidence).
¯ Expert testimony of an accusedÕs mental
state is proper but only if relevant to an issue other than mere propensity.
o
One
way to look at the evidence is to ask whether it can be properly analogized to
a physiological fact such as whether the killer was left-handed
¤
If
the analogy is close then it is, subject to prejudicial effect, admissible as
expert evidence
¯
There is no
blanket rejection of propensity when its probative value is high
¯
Only where the
probative value is high with the prejudicial effect of propensity be outweighed
¯ In order to prove a case, the
plaintiff/prosecutor must demonstrate the facts alleged and cannot show the
defendant/accused is a bad person and therefore more likely than not to be
liable.
¯ Evidence of similar acts can be admitted,
even though it may incidentally show bad character, if it is otherwise
relevant.
o
You can prove
guilt, and thereby incidentally show bad character; what you cannot do is prove
bad character and thereby prove guilt.
¯ Evidence which tends to show bad character
or a criminal disposition on the part of the accused is admissible if :
o
Relevant
to some other issue beyond disposition or character, or
o
The
probative value outweighs the prejudicial effect.
¯
The concern about
similar facts arises from the perception that the prejudicial effect of
allowing this type of evidence may overwhelm any probative value the evidence
has.
¯ The real question to be asked is whether the
prohibitive value of the evidence sought to be adduced outweighs the
prejudicial effect of admitting the similar facts.
¯
Where there is a
real issue of the similarity between the incidents is artificial (e.g. that two
complainants colluded and created similar stories) prejudicial effect is
greatly increased.
o
In such cases the
similar fact evidence is generally rejected.
¯ The evidence must be strikingly similar.
¯ The similarity must be to a high degree,
although the standard to apply to the main inference from similar fact evidence
is to a balance of probability.
¯
The onus to
establish that the probative value of the similar fact evidence outweighs its
prejudicial effect rests with the Crown, albeit to a civil standard.
o
Unless that onus
is met, a court may not admit similar fact evidence.
¯ The similar fact rule also applies in civil
cases.
¯
A civil case is
limited to the facts in issue, not history, and unless there is some reason to
believe similar prior acts have probative value exceeding prejudicial effect,
the prior circumstances are not admissible.
¯ It is easier to adduce similar facts in a
civil case if only because the risk of unfair prejudice is less
¯ Evidence of similar facts is admissible
when it is logically probative or relevant to a material issue in the case, and
it is not unduly oppressive or unfair to the other side
¯ The collateral facts rule prohibits evidence
the sole purpose of which is to contradict a witnessÕs testimony regarding a
collateral fact.
o
A
collateral fact is a fact that is neither relevant nor material.
¯
If a question is
put to a witness regarding a fact that does not impact on an issue in the
lawsuit, the answer to that question, regardless of what the answer is, cannot
be challenged by extrinsic evidence.
¯ The rule can be stated:
o
No
extrinsic evidence may be called to contradict a witness on matters solely
raised to challenge the witnessÕs credibility.
¯
The purpose of
the rule is to limit the evidence before the court to that truly of assistance
to the court
¯ There are two ways a prior statement of a
witness can be used:
o
A
statement by a party may be adduced by an opponent to prove its truth.
á
This is merely
the admission exception to the hearsay rule:
á
As a general
rule, anything a party says may be used against that party even though it is
hearsay.
o
You
can use a prior inconsistent statement to cross-examine a witness.
á
In such case the
prior statement is not admitted to prove its truth (unless it is adopted by the
witness) but to show the witnessÕs testimony is unreliable.
á
The statement is
no evidence of the facts contained therein ˆ the statement is only evidence of testimonial
weakness.
á
The prior
statement can remove the present testimonyÕs effect but not more.
¯
A prior
inconsistent statement may also be admissible as proof of its contents, even if
not adopted by the witness, if the criteria of necessity and reliability are
met.
¯ The prior criminal convictions of any
witness are relevant insofar as they impact on credibility.
o
This is true of
accused as witness as well as any other witness.
¯ An accused may not be convicted on the
basis they were a bad person.
o
Thus, in
accusedÕs criminal past is only relevant for credibility and nothing else.
¯ The court has discretion to exclude
evidence of prior convictions in appropriate cases.
o
Such exclusion of
prior convictions is proper only where the risk of prejudice exceeds the
probative value of the prior convictions, especially as regards credibility.
¯ An accused who elects to testify can be
cross-examined on prior conviction like any other witness.
o
The purpose of
such cross-examination is to weaken credibility and so the convictions of an
accused are relevant only when the accused testifies
¯
Evidence
of prior convictions cannot go in unless the accused testifies.
¯
The general rule
against impeaching come from Wright v. Beckett:
o A party never shall be permitted to
produce general evidence to discredit his own witness, for that would be to
enable him to destroy the witness if he spoke against him, and to make him a
good witness if he spoke for him, with the means in his hands of destroying his
credit if he spoke for him.
¯
Nevertheless, at
common law, it is very clear that you can contradict your own witness, but you
cannot call evidence going to rely to the witnessÕs credibility.
o
You can though
raise issues related to your witnessÕs character to deal with an issue likely
to arise on cross-examination.
¯
The key is that
by calling a witness you are asking the court to accept their testimony as
honestly given ~it may be mistaken, but you suggest it is honest. Put otherwise, if the witness is
unworthy of belief, why are they being called?
¯ A prior consistent statement of a witness is
generally inadmissible
o
It proves nothing
except that a witness has not changed their story.
o
This last point
gives rise to the exception:
¤
A prior
consistent statement can be adduced to rebut an allegation of recent
fabrication.
¯ Specifically, if a witnessÕs account of
some incident or set of facts is challenged (directly of implicitly) as being
of recent invention, the party calling the witness is allowed to rebut that
challenge by showing that at some earlier time the witness made a statement to
the same effect.
o
The
earlier statement must have been made contemporaneously with the event or at a
time sufficiently early to be inconsistent with the suggestion it is of late
invention.
o
The
earlier statement is adduced solely to prove consistency.
o
The
earlier statement itself is not evidence of the truth of its contents.
¯ These devises are all directed as mechanical
techniques to bolster the credibility of witnesses.
o
General evidence
called solely to bolster a witnessÕs credibility is improper, and thus these
devises are disallowed.
¯
Similar, the
repetition of statements given while subject to these devices that are
consistent with present testimony amount to nothing more than prior consistent
statements.
¯ As well, there is doubt as to the accuracy
of truth measuring techniques.
¯ The admission of the results from these
devices therefore has been rejected by the courts.
¯
Similarly,
evidence that a witness offered to take a lie detector is rejected as amounting
to oath helping.
¯
However, just
because a lie detectorÕs test results are not admissible does not mean the
interview itself is inadmissible.
¯
Thus the
transcript of a lie detector interview is admissible on the same basis as any
other question and any statements made during the test can be used against the
accused as an admission
¯ Whenever a case rests on the testimony of
potentially untrustworthy witnesses, a judge is prudent to advise the jury to
consider the risks of accepting such testimony.
¯ Corroboration is some independent evidence
that affects a party and connects the party with the cause or offence.
o
Specifically, it
must be evidence that confirms not only that a cause exists or has occurred but
also that the party in dispute is connected to it.
o
It need only go
to a single material point and it is enough that it tends to show the cause
exists and a party is connected to it.
¤
This means that
if testimony is given by an uncredible witness, it is advisable the material
evidence of some sort be shown to the court that backs up the testimony of this
witness.
¯ Always best to have corroboration of
evidence adduced by one witness ˆ gives it credibility
¯
The
best that the nature of the case will admit
¯
Proof
of the contents of a written document ought to be made by production of the
original document.
¯
This highly
limited rule is the modern form of the best evidence rule.
¯
It
is now well established that any application of the best evidence rule is
confined to cases in which it can be shown that the party has the original and
could produce it but does not.
¯
The best evidence
rule is limited to require the production of an original of a document
available to the party.
o Copies may be adduced if an explanation of
why the original is missing is given.
¯
Additionally,
where a copy, rather than the original, is produced, the court will reject the
copy, and apply the best evidence rule, only where there is a legitimate
dispute as to the contents of the document.
¯
The best evidence
rule deals with the contents of documents, not the existence or identification
of the document.
¯
Where
the existence, as opposed to context, of a document is relevant, proof of that
existence is not subject to the best evidence rule.
o The best evidence rule applies to contents
of documents only
¯
It may be that
this rule does not apply to anything other than written documents and has no
application to videotapes, photographs or similar items.
¯
If the best
evidence rule applies, certain exceptions to the rule exist allowing the proof
of a document by secondary evidence.
o
If the original
has been lost or destroyed evidence from a copy may be admitted.
¤
In such a case
the copy must be verified as a true copy that contains the same terms as the
original.
o
Parol evidence of
a lost or destroyed document is also admissible.
o
When a document
is unavailable for court because the original exists, but is in the hands of a
party outside the process of the court or who cannot be compelled to produce
the original, secondary evidence of the documentÕs contents is proper.
o
Similarly, if a
document is in the hands of a person subject to compulsory production to the
court, but that person does not comply with their obligation to produce, the
document may be proven by secondary evidence.
¯
Until recently
the rule was on the way out ˆuntil e-mails came along
¯
With e-mails the
original can be advantageous ˆ because of scripts in the header setting out time, sender etc.