Assessing Probative Value V Prejudicial Effect

Evidence CAN J. Martin

EVIDENCE LONG CAN

General Principles of Evidence

Assessing Probative Value v Prejudicial Effect

When to deal with evidentiary issues:

Three Critical Contexts for the Law of Evidence

The Burden of Proof

Credibility and its relation to Reasonable Doubt:

Types of Evidence

Direct Evidence

Circumstantial Evidence

Special Rules about Circumstantial Evidence

Real/Demonstrative Evidence

Documentary Evidence

Judicial Notice

Extrinsic Misconduct Evidence: Bad Character of the Accused

Bad Character of the Accused

General Inadmissibility

Character of Parties in Civil Cases

Character of Accused in Criminal Cases

Exceptions to the general rule that Crown cannot lead evidence of bad character as disposition evidence:

Similar Fact Evidence

Evidence of Habit and Similar Acts

Similar Fact Evidence & Identity

Evidence of Good Character of the Accused

Post Offence Conduct

Bad Character of the Witness

The Vetrovec Witness

Identification Evidence

Opinion Evidence

Statutory Rules

Common Knowledge

General Rules for Experts

Necessity

Ultimate Issue

Credibility of a Victim

Rule against “oath helping”

Foundation

A New Framework for Admissibility

Witnesses

Ability to Testify

Competence, Oaths and Compellability of Witnesses

Adult Witnesses

Child Witnesses

Order of Witnesses

Direct Examination

Leading Questions

Refreshing a Witness’ Memory

Cross Examination

Re-Examination

Collateral Facts / Rebuttal Evidence

Statement Evidence

Prior inconsistent Statements

Prior consistent Statements

Attacking Credibility of Own Witness

Difference between s.9(1) and 9(2):

Hearsay

What is Hearsay

Traditional [Common Law] Hearsay Exceptions

DYING DECLARATIONS

DECLARATIONS IN THE COURSE OF DUTY

SPONTANEOUS DECLARATIONS

STATE OF MIND/STATEMENTS OF INTENT

The Principled Approach to Hearsay Exceptions

Substitutes for Reliability

Principled Approach to Hearsay TEST:

Statutory Exceptions

Prior Testimony Exception

Admissions and Confessions

Formal Admissions

Informal Admissions

Exception To Informal Admissions: Partial Overhears

Exception To Informal Admissions: Mr Big Operations

Voluntariness Rule:

Admissions of the Co-Accused

Exclusion of Evidence Under the Charter

Privilege Against Self-Incrimination/Right to Silence

Police Custody

Out of Custody

Witnesses

Statutory Obligations

Privilege Based on Confidential Relationships

Class Privilege – Solicitor/Client

Statement of Rules set out by the Court:

Litigation Privilege

Case by Case

Exceptions to Class Privilege

Inadvertent Disclosure

Innocence at Stake Exception

Waiver

General Principles of Evidence

General Evidence Principles

Admissibility: Is it admissible? This determination is made by the TJ
Does the evidence have probative value (relevant + material)?
Is there any prejudicial effect?
Determine PV in relation to determine if PV > PE
Limitations: Are there any limitations? The evidence can be subject to special rules after it has been admitted. Ex: it can only be used to determine credibility, not guilt. What is the purpose of admitting?
Weight: What weight should be given to it? Jury can be told to be cautious about using certain types of evidence.

Policy for strong evidentiary rules: weak evidentiary rules can result in wrongful convictions

Strictest rules of evidence are applied in a criminal trial because: TOF are ordinary people usually and people’s liberty is at stake.

SOURCES OF EVIDENTIARY RULES[these sources reflect the principled nature of evidence law]:

Statute
The common law (changes can be made in the courtroom)
The Charter (sets out evidentiary rules but also through the Charter has had an important role in the development of the CC. Charter can be used to challenge statutory rules you think violate the Charter).

The law of evidence represents a tension between the search for the truth and justice. It is arguable which one is the primary goal of evidence rules.

R v Mullins(acquitted-of-child-murder-no-factual-innocence)

There is no finding of factual innocence because it is not within the purpose of the criminal law. A criminal trial is to determine whether the Crown has proven its case BARD.

Declines to grant a third verdict of innocence, apart from guilty/not guilty [involved a wrongful conviction related to a child murder based on flawed expert evidence]
Finds that the Court has no jurisdiction (which comes from statute) to make a declaration of innocence
Would also change the meaning of not guilty, and create two classes of people: those who are factually innocent and those who benefitted from the presumption of innocence and the high standard of proof BARD
Risk of stigmatizing those that don’t receive factual innocence
Courts and judges are not shy about saying what they think, even if they don’t declare the accused innocent
Higher charge approval standard so doesn’t happen as often in BC

Role of TJ: Doesn’t need to be entirely passive, can ask witnesses questions, interrupt them and if necessary call them to order  the judge may and must intervene for justice to be done

Can the judge comment on the evidence? Considered in:

R v Lawes

A TJ is entitled to comment on evidence while instructing the jury
Just needs to make it clear that the opinion is given as evidence and not direction
Found not to contravene right to trial by jury in 11(f) will sometimes have to make comments that are desirable or required or to direct jury to focus on critical issues
Also required to make clear to the jury that they are not bound by the judges view, and that the judges opinions are not stronger than what the facts warrant and the opinions are not overstated to the point where it is likely that the jury will be overawed by them

Assessing Probative Value v Prejudicial Effect

Fundamental Rule of Evidence:all evidence which is relevant and material is admissible until proven otherwise. There is an overarching presumption in favour of admissibility (R v FFB). However, it is important to note that several areas are presumptively inadmissible.

Presumptively Admissible / Presumptively Inadmissible
Eyewitness identification / Extrinsic misconduct evidence (EME)
Facts of a prior conviction (Corbett hearing) / Expert opinion
Child witness / Prior inconsistent statements
Confessions of the accused / Hearsay
Information where a non-class privilege is claimed / Statement obtained in breach of Charter rights
Evidence of silence

Each piece of evidence must pass the probative v prejudicialtest [remember this factors into every evidentiary analysis!]

FOUNDATIONAL PRINCIPLE: If the PV exceeds the PE, it is admissible.

Probative value: does this evidence help us with the essential elements (proving the fact) of the crime. If it doesn’t, it’s not relevant. Weighed/ balanced against:

Prejudicial effect: does the evidence help divert the search of the truth due to the nature of the evidence?

Prejudice the truth seeking function: could it cause the TOF to irrationally convict?
Prejudice to certain societal relationships we hold sacred: e.g. fundamental privacy rights violated (s.8)?
Prejudices basic efficiency of justice system: take too much time and divert attention from where it should be.

Probative value = relevance + materiality

RELEVANCE: has any tendency to make the proposition for which it is tendered more probable than the proposition would be without the evidence (Anderson v Maple Ridge).
Morris v R (heroin-dealer-has-news-clippings): Admissibility of evidence must not be confused with weight. The weight to be given to evidence is a question for the trier of fact, subject to the discretion of the TJ to exclude evidence where the PV is minimal and the PE is great.
MATERIALITY: the fact sought to be established must concern a matter in issue between the parties (R v Arp).

Prejudicial effect =

Concept of EME is presumptively inadmissible
When someone is charged w/ an offence that is intrinsic, but
Any other evidence that makes A look like a person of bad character is extrinsic to the crime and is prejudicial
Dangers of leading evidence that has PV but has PE:
Convenient vehicle to convict for other offence
Tempts TOF to convict of other crime they are not accused of or charged for
General propensity reasoning: affects TOF reasoning process
Very dangerous and rooted in many wrongful convictions
Assumption is that bad people do bad things and can irrationally jump from bad person to must have done it again

Probative / Prejudicial
Concerns BOTH relevance and materiality
Relevance: Does it make something more or less likely?
Materiality: Must be relevant to a legal issue in the proceeding.
Test: the evidence tends to increase or decrease the probabity of a fact in issue.
* there is no minimum threshold for PV / There are two main forms of prejudice:
Prejudice against the accused (moral prejudice):

It might affect the TOF’s reasoning process
It might affect the TOF on an emotional level (ex: bad character)
It might indirectly affect reasoning by, for instance, drawing the trial out so long that the TOF forgets (consider how much evidence) about other important evidence or distinctions.

Prejudice against the administration of justice:

Could harm the public confidence in justice system
Could set a dangerous slong term precedent

Also prejudice to the broader community
Analysis: (i) break down all the facts that Crown must prove, (ii) make sure each relates to a fact at issue, (iii) show there is some PV, and (iv) make sure PV outweights PE.

R v Seaboyer

DIFFERENCE BETWEEN THE DEFENCE AND CROWN EVIDENTIARY STANDARDS IN CRIMINAL PROCEEDINGS

Defence tried to introduce evidence in a sexual assault case about consent in past – no PV and is extremely prejudicial. Can’t invite TOF to acquit based on speculation.

Test – Probative value vs. prejudicial effect

Crown evidence = admissible when the PV of the evidence exceeds its PE

Defence evidence = admissible as long as the PE does not substantially outweighthe PV

When D seeks to lead evidence there is still a PV and PE test. However, it is an easier test – PE must be substantially outweighed by PV.

When to deal with evidentiary issues:

Primarily before trial (pre-trial motions). Generally time consuming process,
Evidentiary rulings during trial (people forgetting or new recollections) or
On appeal after trial (whether there was a legal error with respect to evidence).

R v ARP

TO BE RELEVANT, EVIDENCE ADDUCED MUST SIMPLY TEND TO INCREASE OR DIMINISH THE PROBABILITY OF THE EXISTENCE OF A FACT IN ISSUE

U and B were murdered two-and-a-half years apart in the same city and in similar circumstances. D was charged and then applied to sever the two murder counts. The Crown opposed and asserted that even in the case of severance, it would seek to adduce the evidence of each offence in the other trial as similar fact evidence.

Suggestions in deciding whether to admit similar fact evidence adduced to prove identity:

A high degree of similarity between the acts is required in order to ensure that the similar fact evidence for requisite PV/PE balancing. The similarity can be a unique trademark or signature or a series of significant similarities.
Judge should only consider the manner in which the acts were committed and not the evidence as to the accused’s involvement in each act.
As a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person, then the similar fact evidence will have sufficient probative force to outweigh its prejudicial effect.

The jury should determine, on a BOP, whether the similarities between the acts establishes that the two counts were committed by the same person. If that threshold is met, the jury can then consider all the evidence relating to the similar acts in determining whether, BARD, the accused is guilty.

There is no need for evidence to absolutely prove fact in issue
The higher the PV, the more likely it will overcome any PE and be admissible
For something to have probative value, it must be material and relevant
There is a sliding scale, but no minimum threshold for PV

Evidence of propensity or disposition may be relevant, but it is usually inadmissible because its slight probative value is ultimately outweighed by its high prejudicial effect. There are three potential dangers associated with evidence of prior bad acts:

The jury may find that the accused is a “bad person” who is likely to be guilty of the offence charged;
They may punish the accused for past misconduct by finding the accused guilty of the offence charged; or
They may simply become confused by having their attention deflected from the main purpose of their deliberations, and substitute their verdict on another matter for their verdict on the charge being tried.

R v FFB

ALL RELEVANT EVIDENCE IS ADMISSIBLE UNLESS IT IS BARRED BY A SPECIFIC EXCLUSIONARY RULE.

Accused was charged with sexual assault of niece; Crown can thus call evidence related to the assault. The Crown called other evidence from same witnesses of controlling and violent behaviour of the accused.

Bad character evidence is admissible if:

It is relevant to some other issue beyond disposition or character;

In this case, the extrinsic misconduct evidence (EME) was relevant because it went to why disclosure was so late: fear of the accused.

The PV outweighs the PE

Clear that you can’t lead evidence just to show he was a bad guy, but it had probative value to the issue raised by the defence.

A new trial was ultimately ordered because no limiting instruction was given, ex: You heard evidence of the A’s alleged domineering acts, you were given that evidence for a specific purpose (to evaluate why they waited to complain).

The admissibility determination is not the end of the probative analysis. Need to provide the jury with limiting instruction. Tell the jury what they can use the evidence for: NOT as evidence that he is a person of bad character

Three Critical Contexts for the Law of Evidence

Adversarial system:

Judge is neutral, can’t act as party to the proceedings (could show bias), there to listen.
Most evidentiary decisions in our system are made by counsel making strategic decisions on what evidence to call
Judge then decides which theory of the case prevails.
R v Lawes: judge’s opinion can’t be overstated to the point where the jury will be overawed by it
R v Swain: other party can’t lead evidence on your behalf, but if the door is opened by something A says (in this case it was NCR).

Disclosure:

Police and Crown are considered one unit. Have to turn over anything potentially relevant.
Laws of disclosure, all the investigative material is not the property of the State, it is the property of the judicial system.
All of it needs to be turned over. Enables defence to mount defence. Doesn’t have to be admissible, as long as it has some relevance, must be turned over.
Might be potential source of defence evidence.
In civil cases there is full joint disclosure (no hierarchy or imbalance between the parties so both sides have reciprocal disclosure)
Stinchcombe: Crown has to disclose all evidence, not just the evidence they are calling.
In criminal cases the Crown has the principle disclosure obligation. Judges say err on the side of disclosure.
Limited disclosure requirements for defence: Right to remain silent and the right to force the state to build a case against you.
Limited exceptions for Defence:
alibi evidence (need to give adequate time to Crown to verify)
expert evidence: have to give notice to Crown

That would be a burden of proof that the Crown could never meet

Burden of Proof [see below]

The Burden of Proof

In civil cases its balance of probabilities
In criminal cases the standard is BARD
R v Starr: between likelihood and absolute certainty, BARD is closer to AC than BOP
Evidence must be considered as a whole, do not apply BARD standard to each piece of evidence (R v Morin: jury should be instructed that the facts are not to be examined separately and in isolation w/ ref to crim standard)

Credibility and its relation to Reasonable Doubt:

R v W(D): mere belief or mere disbelief may be insufficient to convict.
High standard for RD in criminal cases.
Law has given formula to avoid instinctively weighing the two sides and picking which one you believe in:

If you believe the A  acquit
If you don’t believe the A, but their evidence raises a RD  acquit
If you reject evidence of the A, you must decide on the Crown evidence if you are convinced beyond a RD by that evidence of the guilt of the accused

R v S(JH): adds to W(D), if after a careful consideration of all of the evidence you are unable to decide whom to believe  you must acquit.

The burden never shifts from the Crown to prove all the elements of the offence BARD.

In the civil context, the judge is deciding whether a fact occurred on the BOP; WD Standard is not appropriate

Principle: Don’t ignore evidence that you don’t necessarily accept but raises a reasonable doubt.

R v Plewes

Was at one point included in jury instruction publications  get rid of evidence you don’t accept, and then focus on rest of evidence for your deliberations. This is the wrong approach. Tempts people to pre-screen evidence and encourages a piecemeal approach. Potentially excluded the jury from using evidence that could have raised a doubt. Look at evidence as a whole!

Types of Evidence

All evidence falls into either direct or circumstantial categories. Circumstantial is not a lesser type of evidence. Almost all evidence is circumstantial.

Direct Evidence

Evidence that is directly available to be used without drawing any further inference. Tells you all the necessary facts of the case if you choose to believe it. If you accept that evidence, you don’t have to do anything further with it to convict.

Examples: eyewitness testimony where the witness sees the accused commit the offence; video of entire sequence of events; or detailed confession.

Sources of error for direct evidence:

Reliability: the witness is mistaken;
Credibility: the witness is lying.

Circumstantial Evidence

Not ready-made. Evidence that requires the TOF to make a further inference.

Have to make sure that if evidence is circumstantial, it is not speculative.

In leading circumstantial evidence:

Can’t be speculative
Need to be able to draw at least one reasonable inference
Assessing the reasonableness of the evidence, you have to assess as a whole (Morin)

Example: see someone standing with a knife over the body.