EVIDENCE Exam Guide

EVIDENCE – Exam Guide

BASIC STEPS:

1)Admissible?

PV v. PE
Specific to case/evidence in question
Mention PV v. PE in general  Overarching Policy considerations, Qualified search for Truth
Other specific TESTS for each type of evidence
Presumptions / Onus / Standard of Proof
Who is submitting – Crown or Defense (corresponding duties/leeway)
Civil or Criminal context
IF WITNESS – competent and compellable?

2)For What Purpose? (the specific Issue, what is actually Disputed)

Truth
Credibility
Identity
Level of culpability (or proof of functioning / cognitive mind?)
State of mind
Collusion

3)Limiting Instructions?

WEIGHT?
Editing
Who decides – judge or jury

PROBATIVE VALUE v. PREJUDICIAL EFFECT

-WEIGHING  PV (search for Truth) with PE (justice, fairness, policies)

Probative Value: must be both relevant AND material

-1) Relevance

Increase/decrease probability of existence of a FACT in issue
Relationship b/w evidence and

-2) Materiality

Relationship b/w evidence and the MATTERS in Issue

-No minimum PV required

-In issue: look at framework of case, elements of offence

-Proximity in time and space to offence

-Degree of nexus b/w evidence and event in question

Prejudicial Effect:

-1) Prejudice to immediate Accused

-Potential to cause jury to prejudge, jump to conclusions

arouse emotions of prejudice, sympathy, hostility, stereotypes
distraction
danger of punishing Accused for other misconduct
time-wasting
unfair surprise

-2) Prejudice to Admin of Justice

-negative effects, cause disrepute – broader notions of equity, confidence in system…

-**Limiting Instructions can diminish PE

BALANCE – Overarching Policy Considerations

-Relative Degrees of PV and PE…(and depends on which side is leading…)

**Higher bar for excluding Defense evidence…Seaboyer, PE must substantially outweigh PV in order to exclude as inadmissible

-Err on side of Admissible (weight, instructions) but must be Credible / Reliable if Crown leads

-Exclude evidence that could lead to wrongful conviction - important link to show in EXAM

-**RARD need not be based on proven factsW(D):

If believe accused; acquit
If do not believe accused, but evidence RARD; acquit
If do not know who to believe; acquit

WEIGHT / LIMITING INSTRUCTIONS:

-Tell WHY evidence is being admitted:

Limit what can be used for -If evidence can have good probative value for one purpose, but can be misused for other purposes…
Weight it should be given

-***ALWAYS remind Jury, warn against using it for prejudicial reasons, link to wrongful convictions

TYPES of EVIDENCE

-Everything admissible is led before Jury, they find FACTS from it

Presumption: need evidence to prove any inferences to be drawn/facts to be proven

-Once Admissible  Jury examines evidence as a whole - do not have to assess BARD each piece of evidence first, before using to consider facts/verdict

Accused does not have to prove facts to have an inference drawn
Crown evidence has to be Credible and Reliable

Direct OR Circumstantial

Direct: Evidence that can be used w/o drawing any further inference, evidence speaks for itself

Ex. Eyewitness evidence

2 Possibilities of Error: mistake of witness, person is lying
EYEWITNESS Identification: presumption - ADMISSIBLE
but dangerous from Reliability standpoint
more reliable if W knows Accused, view, proximity, time
stressful situation, or Transference (seeing Accused, photo line up, media)
Instructions to Jury:
May (not required) look for Corroborating Evidence
Clearly set out risk of mistake, link to wrongful convictions
If potential tainting, give it very little weight

Circumstantial: Need to draw an inference from it to use it

3 Possibilities of Error: above 2, plus Improper Inference

-Myth: that you cannot convict on circumstantial evidence, can often be incredibly strong, stronger than direct

-Miller error: circumstantial evidence from which Crown would ask jury to draw inferences MUST be proven facts…but proven facts instruction does not apply to D (doesn’t need to prove anything, just RARD)

REAL / DEMONSTRATIVE

-gives trier of fact complete first hand impression, can be directly inspected, flows directly from crime (ex. Gun, video, photos) OBJECTS – not witnesses??

-Direct Evidence: to some extent evidence speaks for itself, but need to consider procedures

-Admissibility/Weight: DEPENDS:

If problems not so bad, is a weight issue,
but if lots of problems – admissibility issue
If legitimate purpose for putting in, Court unlikely to prohibit, but likely to edit, make sure not used for improper purpose Limiting Instructions

-Onus: on person leading, to provide evidence of Authenticity

Specific TESTS:

-Videos/Photos

1) Authentication
Verification on oath by person capable to do so
Person who made video: how evidence came into existence
Witness: confirm it is an accurate description
Technician: set up camera, process of the camera
2) Misleading?
Fairness, absence of intention to mislead
Basic PV v. PE: For what Purpose being led?Affects the Balance…
Establish accuracy in truly representing facts
Intermittent gaps
Selective editing – motive (Penny)
Format Changing
3) Even if above 2 met, Can still Prejudice - if Highly Inflammatory (esp. for Photos)
Demonstrate that which something less graphic could not show
Judge may limit the amount of photos shown…or specific ones

-Documents

1) Authentication:
When, where, how created, basic history
Person who authored testifies
Someone who was present (ex. Board meeting) vouches for accuracy
Found in possession of A or witness (helpful depending on purpose)
2) Best Evidence Rule:
Have Original – use it
Copy – authenticate it
Manner of Destruction of original – accidental (OK), intentional (problems for admissibility)
Bank records: 1) any form 2) may change 3) may be complation or collation of other records 4) must been produced as reference source, or part of internal audit system

Judicial Notice

-Circumstantial –

-Presumption: need evidence to prove any inferences to be drawn/facts to be proven

Facts that are either so notorious or generally accepted as to not be subject of debate among reasonable persons
High standard
NOT: money for training child to be pro athlete, or lawyers will not take cases if have to pay costs out of own pocket

FOCUS

If trying to include – in principle:

-proper authenticating evidence provided

-highly probative,

-edit amount of photos shown, OK

Possible examples from caselaw
Bank records

If trying to exclude – in principle:

-selective editing – motives

-destruction of docs for sinister reason

-overall – Inflammatory, prejudicial

Possible examples from caselaw
Transcripts
Video with selective editing, going to method not identity

EXTRINSIC MISCONDUCT

-Circumstantial - Misconduct of Accused or a party/witness that is outside the subject matter of the proceeding

-Type of evidence that can lead to serious miscarriages of justice

-Potential for Prejudice:

Propensity reasoning/evidence – BAD – should be excluded
Punish for previous acts
Distraction
May lower standard of proof

-CIVIL Cases: more flexibility, not as concerned about prejudice, but still use Crim standards

(Extrinsic Misconduct) – BAD CHARACTER of the ACCUSED

-Presumption: INADMISSIBLE – Accused character is not in issue

Strict test: General Propensity is not enough, PE outweighs PV
Exception: Specific Propensity – Similar Fact Evidence
GOOD CHARACTER?
Goes to weight, but opens the door for Crown to address Bad Character

-Onus: on the Crown

SoP: BOP - in the circumstances of particular case the PV outweighs the PE

General TEST for ADMISSIBILITY:

1) Relevant to a material issue beyond Bad Character?
Ex. Credibility?
AND
2) Does PV outweigh the PE?
Judge can allow some of the BC evidence in
***Limiting Instructions: Even if admissible, Judge needs to warn jury about what evidence can and cannot be used for

EXCEPTION: SIMILAR FACT EVIDENCE

-Presumption: INADMISSIBLE (Character Evidence)

-Onus: on the Crown

SoP: BOP - in the circumstances of particular case the PV outweighs the PE
And, identify the issue to which SFE relates

-MUST be accompanied by Limiting Instructions – if Admissible, still Weight issues

How to use evidence, which issue it bears on
**Cannot use SFE to make inference that Accused is of a character to do this crime

-PV - Based on level of similarities  ***objective improbability of coincidence ***

-Often can make or break your case – once jury sees evidence of pattern of conduct, more likely to convict

-Can use Incident 1 to determine guilt on Incident 2

Basic Admissibility TEST  PV v. PE

distinct and particular propensity to act in a specific way under specific circumstances
FACTORS:
Proximity in time
Similar in detail (conduct itself, hallmarks)
Number of similar acts
Circumstances and context around the acts (sports-bar fight-weapon)
Strength of reliability of SFE
Amount of time to adduce the SFE
1) Weight of PV
Strength of evidence that similar acts actually occurred (collusion/collaboration?)
Connectedness – extent to which proposed evidence aids the inferences made
Materiality of the matters it is intending to prove
2) Potential for Prejdice (moral, and reasoning)
3) BALANCE

Identity TEST:

1) Such high degree of similarity, objectively improbable that crimes committed by more than one person
2) Is there some evidence linkingAccused to the similar acts?

Collusion TEST:

Chance that similar accusations against A could be produce of Collusion weight
Air of Realityto the accusation of collusion admissibility
Crown must show on BOP “NO Collusion”

FOCUS

If trying to get in – principles:

Possible examples from caselaw

If trying to exclude – principles:

Possible examples from caselaw

(Extrinsic Misconduct) – POST OFFENCE CONDUCT

-Circumstantial – based on conduct of the Accused after the offense, leads to guilty inference

-Presumption: ADMISSIBLE – leave to Jury to decide why they are acting that way, weight

-Onus:

SofP: if central issue to Crown case, basically for jurors to consider BARD

Admissibility TEST:

If at least one reasonable explanation that Accused was guilty, leave to Jury**
If certain DEFENSES are put forward
Self Defense: assertion of justification…can admit POC
but still balance: Mistrust of legal/criminal justice system, police??
Intoxication: determine functioning of mind (not degree of guilt, below)
**Use Limiting Instructions here, to clarify on both of these issues

-INADMISSIBLE:

If issue is degree of culpability
Ex. Manslaughter v. Murder
Unless…large gap between offence admitted (ex. Assault v. Murder)

Consciousness of Innocence:

Reasonable inference that Accused is not guilty, leave to Jury**
PV - Some acts could lead to detection if guilty, depending on the type of crime (ex. DNA test in sexual assault)
But no Right to Silence negative inferences allowed…
NOT Admissible:
Decrying innocence
Consider Accused’s knowledge of state of the investigation (ex. DNA evidence destroyed in fire already)

-Principled approach: if we let Crown get bad POC in, should be easier for Def to put evidence in, so allow COI evidence  leave to Jury

-Def has to be careful not to open up the door, about issue of POC/Demeanour…

FOCUS

If trying to get in – principles:

Possible examples from caselaw

If trying to exclude – principles:

Possible examples from caselaw

(Extrinsic Misconduct) – BAD CHARACTER of the WITNESS

-On X, attempt to undermine witness:

Reliability: accuracy of their evidence due to certain objective circumstances (even if honest)
Ex. dark, quick, scared
Credibility: trustworthiness of the witness
Ex. lying, exaggerating, minimising, questionable logic, demeanour on stand
PIS, Bias, Prior bad acts (crim record), interested in judgment (association, financial, related), other motivations

Prior Convictions

-Presumption: (depends on purpose) ADMISSIBLE if going to credibility issue – logical link

Weight: Prior bad acts (ex. dishonesty criminal offence - fraud, obstruction)

-Onus:

SofP:

CEA s. 12.1

Witness can be questioned as to whether convicted of any offence
BUT: Judge has discretion, to let in (PV v. PE)
Factors:
If prior offense has element of dishonesty (fraud, obstruction - PV)
Temporal proximity
Nature of crime (if similar to this one, more PE)
MUST give limiting instructions on how to use evidence, for credibility

-Accused is Witness: just bring in the fact of the conviction, for credibility – cannot get into the details (unless SFE application OR Accused opens the door to talking about the offence)

Cannot use charge for which acquitted

-Crown Witness: greater discretion to get into details of previous convictions

VETROVEC WITNESS

-Presumption: ADMISSIBLE

Credibility weight, left to jury, find confirmatory evidence to help restore faith

-Onus:

SofP:

-Crown witness that has inherent, profound, or serious reliability or credibility concerns, beyond regular problems – lack of morals

Ex. jailhouse informant, lied under oath, multiple PIS, an Accomplice getting a deal, benefiting from testimony (money, jail privileges, plea bargain)
Not for Defence Witnesses

-Linked to wrongful convictions

TEST  WEIGH these Factors:

1) Degree of problems with Inherent Trustworthiness
Involved in crim activity
Delay in coming forward
Benefit for testimony
Series of PIS
2) Importance of Witness to Crown case
More imp to Crown – lesser degree of problems needed to invoke caution
3) INSTRUCTIONS to JURY
1 – Separate the witness out from the rest, treat differently
2 – Identify characteristics that bring VW credibility into serious question
3 - Caution jury: not required, but dangerous not to use confirmatory evidence
4 – Look for independent evidence, to confirm other material testimony of VW
Confirmatory/Corroborating Evidence:
1 – Must relate to material/relevant aspect of VW evidence
Doesn’t have to confirm key element, but cannot be merely peripheral
2 – reasonably capable of restoring faith in VW
Depends on how bad/serious, range of VW - need more CE to restore faith
3 – independent
Cannot come from VW themselves, or Collusion

FOCUS

If trying to get in – principles:

Possible examples from caselaw

If trying to exclude – principles:

Possible examples from caselaw

COMMON KNOWLEDGE / LAY OPINION EVIDENCE

-Provide information to jury to assist them in forming their own opinions, allow them to draw inferences they otherwise would not be able to do (do not understand certain issues)

-First hand, non-experts…

-Presumption:VARIES. A lot may go to weight.

-Onus:

SofP:

RULE

A Witness can provide opinion regarding something within common knowledge/average persons common experience, which doesn’t require expert qualifications
TEST: PV v. PE
FACTORS:
1 - witness is drawing logical inference from facts
2 – facts upon which opinion is based are too speculative
3 – opinion phrased as legal conclusion (invasion into trier of fact role)
Ex. ‘too intoxicated to drive’ - as opposed to ‘seemed intoxicated’
4 – goes beyond common knowledge into expert evidence
Ex. ‘was having a heart attack’

FOCUS

If trying to get in – principles:

Possible examples from caselaw

If trying to exclude – principles:

Possible examples from caselaw

EXPERT OPINION EVIDENCE

-Provide information to jury to assist them in forming their own opinions, allow them to draw inferences they otherwise would not be able to do (do not understand certain issues)

-**Disclosure requirement for Defence here (30 days notice for all, CC)

-Presumption: Err on the side of NOT calling EE, especially for Behavioural

DEPENDS greatly, on Mohan Balancing, and Foundation evidence

Weight:
Qualifications of Expert
Only some evidence of Foundation of expert’s opinion

-Onus: party seeking to enter the EE

SofP: BOP - each element of Mohan

-Scientific and Technical EE is more Admissible  Behavioural EE is more open to attack

TEST: Mohan

-PV v. PE, with particular features

1) Relevant
Of the EE, to the material issue
2) Necessity
In assisting the trier of fact, in drawing inference relative to the case
Too conclusive, too complicated – not as helpful
Threshold is necessity, NOT helpfulness…needs to be more
3) Qualified
Not usually controversial – weight issue (leading expert or not)
Cross for bias…(paid, always on one side)
4) Absence of other Exclusionary Rule PV v. PE
Manner in which it is provided may tip the balance – how articulated – concerns over Expert taking over trial, usurp role of jury
Hypothetical Question: as opposed to giving opinions regarding the specifics of the case, crossing the line, likely inadmissible
Unless evidence is not in dispute, or Expert has dealt directly with the Accused (ex. interviewed)
Ultimate Issue: closer the opinion goes to ultimate issue, stricter the test for Admissibility…
Evidence going to Foundation/assumptions of Expert Opinion:
if none, admissibility issue
if some, or too much psychiatric evidence/hearsay, goes to weight(even if significant – Lavallee)

Novel Scientific Evidence

-Trial judge as gatekeeper – new forms of science regarded with special scrutiny

TEST:

Whether the science is sufficiently reliable to put before the court
Factors:
1 – Has technique been tested, or can it be
2 – Has theory or technique been subject to peer review
3 – Is the error rate known
4 – Generally accepted by scientific community (U.S. import, Fry test)

Credibility of Victim – Oath Helping

-oath-helping: prohibits admission of evidence adduced solely for purpose of proving that a witness is truthful…credibility of victim is not subject to Opinion Evidence

applies to Truthfulness of Witness (as opposed to Truth of Witness’ statements)
Experts cannot say: find particular witness “credible”, “truthful, believable”

-Admissibility: Can still be admitted, if in addition to oath-helping it has some other legitimate purpose (if indirect to issue of credibility)

ADMISSIBLE: Evidence about a feature of witness’ behaviour or testimony
INADMISSIBLE: Evidence about credibility of witness

FOCUS

If trying to get in – principles:

Possible examples from caselaw

If trying to exclude – principles:

Possible examples from caselaw

COMPETENCE and COMPELLABILITY of WITNESSES

-Presumption: Competent and Compellable – testifying is public duty, necessary to facilitate search for the truth

Exception: the Accused – is competent but not compellable – Charter s.7, 11.c: cannot draw adverse inference from Accused decision not to testify
Also: privilege, age, mental capacity, specific circumstances (ex. Spouse)

1) COMPETENCY

-Presumption: Compellable

**Statutory presumption of capacity, for children
Weight: no lesser weight if admitted based on promise to tell truth, as opposed to oath/SA

-Onus: Party challenging the competency of the witness must satisfy the court that there is an issue as to capacity, on BOP:

Mental: 1) cannot understand nature of oath OR 2) unable to communicate evidence
Children: 1) understanding 2) responding

-CL: witness must be under oath, morally bound to tell truth through oath or solemn affirmation