Overarching Values in Evidence Law

Evidence Outline

Basic Points

Overarching Values in Evidence Law

-Efficiency: All systems have some limits on relevant evidence due to efficiency concerns

-Fairness: Can clash with relevancy

-Truth: clashes with fairness when evidence is retrieved contrary to law

-Accessibility: Often when Courts attempt to construct logically coherent rules they also become very complex, and too difficult to apply and understand

Note: privacy is an emerging interest of the law of evidence

Role of Evidence Law

-Concerned with:

The means of proof that can be put before the trier of fact
The permissible uses by the trier of fact
And how the means of proof may be presented and tested

Reasons for Excluding Relevant Evidence

-May cause the trier of fact to reason irrationally or inappropriately

-If it would uneseearyly prolong the trial or confuse the issues

-Would undermine some other important value (value of solicitor/ client privilege)

-If it is inconsistent with the adversarial process and the tier of fact’s role as an impartial decision maker

-If its probative value is outweighed by its prejudicial effect

Trends:

-Purposive Approach: a move to be more flexible standards: values of fairness and accessibility at the expense of certainty

-Development of General Exclusionary Discretion

-Increased Admissibility of Evidence (consequence of purposive approach)

Sources of Evidence Law

-Main source is common law: common law – adversarial system has many more exclusionary rules than other court systems (P&S)

-Statutes: no complete code, but:

CEA: applies in federal courts, in criminal matters, in non-criminal federal prosecutions, in federal administrative proceedings, in bankruptcy matters, and in federal civil matters. Note also s 40: which incorporates by reference the laws of evidence in force in the province in which the proceedings take place, subject to Any federal Act
BCEA: applies to matters within provincial jurisdiction, including provincial prosecutions, provincial administrative proceedings and in most civil litigation
Other statutes: such as the Crim Code contain particular evidence rules for that particular statute

-Constitutional Law: residual discretion of comm. Law courts to exclude evidence tendered under statutory evidence requirements whose prejudicial impact on the fairness of the trial outweighs its probative value (Corbett)

-The Charter

Charter provides express constitutional protection for some evidentiary principles
Presumption of innocence
Right against self-incrimination
Right against self-incrimination in subsequent proceedings
Charter mayconstutituinalize some basic evidentiary principles, if they are found to be PFJs
Charter protects important rights in the investigation of offences
Exclusionary Rule  24(1) and (2)
Illegally obtained evidence will be excluded if it brings the administration of justice into disrepute
Any laws inconsistent with the Charter, including evidence rules, are of no force and effect

The Trial Process

-Criminal trial begins with the charging document: the indictment or the information

-Discolure:

In civil trials: full disclosure subject to privilege
Crim trials: Full disclosure subject to relevancy and privilege on behalf of the Crown

-Motions: Generally pre-trial motions regarding anticipated issues regarding the admissibility of Evidence

-Crown’s Case:

Opening statement, defence can then make opening statement or can wait till the close of the Crown’s case
Evidence mostly introduced through oral testimony of witnesses:
Examination in Chief:no leading questions on anything related to material issues in the case; governed by relevance principle
Cross-Examination: may ask leading questions
Possible Re-examination: any matters that arose which could not reasonably be expected. Generally no opportunity to respond to this
Voir-dires: “trials within a trial”

-At close of Crown’s case the A may bring a motion for a directed verdict of acquittal: if granted, means that the Crown’s , even believed, is insufficient to establish the elements of the offence, if granted, TJ should enter verdict of acquittal themself (Rowbotham)

Directed Verdict of Acquittal: “no-evidence” motion – it is a question on a point of law: involves no weighing of the evidence,
Insufficient Evidence Motion: A motion that there is insufficient evidence ot meet the burden of proof. Election to call no evidence. If motion is lost the case is over. Asks that that the evidence is weighed, and there can only be one point in the trial when this is done

-Defence’s Case: Essentially the same as the Crown

-Reply: Available only if the Defence brought up issues that the Crown could not have anticipated or put things in issues that were not previously an issue (such as if A put character in issue)

-Judgment/Verdict: judges gives judgments, only juries give verdicts

-Sentincing (costs in civil)

Appeals: Right to appeal only is a statutory right

Accused may appeal: on questions of law as well as mixed fact and law, findings of fact may only be overturned if the TJ made palpable and overriding error
Crown may appeal: on questions of law only
Appeal Court may:
Uphold the verdict despite improperly admitted/ rejected evidence pursuant to s 686(1)(b)(iii) of the CCif the error resulted in no substantial wrong or miscarriage of justice
Otherwise may(CC ss 686(2)(3)(4):
Quash conviction,
Substitute verdict
Order new trial
Fresh Evidence on Appeal:an appeal should be argued on the basis of the trial record, but the appellant court does have the power to hear additional evidence (CC s 683; Palmer and Palmer
Normally only allowed if the evidence was not available at the time of the trial

The Adversarial System

Ways it is has been relaxed:

-Professional ethics limit conduct

-Unrepresentated litigants: expose the difficulties created where there is an unequal playing flied

-Discovery: Huge modification to the adversarial system

Fundamental Rule:

Everything that is relevant to a fact in issue is admissible unless there is a legal reason for excluding it (Collins). In other words:

-Evidence is only admissible if it is:

Relevant and
Not subject to
exclusion under any other rule of law or policy

Summary Test in Order to be Admissible (Stewart):

Is the evidence factually relevant: meaning does it tend to disprove or prove the fact it is directed to?
Is the evidence material: meaning is the fact that the evidence is directed to legally significant in establishing an element of the cause of action, offence, or defence that is at issue?
Is the evidence in admissible on any ground of law or policy?
Does the prejudicial effect of the evidence outweigh its probative value?

If the Accused is offering the evidence, in order to be excluded the potential for prejudice must significantly outweigh its probative value (Seaboyer)

Materiality

-Q1: What is the opponent trying to prove?

-Q2: Is that thing a matter in issue?

-Primary materiality: Evidence that relates to a primary issue at issue

-Secondary materiality: Evidence that relates to the quality of the material evidence (such as the credibility of the witness or the eyesight of a an eye witness). Because of trial efficiency concerns this evidence is often accompanied with strict limits on its admissibility

Direct Evidence

-Proves or disproves a material issue without the need for a logical inference to be drawn, therefore the concept of relevance is not important (example: “I saw that man rob the bank” is direct evidence)

Circumstantial Evidence

-Requires a bridging inference before it can resolve a material issue (ex: I saw a man with a teardrop tattoo rob the store requires the inference that because this tattoo is uncommon, the A is likely to the robber)

-Must meet threshold level of logical relevance

Logical Relevance

-Evidence is relevant where it tends to increase or diminish the likelihood of the probability of a fact in issue (Arp)

-Low threshold, to be admissible does not have to establish a fact but only have a logical tendency to contribute to a finding on a material fact

Witnesses: Competency, Compellability and Direct and Cross-Examination

The Oath and Its Substitutes

-In order to testify under oathThe witness must understand the solemnity of the occasion and a moral obligation to tell the truth (Bannerman).

Must be something that binds one’s conscious, usually the threat of divine retribution
Bannerman: young teenager did not need to profess to know what the spiritual consequences would be if he failed to tell the truth

-If a person objects to swearing an oath, they may make a solemn affirmation to tell the truth instead (s 14 CEA). A solemn affirmation requires only an understanding of the penal consequences of failing to tell the truth and does require a recognition of a moral or societal obligation to tell the truth (Walsh)

Originally developed for Quakers and other Christian groups who believed it was contrary to God to take an oath, followed then by recognition that it could bind atheists and agnostics as well
Walsh: sociopath who committed to telling the truth, but only because it was in her best interests to tell the truth, not because of some exterior obligation, should be permitted to testify

Competency in Children

-S 16.1: Children under the age of 14 are presumed to have the capacity to testify (1)

- Children under the age of 14 are not to be asked to testify under oath (2). Children may testify under a promise to tell the truth (6) and if they have the capacity to understand and respond to questions (3)

There is no need for children to understand the nature of a promise to tell the truth (7)
Once the requirements of s 16.1 are met, there is no distinction in law between a child of five and one that is 13 (Khan)
Khan:

-Evidence given by children that is received into court has the same affect if it was taken under oath

Competency in mentally challenged adults

A person whose mental capacity is challenged and who does not understand the nature of an oath or a solemn affirmation, but who can communicate the evidence, can testify on promising to tell the truth (s 16(3)) (DAI)

-The burden is on the party challenging the mental capacity of the witness to satisfy the court that there is an issue as to capacity (s 16(5))

-“communicate the evidence”: involves: - the capacity to observe, the capacity to recollect and the capacity to communicate (Marquard). It may be useful to inquire whether the W can differentiate between true and false everyday factual statements

3.5 year old child was able to communicate the evidence as she was aware of what she did yesterday, could recollect it, and communicate it to the Court

-“promise to tell the truth”: does not require any understanding of a moral or abstract duty to tell the truth (DAI). Only requirement is that the witness can communicate the evidence and makes the promise

Critique: without any understanding of the meaning of promise, a promise seems like an “empty gesture” (dissent); also the difference with s 16.1: s16 does not contain (7) –restriction on questioning based on the understanding of the nature of a promise (majority explains this by saying likely motivated by need for greater certainty for kids)
Witness may be questioned on ability to tell the truth in concrete factual circumstances as part of inquiry into ability to communicate the evidence
TJ’s questions were too abstract: “tell me what you think about the truth”, “if you steal something and no one sees it, will anything happen to you, why?” “is it important to tell the truth?”

-Application of s 16(3):

Others familiar with the witness can testify as to capacity, independent voir dire should be held
Questions should be phrased appropriately
Experts on capacity should prefereably have held direct and regular contact with W

-16(1) Where a proposed witness is (under 14 years of age or) a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine:

-(a) Whether the person understands the nature of the oath or solemn affirmation

-(b) Whether the person is able to communicate evidence

-(2) A person referred to in (1) who understands the nature of an oath/affirmation and can communicate shall testify under oath/affirmation

-(3) A person referred to in (1) who does not understand the nature of an oath/affirmation but can communicate may give evidence on a promise to tell the truth

-(4) A person who does not understand the nature of an oath/affirmation and cannot communicate may not testify

-(5) The Party who challenges the mental capacity of a person referred to in (1) has the burden of satisfying the court that there is an issue as to capacity

Spousal Competency and Compellability

Spouses of the Accused are not competent or compellable except where:

-The Accused and their spouse are competent witnesses for the defence (s 4(1) of CEA)

Unanswered question, but it is general rule that competent witnesses are also compellable

-The wife or husband of a person charged with an offence under subsection 136(1) of the Youth Criminal Justice Act or with an offence under any of sections 151, 152, 153, 155 or 159, subsection 160(2) or (3), or sections 170 to 173, 179, 212, 215, 218, 271 to 273, 280 to 283, 291 to 294 or 329 of the Criminal Code, or an attempt to commit any such offence, is a competent and compellable witness for the prosecution without the consent of the person charged (s 4(2) of CEA)

-The wife or husband of a person charged with an offence against any of sections 220, 221, 235, 236, 237, 239, 240, 266, 267, 268 or 269 of the Criminal Codewhere the complainant or victim is under the age of fourteen years is a competent and compellable witness for the prosecution without the consent of the person charged (S 4(4))

-The common law exception to spousal immunity also remains in force (s 4(5) of the CEA): when the charge against the accused involves the spouse’s, or the spouse’s child’s, person, liberty or health the spouse is competent (BCCA case says that therefore spouse is compellable)

-At civil trials spouses are competent and compellable

-*NOTE: Even if competent and compellable, a spouse may relay on spousal privilege (s 4(3) of the CEA) when on the stand

“Wife or husband”

-Applies to legally married couples, but does not apply to separated couples with no reasonable hope of reconciliation(Salituro)

-Applies to events before or during a marriage only while the marriage continues to be valid (Hawkins)

Hawkins: Court declined to change common law rule to make spouses competent if the marriage was solemnized after the issuance of the indictment or where an accused marries a witness for the purpose of insulating that witness from being subpoenaed.
Distinct from change in Solituro: this changes would affect the heart of the policy reasons for spousal incompetency (unlike modification in Salituro)
Statements made at prelim when witness was no longer dating accused. They reconciled and got married before the trial

Policy Reasons for the Rule

Four original justifications (Salituro)

-Protects marital harmony (critique: concerns about protecting marital harmony would seem to immunize other familial relationships as well, but the law does not do this)

-“Natural repugnance” of every fair-minded person to the idea that a spouse could be compelled as part of the means to the other’s condemnation (Wigmore)

-Old justification: at law husband and wife are a single person and that they are disqualified on the basis that their interests are identical

Rule in UK & US: spouses are competent but not compellable for the prosecution

Spousal competency rule and the Charter: suggestion in Salituroand Hawkins that where a spouse wishes to testify but is incompetent due to the rule may violate liberty and equality interests guaranteed by the Charter

Direct and Cross-Examination

Testimonial factors: the trier of fact must make inferences regarding the witness’ reliability, including:

-Witness’ use of language

-Sincerity

-Memory

-Perception

Past recollection revived

-A witness may use a memory aid, such as previously-made notes, that act as a trigger for the memory

-The recollection is the evidence, not the memory-aid, which could be inadmissible hearsay (Fliss)

Past Recollection Recorded:

-Although the witness has no present memory, but testifies from a record made in the pertaining to the event

-To be admissible must meet the following 4 requirements (Meddoui):

Must have been recorded in some reliable way
At the time of the recording, it must have been sufficiently fresh and vivid to be probably accurate
The witness must be able to assert that the record accurately represented their knowledge at the time
The original record should be used, if possible

-HF: really it is an established exception to the hearsay rule. It is out of court evidence that opposing counsel can only cross-examine on the procedures followed when the record was made, not the record itself

Obligation to Cross-examine a witness counsel later intends to contradict

If counsel intends to present a totally contradictory version of the events that have been presented by an opposing witness there is a duty to cross-examine that witness and allow them to respond to the version that counsel intends to put forward (the rule in Browne v Dunne)

-If counsel neglected to do this (Moldover):

The witness may be recalled
If the witness is unavailable or it would be impractical to recall the witness a special instruction should be given to the jury that when assessing the uncontradicted second version, they make take into account the fact that the opposing witness was not question about it and they may take this into account when assessing the credibility of the opposing witness

Limits on the foundation for Cross-Examination

-In order to put an other admissible question to a witness during cross-examination, counsel must have a good faith basis for posing the question. It is not necessary that this basis be provable independently (Lyttle)

Question may be based on a reasonable inference, experience or intuition
Trial judge may insist on a voir dire to ensure that a good faith basis exists

-Still subject to parameters of relevancy and materiality

The Failure of an Accused Person to testify

S 4(6): the failure of the accused to testify, or their spouse to testify, shall not be made the subject of comment by the judge or counsel for the prosecution

Policy decision that failure to testify cannot be taken to be evidence against the accused (part of right against self-incrimination and right to silence)

-Defence counsel can emphasize that there is no duty to testify to the jury but cannot express personal belief in the accused innocence