3 . The exclusion rule of evidence

Question 1

What are the 6 areas that the exclusion rule deal with

Answer 1

• Veracity
• Propensity
• Hearsay
• Opinion
• Identification
• Improperly obtained evidence

Question 2

Veracity

Answer 2

A disposition to refrain from lying eeither generally or in proceedings

Question 3

Propensity

Answer 3

The tendency to act in a particular way or have a particular state of mind in relation to any acts, circumstances or events and includes evidence in which the person is alleged to have been involved.

Question 4

What section covers the veracity rules

Answer 4

Section 37 EA 06 which states that a party may not offer evidence in civil or criminal proceedings to a persons veracity unless the evidence is substantially helpful in determinning the persons veracity.

Question 5

What will the judge determine to admit evidence to a persons veracity

Answer 5

• A persons legal obligation to tell the truth. IE. Gave evidence in earlier proceedings or another signed declaration.
• person has been convicted of one or more dishonest offences
• any previous inconsistant statements
• Bias as to part of the person
• motive of a person to be untruthful

Question 6

What are the two things a party may or maynot do when calling a witness in relation to veracity

Answer 6

• May not offer evidence to chanllange a witnesses veracity unless the judge determines the witness hostile.
• May offer evidence as to the facts in issue contrary to the evidence of the witness.

Question 7

When will a judge deem evidence substantially helpful in determining a person veracity

Answer 7

I section 37(3)(a-e)

(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (for example, in an earlier proceeding or in a signed declaration):
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
(c) any previous inconsistent statements made by the person:
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful

Question 8

What section covers veracity against the defendant

Answer 8

Section 38 EA06

Question 9

When can the prosecution offer evidence against the defendants veracity?

Answer 9

The def hasd offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other then the facts in issue and
- hte judge allows the prosecution to do so.

Question 10

Propensity section and meaning

Answer 10

Section 40 (a) propensity evidence means evidence that tends to show a persons propensity to act in a particular way of have a particular state of mind, being evidence of acts, events, omissions or circumstances

Question 11

What does section 41 EA cover

Answer 11

This section covers the propensity evidence about a defendant.

(1) a defendant in a criminal proceeding may offer propensity evidenc about themselves (ie good evidence of good behaviour)
(2) If defendant offers propensity evidence about themselves, the prosecution or any other party, with permnission of the judge may offer propensity evidence about the defendant.

Question 12

What does section 41 EA cover

Answer 12

This section covers the propensity evidence about a defendant.

(1) a defendant in a criminal proceeding may offer propensity evidenc about themselves (ie good evidence of good behaviour)
(2) If defendant offers propensity evidence about themselves, the prosecution or any other party, with permnission of the judge may offer propensity evidence about the defendant.

Question 13

What does section 43 EA 06 cover

Answer 13

The prosecution may offer propensity evidence about a defendant in a criminal proceedings only if the evidence has a probative value which outweighs the risk that that evidence may have an unfairly prejudicial effect on the defendant.

Question 14

Under section 43 EA 06. Describe the ways to assess the probative value of propensity evidence

Answer 14

• The frequency to which the acts, omissions, events and circumstances have occurred.
• The connection in time between the acts, omissions, events or circumstnaces.
• The similarity between the acts
• the number of persons making the allegation against the defendant

Question 15

What are the 3 requirements for propensity evidence to be admitted Section 43 (4)

Answer 15

• Constitute propensiity evidence. IE that the evidence tends to show a person propensity to act in a particular way or have a particular state of mind.
• Have a probative value in relation to the issues in dispute
  Have a probative value that outweighs the risk that the evidence will have an unfair prejudical effect on the defendant.

Question 16

Define hearsay statement under section 4 of EA 06

Answer 16

A hearsay statement is a statment that

(a) was made by a person other than a witness, and
(b) Is offered in evidence at proceedings to prove the truth of its contents.

Question 17

Define a statement

Answer 17

A spoken or written assertion by a person of any matter or,

- non verbal conduct of a person that is intended by that person as an assertion of any matter.

Question 18

Under section 18, when will a hearsay statement be admissable

Answer 18

S18(1)(a) when the circumstances relating to the statement provide reasonable assurance that the statement is reliable AND

(b) either
(i) the maker of the statement is unavailable as a witness
(ii) The judge considers that there will be undue expense or delay if the maker of the staatement is required as a witness.

Question 19

Discuss the circumstances of a hearsay evidence under section 16 (1)

Answer 19

• the nature of the statement
• The contents of the statement
• Circumstances that relate to the making of the statement
• Circumstances that relate to the veracity of the person
• Circumstances that relate to the accuracy of the observation of the person.

Question 20

Under section 16(2) when is someone deemed unavailable as a witness?

Answer 20

• Dead
• is outside NZ and it is not reasonably practical for them to be a witness
• Unfit due to age, physical or men tal conditions
• Cannot be identified or found
• Is not compellable to give evidence

Question 21

What does sectin 23 refer to

Answer 21

The inadmissability of a statement of opinion unless provided by section 24 and 25.

Question 22

How does the Evidence act describe the term opinion evidence

Answer 22

A statement of opinion tends to prove or disprove a fact.

Question 23

Why would opinion evidence be inadmissable

Answer 23

To prevent he admission of unreliable or misleading evidence

Question 24

What are the two critieria that must be meet for opinion evidence to be admitted under section 24

Answer 24

• The opinion must be the only way in which to communicate the information to the fact finding
• The witness must be stating an opinion from something personally perceived ( Maybe conclusive or inference).
  Ie chose someone from a line out as they believed they were the one they saw, or when asked if they believed someone was going to fast before a crash could be defined as as opinion evidence

Question 25

Discuss section 25 of EA06 and what must be meet

Answer 25

This section has to do with expert opinion evidence.

For it to meet the criteria of this section, the opinion must:

• From an expert
• Comprise expert evidence
• Offer substantial help to the fact-finding in understanding other evidence.

Question 26

Define an expert

Answer 26

One who has speciialised knowledge or skill based on training, study or experience.

Question 27

When will expert opinion evidence be classified as helpful

Answer 27

• When it helps understand other evidence or

- in ascertaining any fact that is of consequence in the determination of the proceedings.

Question 28

List the 6 exclusive rules of evidence deal with

Answer 28

Veracity
Propensity
Hearsay
opinion
identification
improperly obtained evidence

Question 29

The evidencce act 06 divides what was called character evidecnce at common law into two categories

Answer 29

• Veracity - The dispositon to refrain from lying

Propensity - The tendency to act in a particular way or have a particular state of mind.

Question 30

List the two criteria for admissibility of hearsay evidence

Answer 30

That the hearsay evidence is reliable and witness unavialability or that there would be an undue expense or delayv would occur

Question 31

Does a hearsay notice have to be served on the other party

Answer 31

Yes, if a hearsay statement is to be used then the other party needs to be notified about it prior to the proceedings in order to allow the other party time to respond to it.

Question 32

Is opinion evidence usually admissably

Answer 32

Opinion evidence is not usually admitted as it maybe unreliable or misleading but maybe admitted if it meets the criteria of section 24 and 25.

Question 33

What is the general rule of evidence?

Answer 33

That all facts in issue or facts relevant to the facts in issue must be proven by evidence.

Question 34

what are the two exceptions to the general rule of evidence?

Answer 34

If the evidence has been given judicial notice or the facts have been formally accepted.

Question 35

What is defined as Judicial notice

Answer 35

A judge and jury may take notice to facts that are so wlel known and accepted either generally or locally that the can not reasonable be questioned. IE christmas day S128 (1) covers this as Notice of uncontroverted facts.

Question 36

What is the propensity rule of evidence?

Answer 36

Propensity evidence is evidence that tends to show a persons propensity to act in a particular way or of a particular state of mind, being evidence of acts, omission, events or circumstance in which the person is alleged to have committed but does not include evidence that is one of the elements in which the person is being tried.

Question 37

Define what a hearsay statement is under section 4 EA 06

Answer 37

A hearsay statement is a statement made by a person other than a witness and is usually admitted to prove the truth of its contents.

Question 38

Define an expert witness

Answer 38

An expert witness is someone who has a particular skills and knowledge obtained through training, study or experience.