3. The Exclusive Rules of Evidence

Question 1

The exclusive rules of evidence deal with:

Answer 1

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

Question 2

Veracity

Answer 2

a. lack of veracity on the party of the person when under a legal obligation to tell the truth
b. that the person has been convicted of 1 or more offences that indicate a propensity for dishonestly 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 3

Propensity evidence does not include

Answer 3

• evidence of an act or omission that is one of the elements of the offence for which the person is being tired
• evidence that is solely or mainly about veracity

Question 4

Hearsay

Answer 4

A statement that
a. was made by a person other than a witness AND
b. is offered in evidence at the proceeding to prove the truth of its content

Question 5

Reliability - The rationale rule against hearsay lies in the lack of reliability of hearsay evidence

Answer 5

• Where the maker of the statement is not called as a witness and is unable to be cross-examined
• Concerns that juries cannot evaluate evidence properly without being able to see the demeanor of the person who made the statement in question.
• Danger that witness will make mistake about the meaning or content of statements made by other people. Game of “Chinese Whispers”

Question 6

Definition of Circumstances s16(1)

Answer 6

a. nature of the statement
b. contents of the statement
c. circumstances that relate to the making of the statement
d. circumstances that relate to the veracity of the person
e. circumstances that relate to the accuracy of the observation of the person

Question 7

Define - Unavailable as a Witness

Answer 7

a. dead
b. outside of NZ
c. unfit due to age, physical or mental condition
d. cannot be found
e. is not compellable to give evidence

Question 8

The general exclusionary rule

Answer 8

The rationale of the exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence.

• Witness offers a bare opinion it holds little probative weight
• A danger that a witness offering opinion evidence will ‘usurp’ that function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence. Could confuse the tribunal and prolong proceedings
• A witness evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible

Question 9

Non expert opinion evidence

Answer 9

Statement of opinion must fulfil two basic criteria
* opinion must be the only way in which to effectively communicate the information to the finder of fact
* witness must be stating an opinion (be in conclusion, inference) from something personally perceived

Question 10

Qualification as an expert

Answer 10

Expert is a person who has “specialised knowledge or skills based on training, study or experience”

Judge determines whether expert witness is properly qualified to testify; opinions given by non-experts on mater calling for expertise are inadmissible.