3. The Exclusive Rules of Evidence

Question 1

What is the definition of veracity?

Answer 1

a disposition to refrain from lying, whether generally or in the proceeding.

Question 2

When may a party offer evidence about veracity?

Answer 2

A party may not offer evidence about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity.

Question 3

In deciding whether or not evidence on veracity is substantially helpful, what may the judge take into consideration?

Answer 3

• Lack of veracity on the part of the person when under a legal obligation to tell the truth
• That the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity:
• Any previous inconsistent statements made by the person
• Bias on the part of the person
• A motive on the part of the person to be untruthful.

Question 4

Substantial helpfulness is not a sufficient test in what 2 instances?

Answer 4

• where the prosecution wish to offer evidence about a defendants veracity
• where a defendant offers veracity evidence about a co-defendant

Question 5

what is the definition of propensity ?

Answer 5

evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved

Question 6

In what instances does the Court have discretion to include propensity evidence against a defendant?

Answer 6

if the probative value of the evidence outweighs its prejudicial effect

Question 7

What is the definition of hearsay?

Answer 7

a statement that was made by a person other than a witness and is offered in evidence at the proceedings to prove the truth of its contents

Question 8

When is a hearsay statement admissible (s18)?

Answer 8

• if there is reasonable assurance that the statement is reliable
• the maker of the statement is not available as a witness
• there would be undue expense or delay if the maker of the statement needed to be a witness.

Question 9

In relation to the reliability of hearsay statements, what are some reasons why hearsay evidence is generally excluded?

Answer 9

• Where the maker of a statement is not called as a witness, there is no opportunity to cross-examine them regarding its contents, the circumstances in which it was made, and so on.
• the concern that juries cannot evaluate evidence properly without being able to see the demeanour of the person who made the statement in question.
• There is a danger that witnesses will make mistakes about the meaning or contents of statements made by other people.
The reason for the rule is the danger of attributing undeserved weight to evidence that cannot be adequately or properly tested

Question 10

What criteria must be established for non-expert opinion to be admissible (s24)?

Answer 10

• opinion must be the only way in which to effectively communicate the information to the finder of fact
• the witness must be stating an opinion from something personally perceived.

Question 11

If evidence is opinion evidence, what must it be in order to comply with s25?

Answer 11

• be that of an “expert”
• comprise “expert evidence”
• offer substantial help to the fact-finder in understanding other evidence of ascertaining any fact in the proceeding

Question 12

what is the definition of an expert?

Answer 12

a person who has specialised knowledge or skill based in training, study or experience

Question 13

What must defence do if they plan on calling on expert evidence?

Answer 13

they must give notice of expert evidence and they must disclose a brief of evidence or report at least 14 days before the date is fixed for the trial.

Question 14

What do the exclusive rules of evidence deal with?

Answer 14

veracity, propensity, hearsay, opinion, identification, improperly obtained evidence

Question 15

When assessing the probative value of propensity evidence, what may a Judge take into consideration?

Answer 15

• frequency of the acts, omissions, events, or circumstances (AOEC)
• connection in time between the AOEC
• similarity between the AOEC
• # of people making similar allegations against the defendant
• whether the allegations may be the result of collusion or suggestability
• extent to which the AOEC are unusual

Question 16

What is the definition of circumstances in relation to a hearsay statement, s16(1)?

Answer 16

Circumstances, in relation to a statement by a person who is not a witness, include:

• nature of the statement
• contents of the statement
• circumstances relating to the making of the statement
• circumstances relating to the veracity of the person
• circumstance relating to the accuracy of the observation of that person

Question 17

What is the premise of the general exclusionary rule for opinion?

Answer 17

Opinions are not admissible to prove the truth of what is believed or inferred. This rule is to prevent the admission of unreliable, superfluous or misleading evidence

Question 18

What is the rationale behind the justification for the exclusionary rule for opinion?

Answer 18

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

Question 19

When is a witness unavailable?

Answer 19

• is dead
• is outside NZ and not practicable to return
• unfit due to age, physical or mental condition
• cannot with reasonable diligence be located
• not compellable

Question 20

What are the exceptions to propensity?

Answer 20

• Evidence of an act or omission that is one of the elements of the offence for which the person is being tried or the cause of action in the proceeding in question
• Evidence that is solely or mainly about veracity

Question 21

When can the prosecution offer evidence about a defendants veracity?

Answer 21

• if the defendant has offered evidence about their veracity or has challenged the veracity of a witness
• if the judge permits the prosecution to do so