3 - The Exclusive Rules of Evidence Flashcards
The exclusive rules of evidence deal with…
- veracity
- propensity
- hearsay
- opinion
- identification
- improperly obtained evidence
Veracity evidence - In deciding whether evidence as to veracity is substantially helpful, the judge may consider…
- 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
A defendant in a criminal proceeding may offer evidence about his or her veracity . The prosecution may only do so if…
- the defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue and,
- the judge permits the prosecution to do so
In determining whether the prosecution can offer evidence about a defendants veracity, the judge may take into account…
- the extent to which the defendants veracity or the veracity of a prosecution witness has been put in issue in the defendants evidence
- the time that has elapsed since any conviction about which the prosecution seeks to give evidence
- whether any evidence given by the defendant about veracity was elicited by the prosecution
Explain the propensity rule - propensity evidence definition
a) means evidence that tends to show a persons propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved, but
b) does not include evidence of an act or omission that is;
- 1 of the elements of the offence for which the person is being tried or
- the cause of action in a proceeding in question
The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a…
probative value in relation to an issue in dispute in the proceeding, which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant
When assessing the probative value of propensity evidence, the Judge may consider the following..
a) the frequency with which the acts, omissions, events or circumstances which are the subject of the evidence have occurred
b) the connection in time between the acts… etc and the acts, omissions, events or circumstances which constitute the offence for which the defendant is being tried
c) the extent of the similarity between the acts…etc
d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried
e) whether the allegations described in (d) may be a result of collusion or suggestibility
Definition of a hearsay statement
a statement that;
- was made by a person other than a witness
- is offered in evidence at the proceeding to prove the truth of its contents
Definition of statement
Means;
- 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
A hearsay statement is not admissible except…
a) as provided by this subpart or by the provisions of any other Act or
b) in cases where
- this Act provides that this subpart does not apply and
- the hearsay statement is relevant and not otherwise inadmissible under this Act
A hearsay statement is admissible in any proceeding if…
a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable and
b) either
- the maker of the statement is unavailable as a witness or
- the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness
Hearsay admissibility - definition of ‘circumstances’
Circumstances, in relation to a statement by a person who is not a witness, include;
a) the nature of the statement
b) the contents of the statement
c) the circumstances that relate to the making of the statement
d) any circumstances that relate to the veracity of the person and
e) any circumstances that relate to the accuracy of the observation of the person
Hearsay admissibility - definition of ‘unavailable as a witness’
A person is unavailable as a witness in a proceeding if the person;
a) is dead
b) is outside NZ and it is not reasonably practicable for him or her to be a witness
c) is unfit to be a witness because of age or physical or mental condition
d) cannot with reasonable diligence be identified or found
e) is not compellable to give evidence
The rationale of the exclusionary rule is essentially to prevent the admission of unreliable, superfluous or misleading evidence. The justifications for the rule include that:
- 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, which is to draw the necessary inferences from the facts presented in evidence. The opinion evidence could confuse the tribunal of fact and prolong the proceedings.
- a witness’s evidence of opinion may be based on other evidence which, if stated expressly, would be inadmissible (for example, where an opinion is based largely on propensity evidence)
Non-expert opinion evidence, general admissibility.
A witness may state an opinion…
in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard or otherwise perceived.
