Evidence Flashcards
Chapter 9
What is the legal burden of proof in civil cases?
The legal burden of proof lies with the claimant to prove each fact of their case, unless the fact is admitted by the opponent. An exception is if the defendant has been convicted of a relevant criminal offence, in which case the burden shifts to the defendant to disprove their conviction.
What is the standard of proof in civil cases?
The standard of proof is on the balance of probabilities, meaning the judge must be more than 50% certain that the claimant’s version of events is true.
What is a witness statement and what is its purpose?
A witness statement is a written account of the evidence a witness would give orally at trial. It serves to present the witness’s evidence-in-chief, replacing the need for the witness to provide their entire testimony orally.
What are the key requirements for the format and content of a witness statement?
○ Must be headed with case details, witness name, statement number, and date.
○ Include the witness’s address, occupation, and whether the statement is related to their employment.
○ Paragraphs must be numbered, and dates should be in the correct format.
○ Follow a chronological order of events.
○ Be written in the first person and, as much as possible, in the witness’s own words.
○ Indicate which statements are based on personal knowledge and which are based on information and belief, including the source of the information.
○ Include the process by which the statement was prepared.
○ Be verified by a statement of truth.
What is a witness summary, and when might it be used?
A witness summary is a written document containing the witness’s name and address, and the evidence they can provide, or matters they will be questioned on. It is used when a witness statement is difficult to obtain.
What is the general rule regarding opinion evidence from witnesses of fact?
The general rule is that opinion evidence is not admissible. Witnesses of fact should only provide evidence of relevant facts, and not draw conclusions which is the function of the court.
What is an exception to the rule against opinion evidence?
A witness may give a statement of opinion if it is a way of conveying relevant facts they personally perceived. For example, a witness can say they saw a car being driven ‘at about 60 miles per hour’.
What is hearsay evidence?
Hearsay evidence is a statement made outside of court, repeated in court, to prove the truth of the matter stated. It can be oral or written.
Is hearsay evidence admissible in civil proceedings?
Yes, hearsay evidence is admissible in civil proceedings. However, there are notice requirements and the court will assess its weight carefully.
What is the difference between first hand and multiple hearsay?
○First-hand hearsay: Evidence where a witness repeats something they were told by another person.
○Multiple hearsay: Evidence where the information has been relayed through more than one person before it is recorded.
What are the notice requirements when relying on hearsay evidence?
If the party intends to call the witness whose statement contains hearsay, they simply need to serve the other party with the statement. If they do not intend to call the witness, they must serve a hearsay notice to inform the other parties, along with the witness statement, that the witness will not be giving oral evidence.
What is the court’s approach to evaluating hearsay evidence?
The court will consider factors such as:
○ The issue the hearsay addresses.
○ The importance of the issue in the case.
○ Other available evidence on the same issue.
○ Whether it would have been reasonable for the person who made the original statement to have been called as a witness.
○ Whether the original statement was made contemporaneously with the events in question.
○ Whether the evidence involves multiple hearsay.
○ Whether anyone had motive to misrepresent matters.
What is the role of expert evidence in civil proceedings?
Expert evidence can be crucial to the outcome of civil proceedings, often needed to establish breach of contract or to prove damages. Experts are allowed to give opinions based on their expertise.
What is the expert’s duty to the court?
An expert’s duty is to assist the court by providing objective, unbiased opinions on matters within their expertise, and this duty overrides any obligation to the party that instructed them. The expert must not act as an advocate for the party.
What is a single joint expert (SJE), and when is it appropriate?
A single joint expert is one expert instructed by both parties to provide an opinion. It’s often appropriate when it is proportionate, and is likely to assist in resolving the issue more quickly and cost-effectively. It is the norm on the fast track.
