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EVIDENCE > EXCLUSIVE RULES of EVIDENCE > Flashcards

EXCLUSIVE RULES of EVIDENCE Flashcards

1
Q

What do the exclusive rules of evidence deal with?
(6 things)

A

HIIPO-V

(1) Hearsay
(2) Identification
(3) Improperly obtained evidence
(4) Propensity
(5) Opinion
(6) Veracity

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2
Q

What are the 2 parts to CHARACTER EVIDENCE?

A

VERACITY - disposition to refrain from lying
PROPENSITY - Tendency to act in a particular way

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3
Q

Give examples each of when Propensity evidence and Veracity evidence rules don’t apply?

A

Veracity - a trial for PUGERY where veracity is part of the offence

Propensity - a BAIL hearing.

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4
Q

Which do veracity rules focus on: truthfulness or accuracy?

A

Truthfulness

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5
Q

What are the 4 Veracity Rules according to s37:

A

(1) Evidence about a persons veracity may not be offered unless it is SUBSTANTIALY HELPFUL
(2) The veracity evidence must comply with s38 and/39
(3) Judge may decide HELPFULNESS based on:
(a) Lack of previous veracity when under LEGAL OBLIGATION
(b) Previous CONVICTIONS relating to lack of veracity
(c) Previous inconsistent STATEMENTS
(d) BIAS
(e) MOTIVE to be untruthful

(4) Party who calls a witness:
(a) may not offer evidence to challenge their veracity unless the Judge has called them hostile
(b) may offer evidence as to the facts in issue contrary to the evidence of the witness

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6
Q

Do the veracity rules seek to control evidence about ACCURACY of a statement?

A

No. Their sole focus is on TRUTHFULNESS.

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7
Q

Can a party offer evidence to challenge the veracity of their witness?

What is the exception?

What Act and Section provides for this?

A

The Evidence Act 2006 section 37(4)(a)

No, not unless the judge has declared them hostile.

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8
Q

Can a party offer contrary evidence to their witness as to the facts at issue in the case?

A

Yes. Contrary evidence is permissible,

(but evidence that challenges the veracity of their witness is not permissible).

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9
Q

Why is “SUBSTANTIALLY HELPFULNESS” regarded as a higher standard than RELEVANCE?

A

Because it needs to do more than just have a TENDANCY to prove or disprove something.

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10
Q

With regard to VERACITY:
What are the two instances where SUBSTANTIAL HELPFULNESS is not a sufficient test for admissibility:

A

(1) Where the prosecution wants to offer evidence about a DEFENDANTS veracity.
(2) Where a defendant offers veracity evidence about a CO-DEFENDANT.

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11
Q

Can a defendant offer evidence about their own veracity?

What Act and Section provide for this.

A

Evidence Act 2006 s38.

Yes. Only if it is SUBSTANTIALY HELPFUL.

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12
Q

What two conditions must be met before the prosecution may offer evidence of the defendants veracity?

A

Section 38

(1) The defendant has offered evidence of his veracity. Or, has challenged a prosecution witnesses veracity by reference other than the facts in issue.
AND
(2) The Judge permits the prosecution to do so.

The defendants veracity must be in issue.

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13
Q

According to s38(3), what three criteria must the Judge consider before ALLOWING the prosecution to offer evidence as to the defendants veracity?

A

(1) The extent to which the veracity has been put IN ISSUE
(2) TIME ELAPSED since conviction
(3) Whether the defendants veracity evidence was ELICITED by the prosecution.

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14
Q

Can the prosecution offer evidence about the defendants veracity, if the defendant has raised the issue by attacking the prosecution witness by referencing a FACT IN ISSUE?

A

Yes.
s38(2)(a)

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15
Q

What sections govern evidence of PROPENSITY?

A

40-43

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16
Q

What section is the PROPENSITY RULE found?

A

40

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17
Q

What is provided in the PROPENSITY RULE:

A

The propensity rule lays out:
(1) The definition of what is and what is not propensity evidence
(2) When it can and when it can not be offered

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18
Q

What is PROPENSITY according to s40(1)(a)?

A

Propensity evidence means evidence that tends to show a person’s propensity to:
(1) Act in a particular way or to have a particular state of mind, being evidence of,
(2) acts, omissions, events, or circumstances with which a person is alleged to have been involved

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19
Q

According to s40(1)(b), what does propensity evidence not include?

A

Evidence of an act or omission that is:
(i) One of the ELEMENTS of the offence for which the person is being tried; or
(ii) the CAUSE of action in the proceeding in question

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20
Q

According to s40(2), can any party offer propensity evidence?

A

Yes. However, it must conform to sections 41-44.

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21
Q

Can s7 and s8 prevent propensity evidence from being offered?
If so, give an example?

A

Yes. For example s7 would prevent propensity evidence from being offered if it were not RELEVANT to the facts of the case.

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22
Q

Give examples of a propensity as to a state of mind:

A

A lack of inhibition
A love of violence

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23
Q

What are the two types of propensity:

A

(1) Propensity to ACTIONS
(2) Propensity to a STATE OF MIND

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24
Q

How would propensity evidence be dealt with if it was MAINLY concerned with veracity?

A

The veracity rule would be applied instead of the propensity rule.

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25
Q

What is the GENERAL RULE of propensity evidence?

A

s40(2)
Any party may offer propensity evidence

(within the bounds of s40(3))

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26
Q

According to s41(1), can a defendant offer propensity evidence about himself?
And is the evidence restricted to “good character” evidence or can evidence of disreputable conduct or neutral conduct also be offered?

A

The defendant can offer propensity evidence of any kind.

(This may be done for tactical reasons and is permissible)

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27
Q

What opens the door for prosecution to offer propensity evidence about the defendant?
What else will give prosecution the ability to offer propensity evidence?

A

(1)
S42 The defendant offering propensity evidence about himself will open this door.

(2)
Section 43 provides additional opportunity for prosecution to offer propensity evidence if the probative value outweighs the risk that evidence will unfairly prejudice the defendant

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28
Q

43(1)
When may the prosecution bring PROPENSITY EVIDENCE?

A

When the PROBATIVE value outweighs the PRJUDICIAL effect on the defendant.

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29
Q

43(2)
What must the Judge do before considering the matters in 43(2)?

A

The Judge must take into account the nature of the issue in dispute.

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30
Q

43(3)
What are the 6 considerations the Judge must give when assessing the probative value of PROPENSITY

Fred, Tim, and Sim; Three Unusual Suggestions.

A

(a) Frequency
(b) Connection in TIME
(c) Similarity between acts
(d) Number of accusers
(e) Collusion / Suggestability
(f) Unusualness

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31
Q

43(4)
What PREJUDICIAL considerations must the Judge take into account:

A

(a) Unfairly PREDISPOSE the fact finder
(b) DISPROPORTIONATE WEIGHT

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32
Q

What 3 elements did REI v R say were required before bringing propensity evidence:

A

(a) Evidence must show propensity to ACT or THINK a certain way
(b) PROBATIVE value
(c) PREJUDICIAL effect

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33
Q

In M v R what must the Judge IDENTIFY, OUTLINE and WARN the jury agsinst before they proceed with propensity evidence:

A

Identify RELEVANCE
Outline the COMPETING POSSITIONS
Warn against ILLEGITIMATE REASONING PROCESSES

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34
Q

Can 43(2) outweigh 43(1)?

A

Yes, despite the wording of s43(1), the prosecution may offer propensity evidence about a defendant under s43(2) if the requirements are satisfied.

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35
Q

Is evidence elicited through cross-examination another form of offering evidence to the court?

A

Yes

36
Q

What is SIMILAR FACT EVIDENCE in relation to giving propensity evidence?

A

It’s where the accused has committed similar crime in the past. This previous wrongdoing can be taken into account.

37
Q

What’s the PREDUDICIAL EFFECT difference between s8 and s43(1)?

A

Section 8 is concerned about the predudicial effect on PROCEEDINGS

Section 43(1) is concerned about the prjudicial effect on the DEFENDANT only.

38
Q

UNFAIRNESS generally carries with it a risk that the jury will use it in what 2 ways:

A

(1) for an IMPROPER PURPOSE
(2) IMPERMISSIBLE PROCESS of REASONING

39
Q

Whose responsibility is it to satisfy the court that the probative value of the propensity evidence outweighs the risk of an unfair prejudicial effect on the defendant?

A

Prosecution.

40
Q

Is prior wrongdoing eligible to be used as propensity evidence if it did not result in a conviction?

A

Yes, although this may affect the probative value.

41
Q

Is conduct subsequent to the present offending, eligible as propensity evidence?

A

Yes.

42
Q

Is the list provided in s43(3) exhaustive?

A

No

43
Q

S4, how is HEARSAY defined:

A

A statement
(a) made by a person other than the witness
(b) offered as evidence to prove the truth of its contents

44
Q

S(4) how is a statement defined:

A

(1) a SPOKEN or WRITTEN assertion
(2) NON-VERBAL conduct intended to be an assertion of any matter.

45
Q

When can hearsay statements be admitted:

A

(1) When provided for in any Act
(2) In situations where the hearsay rules don’t apply (s17).

46
Q

What is a WITNESS?

A

Someone who gives evidence and can be cross-examend

47
Q

What makes the hearsay rule important?

A

The inability to test the credibilty and accuracy of the statement maker. (Cross-examine the maker of the ststement)

48
Q

When is a statement not a statement?
Can such non-statements be hearsay?

A

When it was not intended to be an assertion.

These statements can not be ruled as hearsay.

49
Q

Can it be hearsay to produce a statement as evidence that the statement was made?

A

No

50
Q

What section provides for the admissibility of hearsay evidence and what two criteria does it require to be satisfied before the hearsay evidence is offered?

A

s18 of the Evidence Act:
* Reasonable assurance of RELIABILITY
* UNAVAILABILITY of the witness or undue expense or delay for then to appear.

51
Q

RELIABILITY can be broken down into three concerns that may arise when a witness is not present to give their evidence:

A

(1) No opportunity to CROSS-EXAMINE
(2) Jury can’t see the DEMEANOUR of the statement maker
(3) INACCURACIES, the Chineese Wispers effect.

52
Q

When considering the issue of RELIABILITY of hearsay evidence, what is meant by the term, “Reasonable Assurance”?

A

RELIABLE ENOUGH for the fact finder to consider it.

53
Q

What section deals with Circumstances in relation to a statement by a person who is not a witness?
And what are the 6 circumstances:

(Nature of the content and making veracity accurate)

A

Section 16(1):
The circumstances 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 statement
(e) Any circumstances that relate to the ACCURACY of the observations of the person.

54
Q

16(1)
What are some circumstances relating to the MAKING of the statement:

A

• Physical environment
• How long after the event
• Relationsip between the maker and the witness.

55
Q

16(2)
What are the 5 reasons why a witness would be UNAVAILABLE:

A

(a) Dead
(b) Outside NZ
(c) UNFIT due to age, physical or mental condition
(d) Cant be IDENTIFIED or FOUND
(e) Not COMPELLABLE

56
Q

What are 2 examples of a person who can not be compelled to give evidence:

A

• Sovereign
• Defendant

57
Q

If a party renders a witness unavailable, can they then use s16(2) to have that witnesses evidence offered as an exception to the hearsay rule?
What section provides for this?

A

No, s16(3) prevents this.

58
Q

s19(1)
What is a business record?

A

A document made
• in the course of business as a record
• from information supplied by a person who had personal knowledge of the matter.

59
Q

19(1)
Give an example of a business record?

A

A police officers notebook or job sheet

60
Q

19(1)(b)
Why might a Judge not require a witness to appear in relation to a business record that they entered:

A

The witness may be regarded as unlikely to remember making the record or the details on the record, due to the passage of time.

61
Q

Notice of hearsay must be given in order to have a hearsay statement admitted under either of which two sections of the Evidence Act:

A

18 & 19

62
Q

What is the rationale behind giving notice that a hearsay statement is to be offered?

A

To encourage admissibility decisions concerning hearsay to BE MADE PRE-TRIAL.

63
Q

s23 Opinion Rule
What premise is the general exclusion rule based on:

A

That the witnesses OPINIONS are not their perceptions but are CONCLUSIONS drawn from those perceptions.

64
Q

How is OPINION defined by s4?

A

“A statement of opinion that tends to prove or disprove a fact”

65
Q

What is the rationale behind the exclusionary rule?

A

To prevent unreliable, superfluous, misleading or irrelevant evidence.

66
Q

Opinion evidence:
What three justifications support the exclusionary rule:

A

(1) A witnesses opinion holds little PRBATIVE WEIGHT
(2) Danger that opinion will USURP the finding of FACT
(3) Opinion may be based on INADMISSABLE EVIDENCE

67
Q

Opinion Evidence:
What three justifications support the exclusionary rule:

A

(1) A witnesses opinion holds little PRBATIVE WEIGHT
(2) Danger that opinion will USURP the finding of FACT
(3) Opinion may be based on INADMISSABLE EVIDENCE

68
Q

s24 General Admissibility of Opinion
What grounds are provided for a non-expert witness to give opinion?

A

When it is necessary for them to communicate their evidence and be understood.

69
Q

What are the two criteria that need to be satisfied before non-expert opinion evidence can be offered:

A

(1) Must be the only way to effectively communicate
(2) The opinion must be from something PERSONALLY perceived.

70
Q

List 4 examples of non-expert opinion evidence that will generally be accepted by the court:

eg. Opinion about age.

A

Height
Distance
Time elapsed
Condition (new, old, used)
Speed
Emotional state
Weather
Identity

71
Q

When is an EXPERT not allowed to offer OPINION?

A

When the facts can be stated WITHOUT OPINION

72
Q

s25 Admissibility of Expert Evidence
When would expert evidence be admissible?

A

When the opinion is
• that of the EXPERT
• COMPRISE expert evidence, and
• likely to be SUBSTANTIALY HELPFUL

73
Q

Who is an EXPERT?

A

A person who has:
• Specialised KNOWLEDGE or SKILL
• Based on TRAINING, STUDY or EXPERIENCE

74
Q

s25(1)
Opinion evidence will be SUBSTANTIALY HELPFUL if it helps the fact finder in what two ways:

A

(1) Understand other evidence
(2) Acertain facts of consequence in DETERMINING proceedings

75
Q

Whose responsibility is it to demonstrate the qualifications of an expert witness?

A

The expert witness needs to show the court they have the necessary qualification.

76
Q

It is possible that an expert witness may be misinformed or may not have considered relevant facts when forming their opinion. What must the expert witness do to reassure the fact finder that the opinion is sound and of value?

A

Provide the facts that the witness has used to form their opinion.

77
Q

What should an expert witness do where current knowledge does not allow an opinion? And why?

A

The expert should indicate that he cannot express a view.

Because, in the absence of a factual basis, the opinion evidence may carry so little weight that it will not be relevant.

78
Q

s14
What is PROVISIONAL ADMISSIBILITY?

A

Opinion Evidence that has been given admissibility conditional on the basis that it will be proved. If it does not get proven then the opinion must be disregarded.

79
Q

Under s18, can a Judge decide whether a published document is reliable or not?

A

Yes.

80
Q

S25(4)
If an expert provides opinion evidence about a persons sanity, is that expert allowed to evidence their opinion by referring to a statement made by the person?

If so, is that statement subject to the hearsay rule?

A

Yes. The expert can use this as evidence supporting their opinion.
No. The statement is exempt under section 25.

81
Q

If a defendant wants to call an expert witness, what must the defence do and by what time?

A

The defence must disclose the BRIEF OF EVIDENCE or a SUMMARY, and do so at least 14 days before the trial.

82
Q

The Evidence Act 2006 divided the Common Law “Character Evidence” into two classes of evidence. What are they:

A

Veracity - a disposition to refrain from lying.
Propensity - a tendancy to act in a particular way

83
Q

What are the two criteria for admissibility of hearsay:

A

RELIABILITY and UNAVAILABILITY (or undue expense/delay).

84
Q

In criminal proceedings a notice of hearsay must be served on the other party so they have sufficient time to prepare. Which party has this responsibility if they which to offer hearsay evidence?
(a) The defence only
(b) The prosecution only
(c) The party bringing the hearsay evidence, regardless whether they are the prosecution or the defence

A

(c)

85
Q

Opinion evidence is not usually accepted. Which two sections provide exception:

A

Section 24 and 25.

EVIDENCE (5 decks)

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