Exclusive Rules of Evidence Flashcards
Most of the laws of evidence concern the things that cannot be given in evidence. The exclusive rules of evidence deal with (VOIPHI):
- Veracity
- Propensity
- Hearsay
- Opinion
- Identification
- Improperly obtained evidence
S37(3) EA06 - In deciding whether or not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider - ((PI)C(MU)LB)
- Lack of veracity on the part of the person when under a legal obligation to tell the truth (e.g., in an earlier proceeding or in a signed declaration)
- 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
S38(2) - The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if:
- The defendant has offered evidence about his 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
What does propensity evidence mean, and what does it exclude and include (s40 EA06)?
Means evidence that tends to show a person’s 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.
Does not include evidence of an act or omission that is -
a) 1 of the elements of the offence for which the person is being tried; or
b) the cause of action in the proceeding in question; or
- Evidence that is solely or mainly about veracity.
Does include:
- Propensity as to actions, or as to state of mind
S43 EA06 - Propensity - Probative Value - What are the requirements for the admission of propensity evidence under s43 EA? The evidence must:
a) constitute “propensity evidence”, that is evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances in which the appellant is alleged to have been involved;
b) have a probative value “in relation to an issue in dispute” and other matters that may be relevant, including those prescribed in s43(3); and
c) have a probative value that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
S43 EA06 - What must/may the Judge take into account and consider? (NOI - SCNAFU - UPDW)
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) 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 AOEC WATSOTEAT AOEC which constitute the offence for which the defendant is being tried:
c) the extent of the similarity between the AOEC WATSOTEAT AOEC WCTOFWTDIBT:
d) the number of persons making allegations against the defendant that are the same as, or similar to, the subject of the offence FWTDIBT:
e) whether the allegations described in (d) may be the result of collusion or suggestibility:
f) the extent to which the AOEC WATSOTEAT AOEC WCTOFWTDIBT are unusual.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider -
a) whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
b) whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions
The rationale of the rule against hearsay lies in the lack of reliability of hearsay evidence. List three reasons for the rule against hearsay (XCD):
- 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 rule addresses 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 game of ‘Chinese Whispers’, where inaccuracies and mistakes are created through the repetition of a phrase amongst a group of people, is illustrative of this point.
S16(1) EA06 - Defines circumstances as - (NCCCC)
Circumstances, in relation to a statement by a person who is not a witness, include -
a) the nature of the statement; and
b) the contents of the statement; and
c) the circumstances that relate to the making of the statement; and
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
S16(2) EA06 - Defines unavailable as a witness as - (DOUCN)
A person is unavailable as a witness in a proceeding if the person -
a) is dead; or
b) is outside NZ and it is not reasonably practicable for him or her to be a witness; or
c) is unfit to be a witness because of age or physical or mental condition; or
d) cannot with reasonable diligence be identified or found;
e) is not compellable to give evidence
S16(1) EA06 - Defines business record as -
A document that is made:
- To comply with a duty; OR
- In the course of a business, and as a record or part of a record of that business; AND
- From information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied.
Opinion rule - The exclusionary rule is essentially to prevent the admission of unreliable, superfluous, or misleading evidence. The justifications for that rule include:
- Where a witness offers a bare opinion it holds little probative weight
- The opinion evidence could 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 (e.g., where an opinion is based largely in propensity evidence).
S24 EA06 - Define the general admissibility of opinions (non-expert opinion evidence)
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.
May include topics such as identity, speed, emotional state, weather, age (AWISE), and so on, but the list of areas in which non-expert opinion evidence is admissible is not limited.
In order to be admissible under s24, the 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 the fact.
- the witness must be stating an opinion (be it conclusion, inference etc) from something personally perceived.
Expert opinion - If the evidence is opinion evidence, then in order to comply with s25, the opinion must:
- be that of an expert
- comprise expert evidence; and
- offer substantial help to the fact-finder in understanding other evidence or in ascertaining any fact in that is of consequence to the determination of the proceeding.
Define an expert witness
A person who has specialised knowledge or skill based on training, study, or experience.
The expert is required to demonstrate to the court that they have the requisite qualifications to be deemed an expert in the field in question.
Evidence offered by an expert should be within their area of expertise.
