Exclusive Rules of Evidence Flashcards
Most of the laws of evidence concern things that cannot be given in evidence. List the matters that the exclusive rules of evidence deal with:
- Hearsay
- Opinion
- Propensity
- Veracity
- Identification
- Improperly obtained evidence
Section 37(3) Evidence Act 2006 - When considering evidence offered about the veracity of a person is substantially helpful, what may the judge consider?
- Lack of veracity on the part of the person when under a legal obligation to tell the truth
- That the person has a conviction of 1 or more offences that indicate propensity for dishonestly or lack of veracity
- Any previous inconsistent statement made by the person
- Bias on the part of the person
- A motive on the part of the person to be untruthful
Section 38(2) - The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if:
- The defendant has offered evidence regarding their veracity or has challenged the veracity of a prosecution witness, and
- The judge permits the prosecution to do so
What does propensity evidence mean?
Means evidence that tends to show a person’s propensity to act in a particular way or in a particular state of mind, being evidence of acts, omissions, events or circumstances with which a person alleged to have been involved.
What does propensity evidence include?
- Propensity as to actions
- Propensity as to state of mind
What does propensity evidence exclude?
- 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 the action in the proceeding in question
- Evidence that is solely or mainly about veracity
What is the propensity rule?
- Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omission, events or circumstances with which a person is alleged to have been involved but
- Does not include evidenece of an act or omission that is
1. One of the elements of the offence for wihch the person is being tried or
2. The cause of action in the proceeding in question
Probative value - What is the test for admissibility?
The test for admissibility is whether 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.
The court has a discretion to include propensity evidence againt a defendant if: (M/C)
The probative value of the evidence outweighs its judicial effect.
The rationale of the rule against hearsay evidence lies in the lack of reliability of hearsay evidence. List three reason for the rule against hearsay evidence.
- Where themake of the statement is not called as a witness, there is no opportunity to cross-examine that person regarding the content, the circumstances in which it was made and so on.
- Juries cannot evaluate evidence properly without being able to see the demeanour of the maker of the statement in question.
- There is a danger that the witness will make mistakes about the meaning or content of the statements made to other people.
Circumstances, in relation to a statement by a person who is not a witness, includes:
- The nature of the statement
- The content of the statement
- The circumstances that relate to the: making of the statement, veracity of the person, accuracy of the observatin of the person
List 4 reasons why a witness may be unavailable as witness or define what is meant by an unavailable witness
- Is dead
- Is outside of NZ and is not practiable for him or her to be a witness
- Is unfit to be a witnes because of age or physical or mental condition
- Cannot with reasonable dilignce be identified or found
- Is not compellable to give evidence
A peraon is unavailable as a witness when. (M/C)
The person is overseas and can’t be contacted
Under Section 16(1), a business record means 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 reorced of that business.
- From information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have, personal knowledge of the matters dealt with in the information he or she supplied.
The exclusionary rule is essentially to prevent the admission of unreliable, superfluous, or misleading evdience (Opinion). The justifications for that include.
- Where a witness offers a bare opinion, it holds little probative weight
- There is a danger that 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 proceedings
- A witness’s evidence of opinion may be based on other evidence which if stated expressley would be inadmissible
