Exclusive Rules Of Evidence Flashcards
The exclusive rules of evidence deal with
- Veracity,
- propensity,
- hearsay,
- opinion,
- identification,
- improperly obtained evidence
Veracity Rules
section 37
The judge may consider whether the proposed evidence shows: (5 points)
In relation to evidence about the veracity of a person being substantially helpful, the judge may consider whether the proposed evidence shows:
- The lack of veracity of the person when under a legal obligation to tell the truth.
- Previous convictions that indicate a lack of veracity.
- Previous inconsistent statements made by that person.
- Bias of the person.
- A motive to be untruthful.
Sec 38 Evidence of defendant’s veracity:
In order to be able to offer evidence of a defendant’s veracity,
In order to be able to offer evidence of a defendant’s veracity,
- the prosecution must show that veracity is relevant and will only be granted if the defendant’s veracity is in issue.
- The defendant has offered evidence about his or her veracity or has challenged the veracity of a prosecution witness by reference to matters other than the facts in issue.
- The proposed evidence must meet the substantial helpfulness test.
- The prosecution must get permission from the judge to offer the evidence.
Sec 38 Evidence of defendant’s veracity:
In deciding whether to allow the prosecution to question the defendant about their veracity, the judge may consider:
In deciding whether to allow the prosecution to question the defendant about their veracity, the judge may consider:
- The extent to which the defendant’s veracity has been put in issue.
- The time since any conviction the prosecution seeks to give evidence about.
- If any evidence by the defendant about veracity was elicited by the prosecution.
Propensity evidence does not include
Evidence of an act or omission that is an element of the offence being tried,
Evidence that is mainly about veracity.
The prosecution may offer propensity evidence if
The probative value outweighs the risk of an unfairly prejudicial effect.
Note: is similar to S8 test
When assessing the value of propensity evidence, the judge may consider
(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, omissions, events, or circumstances which are the subject of the evidence 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, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried.
(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 paragraph (d) may be the result of collusion or suggestibility.
(f) The extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
A hearsay statement is admissible if:
Section 18(1)
A hearsay statement is admissible if:
(a) circumstances relating to the statement provide reasonable assurance it is reliable
And either;
(b) (i) the maker of the statement is unavailable
(ii) the judge considers undue expense or delay would be caused if the maker was required.
Propensity evidence includes
- Propensity as to actions,
- Propensity as to state of mind (e.g., love of violence).
What is the rationale of the rule against hearsay?
The lack of reliability of hearsay evidence 4 points
- If the maker is not called as a witness, there is no opportunity to cross-examine.
- Juries cannot evaluate evidence properly without being able to see the demeanor of the person.
- There is danger witnesses will make mistakes about the meaning or content of statements made by other people.
- Undeserved weight may be attributed to evidence which cannot be tested.
Section 16(1) Evidence Act 2006 defines ‘circumstances’
- The nature of the statements,
- the contents of the statement,
- circumstances of making the statement,
- circumstances of the veracity of the person,
- circumstances of the accuracy of the observation of the person.
Unavailable as a witness if the person….
Section 16(2)
- (a) is dead
- (b) is outside New Zealand and not practical to be a witness
- (c) unfit because of age or physical or mental condition
- (d) cannot be identified or found
- (e) is not compellable.
Sec 23 - The general exclusionary rule
Why is opinion evidence generally excluded?
- Where a witness offers a bare opinion, it holds little probative weight.
- There is a danger opinion evidence could confuse the tribunal of fact and prolong proceedings.
- Opinion evidence may be based on other evidence which would be inadmissible.
In order to be admissible under s24, the statement of opinion must fulfil two basic criteria:
- Opinion must be the only way to effectively communicate the information.
- The opinion must be from something personally perceived by the witness.
Section 25
Expert Opinion Evidence may conist of?
To comply with section 25 it must?
Expert opinion evidence may consist of fact, opinion, or a mixture of both.
- be that of an expert,
- comprise expert evidence,
- offer substantial help in understanding other evidence or ascertaining any fact in the proceeding.
Define expert
A person who has specialised knowledge or skill based on training, study, or experience.
Opinion evidence from a witness may include
- Identity,
- speed,
- emotional state,
- weather,
- age.
Section 25(1) provides that expert opinion evidence will be admissible if the fact-finder is ‘likely to obtain substantial help’ from the opinion in:
How can expert opinion help the proceeding?
- Understanding other evidence,
- in ascertaining any fact that is of consequence in the determination of the proceeding.
OF NOTE: “Substantial help” replaces the two defining common law rules that related to expert opinion evidence and are abolished in s25(2): the common knowledge and ultimate issue rules.
