General Questions Flashcards
What is a “good” document that you would submit to court?
The best document to be admitted is the original of a document. Where the original cannot be obtained (because someone else has it) or it is lost or destroyed, then a copy may be admissible instead. The document will also be one that can be authenticated: by calling the creator of the document, witnesses who observed the document being created, through admission by the opposing party, or circumstantial evidence. This evidence might be that a letter is a reply to an earlier one, or is an ancient document. The Canada Evidence Act (and provincial acts) also allow for the admission of many public records without demanding authentication.
How can a witness refresh their memory prior to trial?
witnesses can use any means to refresh their memory (although they can be examined on these means, which may go to weight), save hypnosis. That is prima facie inadmissible/
How can a witness refresh their memory during trial?
a witness may refresh her memory in one of three ways. Using “past recollection recorded”: use of previously made records or documents, such as notes or business records contemporaneous to the events in question. Here, the witness will frequently not have an independent memory of the events, and will need the document (but cannot use it as a script – it should be reviewed before questioning resumes). Using “present memory revived”: consultation of a document that triggers the witness’ memory of the events in question. Using “transcripts and depositions” as the basis for answering questions (again not as a script).
What is the rule on similar fact evidence?
Similar fact evidence is evidence that the accused has engaged in criminal or discreditable acts, or is of a bad/discreditable character. It is presumptively inadmissible. The Crown must satisfy the trial judge on a balance of probabilities that the probative value of the similar fact evidence outweighs its prejudicial effect.
What is probative value - in relation to similar fact evidence?
Probative value deals with the strength of the evidence (that the act occurred), and the extent to which it supports the inference that is claimed (e.g., that the accused, having done X in the past, did do it again in the instant case), and the degree to which that issue is contested in the present case.
What is prejudicial effect?
Prejudice deals with whether the trier of fact will prejudge the case wrongly. Moral prejudice is that which suggests the accused is the kind of bad person to commit the offence; reasoning prejudice is the idea that the trier of fact will be unable to logically decide the case because the evidence is so inflammatory, confusing (what evidence relates to which charge), distracting (draws disproportionate attention), or incapable of being responded to by the accused.
What is the rule upon encountering an inconsistent statement?
• Sections 10 and 11 of the Canada Evidence Act offers a statutory regime for cross examination on prior inconsistent statements. Counsel is allowed to impeach witnesses using prior inconsistent statements. Fairness requires that the statement be put to the witness. Counsel should ask the witness to confirm their in-the-moment testimony, then confront them with the inconsistent statement. That statement is ordinarily read aloud into the record. The witness will usually be given the chance to adopt the previous statement. If this is done, then the previous statement is put in for the truth of its contents. Otherwise, it is led for the purpose of undermining the credibility of the witness (who makes inconsistent statements).
What is the rule that applies when you want to admit a prior inconsistent statement from your witness?
• If you want to admit a prior inconsistent statement from your own witness, you should be ready to “climb the ladder”: refresh your witness’ memory; then move to introduce a prior inconsistent statement under s. 9(1) [oral] or 9(2) [written/recorded] of the Canada Evidence Act; then potentially seek admittance of the statement through the hearsay exception in R v B.(K.G.). Under the Canada Evidence Act provisions of Section 9, leave must be sought from the Court (which includes a determination that the statements are in fact inconsistent, and, importantly, that the witness you have produced is ‘adverse’). There is disagreement on what adverse means. In Ontario, adverse can mean something short of ‘hostile’; a witness whose testimony opposes the position of the party calling him may suffice as adverse. There is no hard and fast rule that you must ‘climb the ladder’ in this order, but some methods can be less intrusive than others (especially when the witness is willing to adopt the prior statement).
What is the rule in KGB?
• The rule in R v B.(K.G.) offers a hearsay exception for non-party witnesses (e.g. people other than the accused/co-accused). These statements are necessary because of the inconsistency between the in- and out-of-court statements. They are reliable either because of the circumstances in which the out-of-court statement was made, or because the statement is inherently trustworthy.
What is the test for dealing with expert witnesses?
• The test for expert witnesses is laid out in R v Mohan (SCC). There are four criteria that enter into the admissibility stage of the test. The expert evidence must be necessary, in the sense that the expert will offer evidence about a subject that ordinary people cannot form a correct judgment about absent assistance. As with other evidence, the expert evidence must be logically relevant to a material issue. The expert must be properly qualified – possess special knowledge and experience on the issues to which he/she testifies beyond the finder of fact. The expert evidence must not be caught by some other exclusionary rule (such as the rule against bad character evidence).
How does the expert witness second stage look like?
In the second stage (per R v Abbey (ONCA)), the trial judge performs a gatekeeping function, weighing the benefits of the evidence (its probative value) against its costs (the difficulty in understanding and evaluating expert evidence; the potential distraction of dealing with expert evidence; and the resources, time and otherwise, consumed by expert evidence).
When admitting into evidence a statement that a witness made to the police, what needs to be proved, who has the burden to prove it, and to what standard must it be proven?
With respect to confessions, the Crown must prove beyond a reasonable doubt that the statement was made voluntarily by the accused. This means the accused exercised a meaningful choice to speak, and his will to be silent was not overborne by threats, inducements, oppressive circumstances, the lack of an operating mind, or police trickery that undermined the right to silence.
List some cases that relate to the hearsay rule and exceptions
• R v Khan: outlines the principled exception to hearsay. R v Wang, R v Carter and R v Mapara: on the co-conspirators exception to hearsay; the appropriate steps to be taken by the finder of fact; and how this common-law exception fits with the principled exception to hearsay R v Hawkins: on admissibility of testimony in former proceedings R v Demeter; R v O’Brien and R v Ward: on declarations against penal interest R v Wilcox: Common-law rule on business records; statutory exception on business records; and principled exception to hearsay R v Delgamuukw: on Aboriginal oral histories
What is hearsay?
• Hearsay evidence is an out-of-court statement that is adduced for the truth of its contents (as opposed to the fact that the statement was made). Hearsay evidence is presumptively inadmissible, unless it falls under one of the multiple exceptions to the rule.
What is the principled exception to hearsay?
Under the principled exception, hearsay is admissible if it is both necessary and reliable. Necessity is a question of whether the evidence is otherwise available; reliability at this stage is a threshold question, whether the evidence is sufficiently reliable to leave it for the trier of fact (e.g. jury) to use in deciding the case. The trier of fact will deal with the weight to be afforded this evidence; the trial judge will deal with admissibility.
