Pg 6 Flashcards
What is the definition of probity for relevance?
Does the evidence have any tendency to make a fact of consequence more or less likely?
What does it mean when you say a brick is not a wall for the probative value of evidence regarding relevance?
A piece of evidence doesn’t have to prove the whole case to be relevant, it just needs to make some claim or defence or witness’ credibility a bit more likely or less likely to be met than it would be without the evidence
Does it matter for probity for relevance whether it makes the fact more or less likely?
No, it doesn’t matter which way it cuts as long as it moves the ball a little bit about something that matters to the case
Arguments about the strength of evidence go to what instead of admissibility?
To weight or the importance the jury should give it during their deliberation
Does the weight of an argument factor into relevance?
No
How much probity is required to be sufficient for relevance?
Any minimal probity
If evidence is probative of one material issue, even if it’s also probative of immaterial issues, is that enough to be admitted?
Yes
What’s the difference between the probative value and materiality for relevance?
– Materiality: this is based on the elements of the cause of action or defences and depends on the substantive law whether it is relevant
– probity: this is based on logic and common sense to see if the evidence relates to the point being made
Is it necessary that evidence is conclusive to be considered probative for relevance?
No
Under FRE 402 relevant evidence is admissible unless what things say otherwise?
The constitution, a federal statute, FRE, or rules from the Supreme Court
Is irrelevant evidence admissible?
No
What are the two types of relevant evidence?
Direct evidence and circumstantial evidence
What is direct evidence?
When the only inference that has to be made to establish a fact of consequence is the truth of the matter asserted and these facts are direct evidence of an element of the claim or defence
What type of evidence is the following statement, “I saw X shoot B.“
This is direct evidence that is offered to prove the shooting. If it is believed, it proves a fact without needing to draw any inferences
If you were trying to prove that the defendant was going 120 km an hour, what would be good direct evidence of this?
A radar gun that said 120 km an hour
What is circumstantial evidence?
Evidence that is offered to establish a fact of consequence where an inference in addition to the truth of the matter must be made. This evidence is offered for some further proposition based on an inference (you must draw an inference to prove a fact).
What type of evidence is this? Testimony that X fled the scene
Direct evidence of the flight from the scene, circumstantial evidence of a murderous act (because you have to make a further inference about why he was fleeing)
How does a burglary where the defendant’s prints are on items constitute circumstantial evidence?
It requires you to infer that he touched these things because he stole them
What is tying up or conditional admissibility?
Evidence that is not relevant without a fact being established first, so courts admit the evidence subject to the attorney proving up that fact later
If a coroner needs to testify that a victim has stab wounds, but he can’t testify that the victim is the victim, which can only come from a family member later, is it likely that an attorney will be a permitted to tie up that evidence?
Yes
If an attorney never does tie up, what happens?
The jury has already heard testimony that they shouldn’t have heard, so the judge tells them to disregard it
What is the sufficiency standard that applies to tying up?
An attorney must give sufficient evidence that a jury could find the preliminary fact to be true before they can consider the conditional fact that it’s based on
What is something that cannot be proved up?
Personal knowledge of the witness, because that is a foundational fact that cannot be proved up after testimony about a subject is given. Personal knowledge must be established before the witness can testify about a matter
Rule 403 favours what?
Admitting evidence. Exclusion is used sparingly since that is an extraordinary remedy
Who has the burden of exclusion for rule 403?
The objecting party
When rule 403 is considered, how is it viewed?
The probative force and prejudice are viewed in the light most favourable to the proponent and the court gives the evidence its maximum reasonable probative force and minimum reasonable prejudicial value
If evidence is probative of more than one proposition, what happens?
A court can admit it for whatever purpose is permissible
