Rules Of Evidence Flashcards
What are the rules of evidence?
The exclusive rules of evidence deal with – . Veracity . Propensity . Hearsay . opinion . identification Improperly obtained evidence
Character evidence; veracity and propensity evidence
The evidence act 2006 divides what was called character evidence act common law into two classes of evidence:
Veracity - a disposition to refrain from lying and
Propensity – a tendency to act in a particular way.
Section 37 of the evidence act sets out the veracity rules:
In considering veracity a judge may consider;
Lack of veracity when under legal obligation to the truth
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.
In order to be admissible, veracity evidence must be substantially helpful in assessing the veracity of the person. This is a higher threshold than relevance under s.7.
A defendant may offer evidence about his or her veracity provided that it meets the substantial helpfulness test as set out in s.37.
S.40 propensity rule
s.40 Propensity Rule;
Propensity evidence means evidence that tends to show a persons 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 onvolved but does not include evidence of an act or omission that is – one of the elements of the offence for which they are being tried or the cause of action in the proceeding in question.
Two types:
Propensity as to actions
Propensity as to state of mind
Does not include evidence which is an act or omission that is one of the elements of the offence for which they are being tried or is solely or mainly about veracity.
s.41 Propensity evidence about defendants:
s. 41 Propensity evidence about defendants:
(1) A defendant in a criminal proceeding may offer propensity evidence about himself or herself.
(2) If a defendant offers propensity evidence about himself or herself, the prosecution or another party may, with the permission of the judge, offer propensity evidence about the defendant.
(3) Section 43 does not apply to propensity evidence offered by the prosecution under subsection (2).
A defendant may offer propensity evidence when testifying, but also through other witnesses, if he or she does not testify.
s.43 Propensity evidence offered by prosecution about defendants
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if 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.
(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 the propensity evidence, the judge may consider among other matters, 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 acts, omissions, events or circumstances which are the subject of the evidence and those which constitute the offence for which the defendant is being tried.
C – The extent of similarity between the acts, omissions, events or circumstances.
D – The number of persons making allegations against the defendant that are the same as or similar to the subject of the offence for which the defendant is being tried.
E – Whether the allegations in (d) may be the result of collusion or suggestibility.
F – How unusual the acts, omissions, events or circumstances are.
(4)Judge must consider prejudicial effect of evidence by assessing ;
(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.
Probative value must outweigh the risk that the evidence may have an unfairly prejudicial effect on the defendant.
Hearsay statement
Hearsay Statement – A statement that (a) was made by a person other than a witness and (b) is offered in evidence at the proceeding to prove the truth of its contents.
Statement means a spoken or witten assertion by a person of any matter or non verbal conduct of a person that is intended by that person as an assertion of any matter.
Hearsay statements are not admissible except where there is a provision for admissibility under the Evidence act 2006 or any other act.
S.17 hearsay rule
S.17 Hearsay rule
(1) A hearsay statement is not admissible except –
(a) as providd by this subpart or by the provisions of any other act. Or
(b) In cases where
(i) This act provides that this subpart does not apply and
(ii) The hearsay statement is relevant and not otherwise admissible under this act.
S.18 general admissibility of hearsay
s. 18 General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if –
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either –
(i) the maker of the statement is unavailable as a witness or
(ii) the judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
Reliability – hearsay evidence has a lack of reliability because:
There is no opportunity to cross examine the maker of the statement.
Juries cannot evaluate evidence properly without being able to see the demeanour of the person
Witnesses will make mistakes or miss interpretations of statements made by other people.
The reason for the rules existence is therefore the danger of attributing undeserved weight to evidence which cannot be adequately or properly tested.
Section 16 - hearsay - circumstances
Section 16 (1) defines circumstances as:
Circumstances include;
The nature of the statement; and
The contents of the statement; and
The circumstances that relate to the making of the statement; and
Any circumstances that relate to the veracity of the person; and
Any circumstances that relate to the accuracy of the observation of the person.
These are the circumstances the court must consider when establishing that the statement is reliable.
Hearsay - Unavailable as a witness
Unavailable as a witness:
Is dead
Is outside NZ and not practicable
Is unfit to be a witness because of age or physical or mental condition or
Cannot with reasonable diligence be identified or found or
Is not compellable to give evidence.
S.19 admissibility of hearsay statements contained in business records
Section 19 Admissibility of hearsay statements contained in business records:
Is admissible if person is unavaiulble as a witness or the judge considers no useful purpose in having that person be a witness or judge considers undue expense or delay.
A business record means;
A document made to comply with or in the duty of business and as a record or part of a record of that business.
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.
This definition includes a statement made to a police officer and written down in his or her notebook or job sheets.
*Must give notice of hearsay to have it admitted in court.
Should be dealt with pre-trial
The opinion rule - general exclusionary rule
The general exclusionary rule - A statement of opinion is not admissible in a proceeding, except as provided by section 24 or 25. A witnesses opinions, beliefs or inferences are not their perceptions, but are conclusions drawn from those perceptions.
This rule essentially prevents the admission of unreliable and misleading evidence. To admit such evidence would result in the admission of evidence of doubtful relevance and be a waste of court time. A witnesses bare opinion holds little probative weight
Section 24 - opinion rule
24 – 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. E.g. identity, speed, emotional state, weather, age etc
Opinion must be the only way in which to effectively communicate the information to the finder of fact.
The witness must be stating an opinion from something personally perceived.
