Test 3 Flashcards
Define character evidence
Evidence on the type of person someone is, based on their past behaviour
What is character evidence usually based on?
Circumstantial evidence
What is the inherent danger of a character witness?
It may be given more weight than it deserves; Bad character evidence might be given more weight than it deserves; The trier of fact may jump to conclusions about the accused.
What are factors to consider in determining the probative value of evidence?
- Proximity in time b/w offence and similar acts.
- Similarity in the charged conduct and past crimes.
- Number of similar acts - lots; or very few.
- The circumstances surrounding the similar acts.
- Distinctive features that unify the incidents.
- Existence of any intervening acts.
- Any other fact that supports or rebuts the underlying unity of the acts.
What can arise from circumstantial evidence?
Potential prejudice when comes to past behaviour.
What case spoke to probative value of character evidence? Similar fact evidence test.
R. v. Handy
What needs to be present when considering character evidence?
A striking similarity
What case dealt with the issue of admissibility of bad character?
R. v. Soikie
When can an accused criminal record be called?
When an accused chooses to testify and they may paint themselves in a light where there is no criminal record or they address their own character.
Name 3 dangers if an accused testifies and a criminal record is introduced.
- The jury may want to convict based on past wrongdoings.
- The accused may not be a likeable person and deserves to be punished
- The jury may want to bring closure and will not want to conduct a thorough analysis.
What is 3rd party witnesses testimony limited to when it comes to the good character of the accused?
They may only testify as to the general good character based on their dealings with them.
If the accused provides testimony of their character, is this low or high probative value?
Low
What can an expert witnesses evidence be, when it comes to the trier of fact?
Persuasive
Are non-party witnesses allowed to provide testimony?
Yes
What kind of witness can provide propensity evidence?
Expert evidence
What element would be considered with propensity evidence?
Admissibility
What kind of evidence can be called once the accused brings up their character?
Rebuttal evidence
What is the difference between propensity evidence and character evidence?
Propensity evidence can only be given by an expert and character evidence can be given by any witness to speak to the accused general character.
What two requirements need to be met for propensity evidence to be admitted into evidence?
- Distinctive behavioural characteristics.
- The probative value must be very high to exceed its extreme prejudice.
What case showed specific characteristics under propensity evidence?
R. v. Mohan
What is meant by prohibited inference?
The general rule of bad character evidence; generally prohibited.
Why is co-accused testimony beneficial?
It paints a picture that your colleague is more culpable.
What is the rape shield law?
Limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behaviour.
What are the 4 stages to the admissibility test?
- The trial judge must start from proposition that similar fact evidence is inadmissible.
- The Crown must show that the evidence is relevant to some issue that goes beyond the character of the accused ie identification
- Probative value of the crowns case outweighs the corresponding prejudice to the accused.
- There must be a distinctiveness to the similar acts ie a mask during a sexual assault.
What is defined under “similar’?
- Striking similarity
- Reasoning prejudice
- Moral prejudice
What case covers non distinction in similar facts?
R. v. Arp
What are prior acquittals deemed as?
Off-limits
What section covers non-accused witnesses criminal record?
S. 12 of the Canada Evidence Act
What is opinion evidence defined as?
A conclusion or inference from what a witness has seen.
What is the role of the court?
Evaluate and determine the facts in light of the totality of the evidence.
What does expert evidence need to be?
Generalized and cannot be inflammatory.
What are the two exceptions to the prohibition against opinion evidence?
- the witness is an expert and the court requires an expert opinion
- The court needs a layperson witness to express an opinion for a clear understanding of his testimony to be obtained (ordinary experience)
What is an opinion?
An opinion is NOT a statement of fact; it is based on inferences or conclusions that are drawn from facts or observations.
What are the 3 categories of allowed evidence of opinion evidence?
- Where a layperson W is in as good - if not better position than the court to make the conclusion from the observed fact and where the inference is obvious and unquestionably true.
- Where a layperson W’s opinion evidence has little potential for harm and is an opinion that a layperson could be expected to arrive at.
- Where the subject matter of the layperson opinion is within the knowledge and expertise of an average person.
What is the two part test for expert evidence?
Logical/legal relevance & Necessity
What is the maximum amount of expert witnesses allowed under the OEA?
3
What is the maximum amount of expert witnesses allowed under the CEA?
5
What does hired gun syndrome mean?
The expert is no more than the mouthpiece of the client, i.e. to say virtually what its client wants him to say and to support the case.
What can be admitted as evidence in lieu of calling the expert to testify as a witness?
An expert report?
Under what act is an expert report allowed?
s. 52(2) of the OEA
What does R. v. Abbey speak to?
The expert was unable to testify as to the specific reason the accused tear drop tattoo had meaning but could only speak to the meaning of the tattoo within gang culture.
What is the exception in the instance that expert evidence is being solely introduced to show the witness is telling the truth?
Retractions of allegations of sexual abuse from a child witness.
What is an example of privilege by class?
Solicitor/client; doctor/patient
What is an example of privilege by case?
Expectation of privacy
What are the two ways that evidence law keeps privilege limited?
- Defining privilege narrowly
- Privilege exception
What needs to be proven for privilege of class?
Prove the party’s relationship clearly falls within the prescribed class.
Does solicitor/client privilege goes beyond death?
Yes.
What is the threshold for solicitor/client privilege?
Legal advice.
What can be done to “pierce the privilege”?
An application can be made.
What is the innocence at stake rule?
The accused my prove that there is no other source for exonerating information and the accused would otherwise be able to raise a reasonable doubt.
- Communication exists
- Producing the communications to be examined by the judge
How can a spouse give evidence when considering spousal privilege?
- Observation
- Are not getting back together
- Death
- Voluntarily
- Crime is committed against the other spouse
What is the Wigmore test?
- Clear intent the communications are confidential.
- Confidentiality must be a hallmark expectation of the relationship.
What is the two part test for third party records?
- Relevance.
- Review and the extent the records will be produced decided by the judiciary.
What are the 3 factors of keeping records private?
- Societal Interest:
a) Reporting of sexual offences
b) Seeking treatment
c) Integrity of the trial process and the impact of the decision.
What is the exception to privilege?
Imminent bodily harm or death threat to public safety and the person or group is clearly identifiable.
What does litigation privilege protect?
Communications
What kind of privilege is protected from evidence being shared in the courtroom?
Settlement privilege
What are the two exceptions to the apology rule?
Given on the witness stand and in a criminal proceedings.
