The Exclusive Rules of Evidence Flashcards
list 4 of the matters that the exclusive rules of evidence deal with:
a. Veracity
b. Propensity
c. Hearsay
d. Opinion
e. Identification
f. Improperly obtained evidence.
Section 37 E Act relates to the veracity rules of evidence. When a judge considers whether evidence is substantially helpful they may take a number of matters into account, name 4 of these matters;
Or…. Four points , under 37(3) on veracity judge must take into account Or…. Describe 4 matters which a judge may consider in determining whether veracity evidence is substantially helpful
a. Lack of veracity on the part of the person when under a legal obligation to tell the truth
b. Conviction of 1 or more offences indicating dishonesty or lack of veracity.
c. Previous inconsistent statement(s) made by the person
d. Bias on the part of the person
e. Motive to be untruthful
Section 38(2) - The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if:
a. When the defendant has offered evidence regarding their veracity or has challenged the veracity of a prosecution witness.
b. When the judge permits the prosecution to do so.
What does propensity evidence mean S40(1)(a) and what does it exclude, S40(1)(b)?
a) Propensity evidence means evidence that tends to show a person’s 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 involved, but
b) Does not include evidence of an act or omission that is:
i) 1 of the elements of the offence for which the person is being tried; or
ii) the cause of action in the proceeding in question.
Propensity evidence includes:
a) Propensity as to actions
b) Propensity as to state of mind
Propensity evidence excludes:
a) Evidence of an act or omission that is one of the elements of the offence for which the person is being tried.
b) The cause of the action in the proceeding in question.
c) Evidence that is solely or mainly about veracity.
Probative Value - What is the test for admissibility
The test for admissibility is whether 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.
Define Hearsay
a) A statement made by a person other than a witness
b) A statement offered in evidence to prove the truth of its contents
Why is Hearsay Evidence excluded? List three reasons for the rule against hearsay; the rationale of the rule against hearsay evidence lies in the lack of reliability of hearsay evidence;
a) Where the maker of the statement is not called as a witness, there is no opportunity to cross examine that person regarding the content.
b) Juries cannot evalulate evidence properly without being able to see the demeanour of the maker of the statement.
c) Danger witnesses making mistakes about the meaning or content of statement made by other people. E.g. chinese whispers.
Section 16(1) Evidence Act 2006 defines “circumstances”, name 4 circumstances in relation to a statement by a person who is not a witness … or … Circumstances that relate to hearsay statement being reliable … or … Define circumstances Section 16(1):
a) The nature of the statement
b) The content of the statement
c) The circumstances that relate to the making of the statement
d) The circumstances that relate to the veracity of the person
e) The circumstances that relate to the accuracy of the observation of the person.
List 4 reasons why a witness may be unavailable as a witness s16(2) or … Define what is meant by unavailable witness
a) Is dead
b) Is outside NZ and it is not practicable for him or her to be a witness
c) Is unfit to be a witness because of age or physical or mental condition
d) Cannot with reasonable diligence be identified or found
e) Is not compellable to give evidence
Under s16(1), a business record means a document that is made:
To comply with a duty or in the course of a business, and as a record or part of a record of that business
What are the justifications behind the general exclusionary rule of opinion where opinion is not admissible except as provided by ss 24 and 25 … or … Justification behind opinion evidence excluded derived from rationales that … or … Why is opinion evidence unreliable
a) Where a witness offers a bare opinion it holds little probative value
b) There is a danger that opinion evidence will usurp the function of tribunal of fact
c) A witness’ evidence of opinion may be based on other evidence which would be inadmissible.
s24 - General admissibility of opinions - Non expert opinion evidence
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or for the fact-finder to understand, what the witness saw, heard or otherwise perceived.
In order to be admissible under s24 (general admissibility of opinion), the statement of opinion must fulfil two basic criteria:
a) Opinion must be the only way in which to effectively communicate the information to the fact finder
b) The witness must be stating an opinion from something personally perceived.
