The Exclusive Rules of Evidence Flashcards
List the matters that the exclusive rules of evidence deal with
Hearsay
Opinion
Propensity
Veracity
Identification
Improperly obtained evidence
Section 37(3) Evidence Act 2006 – When considering evidence offered about the veracity of a person is substantially helpful, what may the judge consider:
- Lack of veracity on the part of the person when under a legal obligation to tell the truth
- That the person has a conviction 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
Section 38(2) – The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if:
- The defendant has offered evidence regarding their veracity or has challenged the veracity of a prosecution witness, and
- The judge permits the prosecution to do so.
What does Propensity Evidence Mean, what does it exclude and what does it include?
- Propensity Evidence means:
o Means evidence that tends to show a person’s propensity to act in a particular way or in a particular statement of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved, but - Propensity Evidence includes:
o Propensity as to actions
o Propensity as to state of mind - Propensity Evidence excludes:
o Evidence of an act or omission that is one of the elements of the offence for which the person is being tried., or the cause of the action in the proceeding in question.
o Evidence that is solely or mainly about veracity.
What is the propensity rule?
- Propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved, but
- Does not include evidence of an act or omission that is
o one of the elements of the offence for which the person is being tried, or
o The cause of action in the proceeding in question
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
The court has a discretion to include propensity evidence against a defendant if:
d. The probative value of the evidence outweighs its judicial effect
The rationale of the rule against hearsay evidence lies in the lack of reliability of hearsay evidence. List three reasons for the rule against hearsay.
- Where the maker of the statement is not called as a witness, there is no opportunity to cross-examine that person regarding the content, the circumstances in which it was made, and so on
- Juries cannot evaluate evidence properly without being able to see the demeanor of the maker of the statement in question.
- There is a danger that the witnesses will make mistakes about the meaning or content of statements made by other people.
Circumstances, in relation to a statement by a person who is not a witness, includes:
- Circumstances, in relation to a statement by a person who is not a witness, include:
o The nature of the statement
o The content of the statement
o The circumstances that relate to the: making of the statement, veracity of the person, accuracy of the observation of the person.
List 4 reason why a witness may be unavailable as a witness S16(2) Or… Define what is meant by unavailable witness S. 16(2)
- For the purposes of this subpart, a person is unavailable in a proceeding that the person:
o Is dead
o Is outside NZ and is not practicable for him or her to be a witness
o Is unfit to be witness because of age or physical or mental condition
o Cannot with reasonable diligence be identified or found
o Is not compellable to give evidence
A person is unavailable as a witness when:
The person is overseas and can’t be contacted
Under s16(1), a business record means a document that is made
- A business record means a document that is made
o to comply with a duty or in the course of a business, and as a record or part of a record of that business.
o From information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have, personal knowledge of the matters dealt with in the information he or she supplied
The exclusionary rule is essentially to prevent the admission of unreliable, superfluous, or misleading evidence (opinions). The justifications for that rule include
- Where a witness offers a bare opinion, it holds little probative weight
- There is a danger that opinion evidence will usurp the function of the tribunal of fact, which is to draw the necessary inferences from the facts presented in evidence
- The opinion evidence could confuse the tribunal of fact and prolong proceedings.
- A witness’s evidence of opinion may be based on other evidence which if stated expressly would be inadmissible.
What is the ruling around the 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 the factfinder 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
- 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.
