The Exclusive Rules of Evidence Flashcards
The exclusive rules of evidence deal with
VOPI HI
Veracity
Opinion
Propensity
Identification
Hearsay
Improperly obtained evidence
Relationship between veracity and propensity
character evidence
- veracity - a disposition to refrain from lying
* propensity - a tendency to act in a particular way
Veracity rules s37(3)
37
(3) In deciding, for the purposes of subsection (1), whether of not evidence proposed to be offered about the veracity of a person is substantially helpful, the Judge may consider, among any other matters, whether the proposed evidence tends to show 1 or more of the following matters:
(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (eg, in an earlier proceeding or in a signed declaration);
(b) that the person has been convicted of 1 or more offences that indicate a propensity for dishonesty or lack of veracity
(c) any previous inconsistent statements made by the person:
(d) bias on the part of the person:
(e) a motive on the part of the person to be untruthful
Veracity rules do not apply
If the veracity is an element of the offence - eg perjury
Do not apply to bail or sentencing hearings -except where the evidence is covered by s44 (where it relates to the sexual experience of the complainant with any person other than the defendant, or his or her rep in sexual matters)
Evidence of defendants veracity s38
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understanding
A defendant can offer evidence about his veracity
The prosecution may offer evidence of def veracity only if-
the def has offer evidence of his veracity or challenges a witnesses and the judge permits the prosecution to do so
Propensity Rule s40
s40
Propensity rule
(1) In this section and sections 41 to 43, propensity evidence-
(a) 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 circumstance 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
General rule propensity
The general rule is that a party may offer propensity evidence about any person. This is subject to restrictions - sexual cases
Propensity evidence about defendants s41
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understanding
A defendant may offer propensity evidence about himself/herself
If a defendant offers propensity evidence about himself the prosecution may offer propensity evidence about him/her if the judge allows
Propensity evidence offered by prosecution about defendants s43
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bit of understanding
The prosecution may offer propensity evidence about a defendant only if the evidence has a probative value in relation to an issue in dispute and outweighs the risk that the evidence may be unfairly prejudicial effect on the defendant
What is probative value
Probative value is evidence that is sufficiently useful to prove something in a trial.
Probative value must outweigh the risk of an UNFAIRLY prejudicial effect. All probative evidence will be prejudicial; the test is concerned with illegitimate prejudice.
Onus on Prosecution to satisfy court that PV outweighs the risk of unfair prejudice on defendant.
Hearsay s4 EA 2006
Under the Act, a hearsay statement is defined as:
s4
“a statement that-
(a) was made by a person OTHER THAN THE WITNESS; and
(b) is offered in evidence at the proceeding to PROVE THE TRUTH OF ITS CONTENTS”
Statement means s4
- a spoken or written 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 manner
Hearsay “other than a witness”
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The definition of hearsay means that out of court statements made by a witness are not hearsay. This applies even if the person who made the statement does not give evidence in chief on the statement made in court.
The ability to cross examine the statement maker is primary reason for rule against hearsay
Circumstances s16(1)
16(1)
Circumstances, in relation to a statement by a person who is not a witness, include-
(a) the nature of the statement; and
(b) the contents of the statement; and
(c) the circumstances that relate to the making of the statement; and
(d) any circumstances that relate to the veracity of the person; and
(e) any circumstances that relate to the accuracy of the observation of the person
Unavailable as a witness (due to undue expense and delay) s16(2)
16
(2) For the purposes of this subpart, a person is unavailable as a witness in a proceeding if the person is -
(a) dead; or
(b) is outside NZ and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found: or
(e) is not compellable to give evidence
The General Exclusionary Rule is cover in:
The Opinion Rule s23
s23
Opinion Rule
A statement of an opinion is not admissible in a proceeding, except as provided by section 24 and 25
Section 23 states that opinions are not admissible to prove the truth of what is believed or inferred.
The premise of the opinion general exclusionary rule is that a witness’s opinions, beliefs or inferences are not their perceptions, but conclusions drawn from those perceptions
*Opinion definition s4
A statement of opinion tends to prove or disprove a fact
*Rational of Exclusionary Rule
is to prevent the admission of unreliable, superfluous or misleading evidence.
Justifications include:
*where witness offers a bare opinion - little probative value
*there is danger that the opinion evidence could confuse the tribunal of the facts and prolong hearing
*witness evidence may be based on other evidence which if stated expressly, would be inadmissible (eg opinion based on propensity evidence)
Non expert evidence s24
S24
General admissibility of opinions
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.
*Opinion evidence may include
topics such as identity, speed, emotional state, weather, age etc
*In order to be admissible under s24 must fulfil two basic criteria
- opinion must be the only way in which to effectively communicate the information to the fact finder
- the witness must be that an opinion from something personally perceived
Admissibility of expert opinion evidence s25
s25
Admissibility of expert opinion evidence
(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding
(2) An opinion by an expert is not inadmissible imply because it is about-
(a) an ultimate issue to be determined in a proceeding; or
(b) a matter of common knowledge
(3) If expert evidence about the sanity of the person is based in whole or in part on a statement that a person has made to the expert about the persons state of mind, then-
(a) the statement of the person is admissible to establish the facts on which the expert’s opinion is based; and
(b) neither the hearsay rule nor the previous consistent statements rule applies to evidence of the statement made by the person
(5) Subsection (3) is subject to subsection (4)
*Define expert
Section 4 defines an expert as a person who has specialised knowledge or skill, based on training, study or experience
- Experts can
- Base opinion on material from books, journals, articles in part
- Base on facts that are supplied from others, ie analysis of body issues carried out by other colleagues, research findings of other scientists etc
Two criteria for admissibility of hearsay are
Reliability; and unavailability OR that undue expense and delay would be caused
*In a criminal proceeding a notice of hearsay must be served
served on the other party so that each party has sufficient time , prior to the proceeding, to respond to the statement
*Opinion evidence is generally not accepted
Opinion evidence is generally not accepted exceptions are contained in s24 and 25
What is the propensity rule of evidence?
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, ommisions, events, or circumstances which a person has been alleged to be involved but does not include evidence of act/omission -
- one of the elements of the offence
- the cause of action in the proceedin in question
