the trial in canadian courts – part 3 rules and types of evidence law 12 mundy - 2008
TRANSCRIPT
THE TRIAL IN CANADIAN THE TRIAL IN CANADIAN COURTS – Part 3COURTS – Part 3RULES AND TYPES OF EVIDENCELAW 12MUNDY - 2008
RULES/TYPES OF RULES/TYPES OF EVIDENCEEVIDENCEAdmissibility of evidence means
whether evidence should be allowed to be presented to a judge or jury to weigh an accused’s guilt or innocence
If there is doubt on either side whether any evidence should be admitted, a voir dire is held
During this, jury leaves and both sides make presentations to judge
Judge then rules on whether it is admitted
SELF-INCRIMINATIONSELF-INCRIMINATIONSelf-incrimination is grounds under
which a witness can refuse to respond to a question asked while on the stand
Witness is protected from having any statements they make on stand that might “incriminate that witness in any other proceeding”
Exception is perjury, in which witness gives intentionally misleading evidence
PRIVILEGED PRIVILEGED COMMUNICATIONSCOMMUNICATIONSThis category of communication
cannot be required to be presented in court as evidence
Example – spouses are not required to give testimony against accused; they are, however, able to give as defence
Other examples: parishioners & clergy, patients & doctors, etc.
SIMILAR FACT EVIDENCESIMILAR FACT EVIDENCEEvidence that shows the accused
has committed similar offences in the past
Purpose is to show accused has a pattern of criminal behaviour (if, for ex., accused claims it was an accident
However, voir dire is held to determine if any similar fact evidence is relevant to case
HEARSAY EVIDENCEHEARSAY EVIDENCEEvidence not given from the
personal knowledge or experience of the witness testifying
Given when witness gives testimony regarding what someone else said or wrote
Ex. – On stand, Mr. A testifies, “Ms. B told me that she saw Mr. C rob the grocery store.”
HEARSAY EVIDENCE, HEARSAY EVIDENCE, cont’d.cont’d.Hearsay evidence cannot be
admitted as evidence Exceptions:
◦out-of-court statement (but only to show statement was made, not admitted for its content)
◦Witness quoting from someone dying (now dead and cannot testify)
◦Evidence considered necessary & reliable
OPINION EVIDENCEOPINION EVIDENCEEvidence by witness regarding their
thoughts, assumptions, conclusions about what they experienced
Ex. – “He was staggering and couldn’t speak clearly. I think he was drunk.”
Exceptions – qualified experts on a subject are allowed to give opinion, but only where topic is beyond knowledge of both judge and jury
CHARACTER EVIDENCECHARACTER EVIDENCEEvidence showing accused as having
either positive or negative traitsCrown is restricted use of this kind
of evidence; therefore it cannot use prior convictions as evidence towards case
However, if defence gives character evidence, Crown allowed to refute it by introducing evidence to contrary (such as prior convictions)
CHARACTER EVIDENCECHARACTER EVIDENCEAs well, if accused decides to
take stand and testify, Crown may cross-examine, but only to determine if any statements made were false (i.e. – cannot attack credibility of accused)
PHOTOGRAPHSPHOTOGRAPHSCan be admitted as evidence only
if they are accurate depiction of crime scene
Photographer or developer may take stand to answer questions on process of picture taken (to ensure photo is valid)
Photos meant merely to incite jury can be considered inadmissible by judge
ELECTRONIC DEVICES & ELECTRONIC DEVICES & VIDEO SURVEILLANCEVIDEO SURVEILLANCEConsidering principle of
“reasonable expectation of privacy”, recording conversations that are private are not admitted as evidence; UNLESS:◦Police have secured a court order
authorizing them to do so◦One of the two parties involved in
the conversation have consented to being recorded
ELECTRONIC DEVICES & ELECTRONIC DEVICES & VIDEO SURVEILLANCEVIDEO SURVEILLANCEIn emergencies in which serious
harm can be prevented, police are allowed to record conversations
Video surveillance is also admissible if recording public areas
If video or listening devices are used to ‘spy’ on person or their property, search warrant is required first
POLYGRAPH EVIDENCEPOLYGRAPH EVIDENCEPolygraph (lie detector) evidence
cannot be admitted as evidence, deemed as hearsay evidence
Only evidence can be what the accused said; however, polygraph operator cannot give testimony as to whether analysis showed person’s responses to be truth or lies
CONFESSIONCONFESSIONAcknowledgement by accused
that some or all of charges/accusations are true
Can be admitted as evidence if:◦Given after accused was arrested
and given rights to legal counsel◦Confession was voluntary (i.e.- not
made while tortured, lengthy questioning, or given leniency if confessed)
CONFESSIONCONFESSION2 types:Inculpatory confession –
admission of guiltExculpatory confession – denial
of guilt
ILLEGALLY OBTAINED ILLEGALLY OBTAINED EVIDENCEEVIDENCETypically not admitted as
evidenceHowever, can be admitted if
judge rules that evidence does not bring “the administration of justice into disrepute”