SUMMARY ANALYSIS OF EVIDENCE PROBLEMS i

STEP ONE - - IS IT RELEVANT AND PROBATIVE? Does the evidence deal with a matter in dispute and does it tend to establish something about that matter? If the evidence is relevant and probative it is admissible unless excluded by some other specific rule. STEP TWO - - DOES AN EXCEPTION TO THE GENERAL ADMISSION RULE APPLY? Even if an exception applies, the evidence may still be admissible (e.g. not all confessions are excluded) but the relevant details of the exception must be considered. The main exceptions to the general admissibility rule arise if the evidence is: A. Hearsay

A statement is hearsay and, prima facie, inadmissible, if it is (a) an out of court statement (b) adduced in Court (c) to prove the truth of the facts therein. Exceptions to the Hearsay Rule Evidence, even though hearsay, may be admissible if it falls within certain well defined exceptions or, more generally, if the evidence is necessary and otherwise unavailable and there is some circumstantial indicia of trustworthiness. The specific exceptions include: (a) Testimony in Former Proceedings Testimony in a prior judicial proceeding between the same parties on the same factual issues where cross examination was available is admissible if the witness is now unavailable Admissions Anything a party says can be used against that party Declaration Against Interest A statement against a declarant=s immediate pecuniary or penal interest is admissible though hearsay Business Records Common Law: A business record made at or near the time of the event described by someone with personal information of the event whose duty required them to note such an event as part of the ordinary course is admissible though hearsay

(b)

(c)

(d)

Statute: As Common Law except written notice must be given and personal knowledge is unnecessary (e) Past Recollection Recorded A written memorandum of an event now forgotten made at, or near, the time of the event may be admissible, though hearsay Res gestae A hearsay statement relating to a startling event made while the declarant was under the stress of excitement caused by that event is admissible Statements of Physical, Mental or Emotional State A hearsay statement of a declarant=s then existing state of mind, emotion, sensation or physical condition is admissible Dying Declarations A statement by a deceased about the circumstances of their death in a criminal prosecution for which the death is an necessary element is admissible if the declarant made the statement under a fixed and hopeless expectation of impending death Official Statements Similar to business records - - a written report or record of a public official is admissible to prove its truth if the official had first hand knowledge of the reported facts and had a duty to make the report or record

(f)

(g)

(h)

(i)

B.

Opinion Evidence

Opinions are not admissible evidence unless they are (a) a compendious way for the laity to testify to a common everyday experience or (b) opinions of someone skilled in a recognized science or art and necessary (or at least helpful) for the trier of fact to understand something otherwise beyond the trier=s knowledge or understanding.

C.

Character Evidence

The State may not call evidence solely for the purpose of showing an individual is of bad character and therefore likely guilty of an offence. However, evidence may be called to prove guilt (or disprove a claim of good character) which incidentally shows bad character. The forbidden reasoning process is BAD CHARACTER as proof of GUILT; where GUILT leads to a conclusion of BAD CHARACTER no problem arises. An accused may call evidence of the accused=s general reputation for character in the community to show the accused is not likely guilty. Where character is so raised the State may rebut the claim by cross-examining or calling contrary evidence.

Evidence of bad character of non-parties may be called if otherwise admissible. D. A Confession

A confession, that is, (a) any statement made by (b) an accused to (c) a person in authority, is prima facie inadmissible unless the prosecutor shows it was free and voluntary.

E.

Obtained Contrary to Charter or quasi-Constitutional document

Evidence obtained as a result (direct or indirect) of a breach of a Charter right is inadmissible if its admission could bring the administration of justice into disrepute. Such rights are to be read broadly in light of Canada=s constitutional heritage and may be broad enough to include rights under, for example, the Bill of Rights. The burden of showing the beach, the nexus between the evidence and the breach and the disrepute lies on the party seeking to exclude the evidence.

F.

Obtained in breach of a confidential relationship

Relationship privilege (as opposed to settlement privilege) extends to criminal and civil proceedings. It applies by class or on a case by case basis. If a relationship is covered by a class, subject to exceptions special to each class, any communications within the class are privileged and not admissible. Classes include (a) solicitor-client (b) spousal (c) state policy making and (d) informant identity. Case by case privilege is established by Wigmore criteria which require the communication (a) arose in confidence (b) confidence was essential to the communication (c) the relationship sought to be protected is valued by society and (d) the harm caused by disclosure is greater than the damage to the trial process.

G.

Of Civil Settlement Discussions

Civil settlement discussions are privileged and information disclosed therein cannot be used in evidence at the trial of the dispute the settlement discussions were intended to resolve.

STEP THREE - - PREJUDICE v PROBATIVE VALUE? Even if the evidence is otherwise admissible, the party opposing such admission can still argue that the probative value of the evidence is slight (usually an argument that the evidence is only marginally probative as opposed to relevant) and the prejudice of such evidence is out of all proportion to its value. The question is Awould a jury, on seeing such evidence, decide to convict (acquit etc.), regardless of the matters actually proven@?

i.This is a summary only; it should be considered as nothing more than an aide memoire.

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