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”