Rules of Evidence Developed over many years, very

complex Found in common and statute law If admissibility of evidence is in question,

a voir dire will be held – a trial within a trial

All witnesses are protected from self-incrimination and evidence must not be used to incriminate that witness in any other proceeding

Direct Evidence

Testimony or other proof which expressly or straight-forwardly proves the existence of a fact.

There is no inference or presumption.

Circumstantial Evidence

A collection of facts that, when considered together, can be used to infer a conclusion about something unknown.

Usually a theory, supported by a significant quantity of corroborating evidence

If a witness testifies that the defendant was seen entering a house, then screaming was heard, then the defendant was seen leaving, carrying a bloody knife, that is circumstantial evidence; if a witness testifies that he/she actually saw the defendant stabbing the victim, that is direct evidence. Similarly, if a videotape is entered into evidence showing the defendant entering the house, stabbing the victim, and leaving the house, that too is direct evidence.

Privileged Communications Any communications that cannot be

required to be presented in court as evidence.

Spouses, parisioners and clergy, patients and doctors, lawyers and clients

There are exceptions to the rule related to spouses

Similar Fact Evidence

Evidence that shows the accused has committed similar offences in the past.

Used by the Crown to imply that the accused has committed the offence before and thus again.

Discredits the accused’s past Can be extremely damaging and will

often not be allowed

Hearsay Evidence Something that someone other than the

witness has said or written. Usually not admitted as evidence.

However… An out-of-court statement may be

admitted, but only as proof it was made, not its content

If quoting a person who was dying Must be necessary and reliable

Opinion Evidence What an expert witness thinks about

certain facts in a case Unless the expert is qualified, his or her

opinion is generally inadmissable To be admitted it must be relevant and

necessary to help the judge or jury make a decision.

Can be powerful as the witness may be seen as infallible. Such evidence should only be allowed if the topic is outside the ‘experience and knowledge of a judge or jury’

Character Evidence

The Crown may not use questions to indicate the accused has a criminal character or nature

The defence is allowed to use character evidence to support the accused’s credibility

If the defence does this, the Crown may then present Similar Fact Evidence

Photographs

May be entered as evidence if they can be identified to be an accurate portrait of the crime scene

If meant to merely inflame the jury, the evidence may not be allowed

Electronic Devices and Video Only admissible if the rules have been

followed Generally this means a warrant Police may intercept communications if

they believe the situation to be an emergency

If one person consents, there may be a recording

This should treated as a last resort Public video surveillance does not need

warrants, but one on private property do

Polygraph Evidence

Are considered hearsay and thus inadmissible

Operator could only speak to whether the test took place, not the answers given.

Confessions

Any statement made by an individual who was not told of his rights, can be excluded

A statement can be inculpatory (admission) or exculpatory (denial)

If there is reason to believe that a confession was not voluntary, it may be rejected (promising leniency can cause this)

Illegally Obtained Evidence Would admitting the evidence bring the

‘administration of justice into disrepute’? This relies on whether ‘the reasonable person’ fully informed of the facts, would be shocked if a judge allowed the evidence to be admitted.