evidence in the criminal courts
TRANSCRIPT
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)