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Evidence In The Criminal Courts
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Evidence In The Criminal Courts


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  • 1.  
  • 2. 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
  • 3.  
  • 4. Direct Evidence
    • Testimony or other proof which expressly or straight-forwardly proves the existence of a fact.
    • There is no inference or presumption.
  • 5. 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
  • 6.
    • 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.
  • 7. 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
  • 8. 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
  • 9. 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
  • 10. 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’
  • 11. 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
  • 12. 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
  • 13. 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
  • 14. Polygraph Evidence
    • Are considered hearsay and thus inadmissible
    • Operator could only speak to whether the test took place, not the answers given.
  • 15. 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)
  • 16. 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.