Admissibility Checklist: Difference between revisions

From Criminal Law Notebook
m Text replacement - "of incident" to "of the incident"
 
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{{HeaderForms}}
==All Evidence==
==All Evidence==




{|class="wikitable"  
{|class="wikitable"  
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; General Admission
; General Admission
* {{Box}} Identify one or more propositions that are sought to be proven by the evidence  
* {{Box}} Identify one or more propositions that are sought to be proven by the evidence  
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; Discretionary Exclusion
; Discretionary Exclusion
* {{Box}} [[Discretionary Exclusion of Evidence|prejudice outweighs probative value]] (time consumed, affect on trial fairness)
* {{Box}} [[Discretionary Exclusion of Evidence|prejudice outweighs probative value]] (time consumed, affect on trial fairness)
|
| style="width: 50%; vertical-align: top;"|
; General Exclusionary Rules
; General Exclusionary Rules
* {{Box}} Not [[Relevance|relevant or material]]
* {{Box}} Not [[Relevance|relevant or material]]
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* {{Box}} does any type of '''privilege''' apply (spousal, [[Solicitor-Client Privilege|solicitor]], litigation, public interest, informer, settlement)
* {{Box}} does any type of '''privilege''' apply (spousal, [[Solicitor-Client Privilege|solicitor]], litigation, public interest, informer, settlement)
* {{Box}} [[Expert Evidence|'''Opinion''' evidence]]
* {{Box}} [[Expert Evidence|'''Opinion''' evidence]]
* {{Box}} [[Prior Consistent Statements|Prior '''Consistent Statements''']], with no other relevance
* {{Box}} [[Prior Consistent Statements|Prior '''Consistent Statements''']] for purpose of enhancing credibility with no other relevance
* {{Box}} [[Character Evidence]] (i.e. prepensity evidence)
* {{Box}} [[Character Evidence]] (i.e. prepensity evidence)
* {{Box}} [[Collateral Fact Rule|'''Collateral Facts''']]
* {{Box}} [[Collateral Fact Rule|'''Collateral Facts''']]
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==Images and Video==
==Images and Video==
{{seealso|Electronic Documents}}
{{seealso|Electronic Documents and Records}}


{|class="wikitable"  
{|class="wikitable"  
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; Authenticate Recording
; Authenticate Recording
* Either:
* Either:
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** {{Box}} Person who observed the record on the device and any time-stamp associated with the record (authenticity inferred from circumstances)
** {{Box}} Person who observed the record on the device and any time-stamp associated with the record (authenticity inferred from circumstances)
*** {{Box}} Evidence of circumstancial reliability of the device
*** {{Box}} Evidence of circumstancial reliability of the device
|
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; Establish Creation Time
; Establish Creation Time
* Either:
* Either:
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{|class="wikitable"  
{|class="wikitable"  
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| style="width: 50%; vertical-align: top;"|
; Actus Reus and Circumstances
; Actus Reus and Circumstances
* {{Box}} Observation of incident or circumstances surrounding the incident
* {{Box}} Observation of the incident or circumstances surrounding the incident
* {{Box}} [[Real Evidence|Real evidence]] of items collected by police
* {{Box}} [[Real Evidence|Real evidence]] of items collected by police
** {{Box}} Recognition of the real evidence as sourced from circumstances surrounding the incident (including [[Continuity]])
** {{Box}} Recognition of the real evidence as sourced from circumstances surrounding the incident (including [[Continuity]])
* {{Box}} Propensity of the accused to engage in conduct similar to the offence ([[Similar Fact Evidence]])
* {{Box}} Propensity of the accused to engage in conduct similar to the offence ([[Similar Fact Evidence]])
|
| style="width: 50%; vertical-align: top;"|
; Identity
; Identity
* {{Box}} Recognition of accused as the culprit
* {{Box}} Recognition of accused as the culprit
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==Credibility and Reliability==
==Credibility and Reliability==
{|class="wikitable"  
{|class="wikitable"  
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; Credibility and Reliability of a Witness
; Credibility and Reliability of a Witness
* {{Box}} Animus, Bias, Dependence, Partiality, or Motive to fabricate
* {{Box}} Animus, Bias, Dependence, Partiality, or Motive to fabricate
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* {{Box}} Corroboration or absence of corroboration with other witnesses or objective evidence
* {{Box}} Corroboration or absence of corroboration with other witnesses or objective evidence
|}
|}
==Application to Cross-Examine Witness==
{{seealso|Adverse and Hostile Witnesses}}
; If witness cannot recall events
* refresh memory
; If witness says something NOT in prior statement

Latest revision as of 08:14, 19 May 2022

All Evidence

General Admission
  • Identify one or more propositions that are sought to be proven by the evidence
  • Does the evidence make the proposition more likely to be true
  • Is the evidence material to an legal element of proof or issue to be determined in the case
  • Is the proposition collateral, possibly excluded for collateral fact rule
Discretionary Exclusion
General Exclusionary Rules

Hearsay

  • Is it a statement or an implied assertion
  • Is it intended for the truth of what is being said or some other purpose
Principled Exception
  • is the person who made statement able to be meaningfully cross examined
  • is the context of the statement suggesting that it is trustworthy (motivation for accuracy, sufficient testing of evidence)

Prior Statement of Accused

  • is it excludable as a prior consistent statement

Disreputable Conduct

Documentary Evidence

  • CEA Business Records
    • Notice, Affidavit
  • CEA Financial Records
    • Affidavit
  • Common law business records
  • principled Admission

Images and Video

See also: Electronic Documents and Records
Authenticate Recording
  • Either:
    • Person who created the record can vouch for authenticity
    • Person who observed the creation of the record on the electronic device
    • Person who observed the record on the device and any time-stamp associated with the record (authenticity inferred from circumstances)
      • Evidence of circumstancial reliability of the device
Establish Creation Time
  • Either:
    • Person who created the record can vouch for time
    • Person who observed the creation of the record on the electronic device
    • Person who observed the record on the device and any time-stamp associated with the record (authenticity inferred from circumstances)
      • Evidence of circumstancial reliability of the device

Relevance and Materiality

Actus Reus and Circumstances
  • Observation of the incident or circumstances surrounding the incident
  • Real evidence of items collected by police
    • Recognition of the real evidence as sourced from circumstances surrounding the incident (including Continuity)
  • Propensity of the accused to engage in conduct similar to the offence (Similar Fact Evidence)
Identity
  • Recognition of accused as the culprit
  • Circumstantial evidence consistent with accused as culprit
  • Circumstantial evidence inconsistent with available third parties as culprit
Mens Rea
  • Observed utterances/conduct of accused to infer an awareness of circumstances OR intention

Credibility and Reliability

Credibility and Reliability of a Witness
  • Animus, Bias, Dependence, Partiality, or Motive to fabricate
  • Tainting of evidence (determine how much claimed is based on second-hand info or mere personal belief)
  • Quality of Observation
    • Opportunity to Observe (frequency of personal presence, duration, distance, obstructions)
    • Reasons (or abscence of reasons) to make observations at the time
    • Focus on attention at the time (distractions, etc)
    • Emotional state at time
    • Level of Intoxiation
  • Quality of recollection and recall
    • Opportunity to record the memory accurately
    • Time of recording of the memory
    • Opportunity to refresh memory
    • Timing of memory refresh memory
    • Exposure to other versions of events through witnesses or the news
  • Contradictions with Common Sense
    • Accuracy of memory given level of importance at the time, given the lack of recording or corroborating records
    • Failure to record only select events of importance
  • Contradictions on Prior Statements
  • Demeanour and manner of response
  • Plausibility and Possibility
    • Reasons and explanations for choice of actions (with special consideration for sexual offenes)
    • Whether choice of actions match emotional state
    • Signs of embellishment or minimization (eg. efforts to cast self in a good light)
    • How the witness responds and changes evidence when confronted with new evidence
    • Overly and inordinately complex answers
  • Proven history of related dishonesty
  • Corroboration or absence of corroboration with other witnesses or objective evidence

Application to Cross-Examine Witness

See also: Adverse and Hostile Witnesses
If witness cannot recall events
  • refresh memory
If witness says something NOT in prior statement