Admissibility Checklist

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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 ☐ prejudice outweighs probative value (time consumed, affect on trial fairness)

General Exclusionary Rules ☐ Not relevant or material ☐ Hearsay ☐ does any type of privilege apply (spousal, solicitor, litigation, public interest, informer, settlement) ☐ Opinion evidence ☐ Prior Consistent Statements for purpose of enhancing credibility with no other relevance ☐ Character Evidence (i.e. prepensity evidence) ☐ Collateral Facts ☐ Compelled Statements of Accused ☐ Prior sexual history of victim (for enumerated offences)

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

Documentary Evidence

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

Images and Video

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 ☐ before incident ☐ during incident ☐ after incident (Post-Offence Conduct)

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

If witness cannot recall events

• refresh memory

If witness says something NOT in prior statement