Admissibility Checklist: Difference between revisions

From Criminal Law Notebook
m Text replacement - "'''([a-zA-Z]+ [a-zA-Z]+ [a-zA-Z]+)'''<br>" to "; $1"
No edit summary
Line 1: Line 1:
<!--
==All Evidence==
==All Evidence==


{|class="wikitable"  
{|class="wikitable"  
|-
! __________!! Preparation Items !! __________
|-
|
|
|
'''General Admission'''
'''General Admission'''
* 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  
* Does the evidence make the proposition more likely to be true
* {{Box}} 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
* {{Box}} 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
* {{Box}} Is the proposition collateral, possibly excluded for collateral fact rule
'''Discretionary Exclusion'''
'''Discretionary Exclusion'''
* prejudice outweighs probative value (time consumed, affect on trial fairness)
* {{Box}} prejudice outweighs probative value (time consumed, affect on trial fairness)


; General Exclusionary Rules
; General Exclusionary Rules
* [[Hearsay]]
* {{Box}} [[Hearsay]]
* does any type of privilege apply (spousal, solicitor, litigation, public interest, informer, settlement)
* {{Box}} does any type of privilege apply (spousal, solicitor, litigation, public interest, informer, settlement)
||
|
|}
|}


==Hearsay==
==Hearsay==
* Is it a statement or an implied assertion
* {{Box}} Is it a statement or an implied assertion
* Is it intended for the truth of what is being said or some other purpose
* {{Box}} Is it intended for the truth of what is being said or some other purpose


; Principled Exception
; Principled Exception
* is the person who made statement able to be meaningfully cross examined
* {{Box}} 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)
* {{Box}} is the context of the statement suggesting that it is trustworthy (motivation for accuracy, sufficient testing of evidence)




==Prior Statement of Accused==
==Prior Statement of Accused==
* is it excludable as a prior consistent statement
* {{Box}} is it excludable as a prior consistent statement
 


==Disreputable Conduct==
==Disreputable Conduct==


==Documentary Evidence==
==Documentary Evidence==
* CEA Business Records
* {{Box}} CEA Business Records
** Notice, Affidavit
** {{Box}} Notice, Affidavit
* Common law business records
* {{Box}} CEA Financial Records
* principled admission
** {{Box}} Affidavit
-->
* {{Box}} Common law business records
* {{Box}} principled Admission
 
 
==Images and Video==
 
; Authenticate Recording
* Either:
** {{Box}} Person who created the record can vouch for authenticity
** {{Box}} Person who observed the creation of the record on the electronic device
** {{Box}} Person who observed the record on the device and any time-stamp associated with the record (authenticity inferred from circumstances)
 
; Establish Creation Time
* Either:
** {{Box}} Person who created the record can vouch for time
** {{Box}} Person who observed the creation of the record on the electronic device
** {{Box}} Person who observed the record on the device and any time-stamp associated with the record (authenticity inferred from circumstances)
 
 
==Relevance and Materiality==
 
; Actus Reus and Circumstances
* {{Box}} Observation of incident or circumstances surrounding the incident
* {{Box}} Propensity of the accused to engage in conduct similar to the offence ([[Similar Fact Evidence]])
* {{Box}} Real evidence of items collected by police
* {{Box}} Recognition of real evidence as sourced from circumstances surrounding the incident
* {{Box}} Recognition of accused as the culprit
 
; Mens Rea
* {{Box}} Observed utterances/conduct ''of accused'' to infer an awareness of circumstances OR intention
** {{Box}} before incident
** {{Box}} during incident
** {{Box}} after incident ([[Post-Offence Conduct]])
 
{|
|
; Credibility and Reliability of a Witness
* {{Box}} Animus, Bias, Dependence, or Partiality
* {{Box}} Context of Observation
** {{Box}} Opportunity to Observe (duration, distance, obstructions)
** {{Box}} Reasons (or abscence of reasons) to make observations at the time
** {{Box}} Focus on attention at the time (distractions, etc)
* {{Box}} Quality of recall
** {{Box}} Opportunity to record the memory accurately
** {{Box}} Time of recording of the memory
** {{Box}} Opportunity to refresh memory
** {{Box}} Timing of memory refresh memory
** {{Box}} Exposure to other versions of events through witnesses or the news
* {{Box}} Contradictions with Common Sense
** {{Box}} Accuracy of memory given level of importance at the time, given the lack of recording or corroborating records
** {{Box}} Failure to record only select events of importance
* {{Box}} Contradictions on Prior Statements
|}

Revision as of 14:48, 6 February 2019

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
  • Hearsay
  • does any type of privilege apply (spousal, solicitor, litigation, public interest, informer, settlement)

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

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)
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)


Relevance and Materiality

Actus Reus and Circumstances
  • Observation of incident or circumstances surrounding the incident
  • Propensity of the accused to engage in conduct similar to the offence (Similar Fact Evidence)
  • Real evidence of items collected by police
  • Recognition of real evidence as sourced from circumstances surrounding the incident
  • Recognition of accused as the culprit
Mens Rea
  • Observed utterances/conduct of accused to infer an awareness of circumstances OR intention
Credibility and Reliability of a Witness
  • Animus, Bias, Dependence, or Partiality
  • Context of Observation
    • Opportunity to Observe (duration, distance, obstructions)
    • Reasons (or abscence of reasons) to make observations at the time
    • Focus on attention at the time (distractions, etc)
  • Quality of 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