Admissibility Checklist

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

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

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