Real Evidence

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General Principles

Real evidence consists of all tangible evidence, physical objects such as, tape recordings, computer printouts or photographs. It is evidence where "the trier of fact uses its own senses to make observations and draw conclusion, rather than being told about the object by a witness". It is evidence that "conveys a relevant first-hand sense impression to the trier of fact".

Real evidence, as with all other evidence, must first be relevant. Secondly, it must be authentic.

Not all physical objects are "real evidence", however. A photo line-up is not real evidence, rather it is "an aide to identification".

There are two theoretical approaches to admitting photographs and videos that have been applied in courts. There is the "silent witness" theory where the images speak for themselves after they have been authenticated. Then there is the "illustrative theory" whereby the images are simply supplemental to the oral testimony of a witness.

Burden
The burden of authenticating real evidence rests on the party seeking to tender the evidence.

Authentication
The standard of proof for the authentication of real evidence should be "prima facie case of authentication" or "some evidence", there is no need to prove a fact on a standard of balance of probability or reasonable doubt.

To be authentic the common law requires that there must be “evidence sufficient to support a finding that the evidence sought to be admitted is what it purports to be.”

Real evidence may be authenticated using circumstantial evidence. For example, a video may be authenticated by any witness who can provide circumstantial authentication evidence that the "video in question is a substantially accurate and fair depiction of what it purports to depict".

Appeal
The standard for the admission of evidence is a question of law and reviewable on a standard of correctness.

The question of the evidence meeting the standard is reviewable as mixed fact and law and reviewable on a standard of palpable and overriding error.

Procedure

There is no fixed formula for submitting real evidence, however, it is recommended that a procedure for submitting evidence be followed such as:

1. call a witness with personal knowledge of the object;
2. ask the witness to describe the object before showing it to the witness;
3. allow the witness to examine and identify it as genuine; and
4. ask that the object be entered as an exhibit, with the appropriate stamp applied by the clerk.

As a matter of practice, the party adducing copies of evidence, there should be two copies given to the court. One is for the witness and the other for the judge to review.

It has been suggested that there is no need to introduce the real evidence in every case.

Demonstrative Evidence

• see Demonstrative Evidence

Physical Objects

Handwriting and signatures

The trier-of-fact may make comparisons of handwriting without the need of expert evidence as it is analogous to comparison of video evidence.

Fingerprints

Fingerprint evidence is relevant to establish that a print left in a location was from a particular person, most likely the accused, which tends to inculpate the accused. This needs to be established by expert evidence.

A number of facts may be determined from fingerprints:

• whether the accused touched the object
• whether anyone else may have touched the object
• the manner of touch or grip the persons had on the object including the orientation of the hand(s).
• the recency of the touching based on the cleanliness of the object, the weather, and moisture

Most often all that will be gleaned from the fingerprint is that the object was touched by the accused. It will take other circumstantial evidence to establish that the accused touched the object at the relevant time and place.

This evidence can also be used to infer personal possession within the meaning of s. 4(3). When such an inference can be drawn will depend on the circumstances of the case and all the evidence. Such determination is a question of fact.

Computer Forensic Evidence

Any data found on a computer that was generated by an automated process is considered real evidence.

Photographs

In order to admit photographic evidence in Court, the party submitting the evidence must establish that:

• they accurately and truly represent the facts,
• are fairly presented and without any intent to mislead and
• are verified on oath by a person capable of doing so.

The person testifying to the photographs can be:

• the photographer
• a person present when the photograph was taken
• a person qualified to state that the representation is accurate, or
• an expert witness

A jury or witness should not look at any images or pictures until the question of authenticity has been resolved.

The age of a person in a photograph is a question of fact for the trier-of-fact, and does not need an expert.

Police sketches based on eye-witness descriptions will be admissible where the sketch artist is available for cross-examination.

Appellate Review
The admissibility of photos is reviewed on the standard of correctness.

Autopsy and Crime Scene Photographs

Graphic photographs of autopsies or crime scenes should not be admitted where the "inflamatory and prejudicial effect" of the pictures outweigh the probative value.

In jury trials, the judge must be particularly cautious to protect the accused's right to a trial.

The most typical purpose of admitting autopsy photographs themselves include:

1. to illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions;
2. to illustrate minutiae of objects described in the testimony of a witness, e.g., to show the nature and the extent of the wounds;
3. to corroborate testimony and provide a picture of the evidence and to assist the jury in determining its accuracy and weight;
4. to link the injuries of the deceased to the murder weapon;
5. to provide assistance as to the issues of intent and whether the murder was planned and deliberate;
6. to help the jury determine the truth of the theories put forth by the crown or defence, e.g.: as to which accused committed the crime; as to whether the crime was committed in self-defence;

The judge is recommended to evaluate the photographs or videos as follows:

1. identify the issues to which the photos are relevant;
2. The judge must determine the probative value of the evidence assessing its tendency to prove a fact in issue in the case including the credibility of the witnesses.
3. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue ... or because the risk that the jury may use the evidence improperly to prove a fact in issue.
4. The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

The photos must also be "dependably accurate, fair and authentic.

The judge can consider the regularity in which the public are exposed to imagery of brutality and violence when evaluating the prejudice arising from the photographs. Given the growing exposure of the public to graphic violence, there is a growing trend to permit admission of materials so long as the evidence is sufficiently probative.

Photographs in Lieu of Exhibits

See Proof of Ownership

Audio and Video Recordings

The requirements for admitting video evidence is similar as those of photos. Specifically, in the case of video tape there is the added danger of potential of tape alterations (editing, slow-motion replay, etc.), so the judge must be even more cautious when admitting video evidence. Accordingly, if it "is established that a videotape has not been altered or changed, and it depicts the scene of a crime, then it becomes admissible and relevant evidence."

Onus
The onus is on the Crown to establish that the video is authentic. The necessary standard will vary depending on "the substantial accuracy of the video recording, taking into account the purpose for which the evidence is tendered and the relative need for precision or accuracy in the video recording."

Authentication
Authenticating a video tape does not require expert evidence however should include some details verifying the accuracy of the tape to the recording system, the date of recording, the accuracy of the time stamp, and identify the setup of the system.

There is no obligation to prove that the video was unaltered before it can be authenticated as long as it is "substantially accurate and fair representation". However, if it proven that the tape was not altered or changed and it depicts relevant information than it will be admissible.

Proof of the tape's integrity is not necessary to admission.Nor is proof of the speaker's identity.

Where someone can only authenticate parts of the video and not others, it remains open to the judge to only admit those parts that were authenticated, excluding those segments that were not spoken to.

Gaps in a video tape should generally go to weight. This however should normally be accompanied by some explanation as to the reasons there are gaps.

Best Evidence Rule
The best evidence rule has minimal, if any application, to a copy of a video recording as opposed to the original.

Weight
Sufficiency of quality and clarity of a video is a question of fact. Review is limited.

Corroboration
As long as the video recording is of sufficient quality, the trier-of-fact can identify the accused without corroborating evidence.

The video footage evidence is considered real evidence and so cannot be said to "hearsay".

Excessive editing of a video tape may have created sufficient distortions that would render a video tape inadmissible on the basis of lack of authenticity and reliability.

Video Statement
For a videotape statement to be admissible it must be possible for the trier of fact to "form a fair and reliable assessment of the substance" of what is recorded. Where there may be issues to adequately here and understand the content the judge may require a transcript be made to assist the trier of fact before admitting it.

During an investigation by police, they may audio or video record any part of their interactions with witnesses or accused. There is no requirement that the subject consent to the police's actions but it would be expected that the police put the subject on notice that they are being recorded.

Judge required a transcript before admitting video statement of a complaint in a sex assault case.

A typed transcript however is not part of the legal duty of the crown to disclose relevant evidence.

Video re-enactments

Courts should be cautious when dealing with video re-enactments where the accused is not participating. It may have the tenancy to overly influence the jury. Nevertheless, the admissibility turns on whether the prejudicial effect outweighs the probative value.

Audio

Audio recording are to be treated in the same manner as witness testimony, but with the added weight provided that it is a more accurate record of past conversations. The use of private recorded conversations in a criminal trial usually requires a voir dire to be held.

A police officer can give evidence of the accused's natural voice at time arrest to establish voice identification as long as their is no trickery used to induce the accused to speak.

A recording of an accused's voice post arrest for the purpose of voice identification does not require a caution or warrant.

Child Pornographic Images and Video

In practice images and videos are typically admitted by way of the adducing of digital storage media (such as a CD/DVD) accompanied by a printed sample of the materials and/or a written description of the contents of the media.

During a trial, where the accused has formally admitted to the nature of the images or videos being child pornography and so viewing is not essential to the issue before the Court, the Crown can be prevented from leading evidence of the images that must be viewed by the judge. Instead, it is entirely in the discretion of the court to review the exhibits during trial.

Judges are required to accept into evidence and review images of child pornography submitted by the Crown as part of sentencing where the usual exclusionary principles do not apply. This includes reviewing the contents of discs should they be provided to the court.

There does not seem to be a strict requirement to introduce sample images before the court where there is consent of the defence.

See also Disclosure#Disclosing Child Pornographic Materials

See Also

• See Video Statement of Under 18 Year Old
• Circumstantial Evidence
• Discretionary Exclusion of Evidence