Admissibility Checklist

From Criminal Law Notebook

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
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