Evidence: Sources, Objectives and Trial Context

EVIDENCE: SOURCES, OBJECTIVES AND TRIAL CONTEXT

Course: Evidence

Professor: Colleen Smith

Date: Spring 2012

Law of Evidence:
Three types of rules:
Rules of Process
Rules of Admissibility
Rules of Reasoning
Applies anytime facts in disputes: trial, prelim trial, sentencing hearing, Charter app, etc.
Sources of Law of Evidence
Common Law (most of evidence law lies here)
Statutes (not code, but supplements common law)
CEA – governs CC and Fed jurisdiction – incorporates BCEA provisions through s.40
BCEA – governs BC– applies
Aboriginal Law (oral histories admissible in ab law matters)
Constitution
Objectives of Evidence Law
Truth
Fairness
Social & structural values

Basic Principle: All evidence that is relevant to a fact in issue is admissible, unless there is a legal reason for excluding it. (R v. Seaboyer, R v. Watson)

Relevance and Materiality(R v. Collins)

Two elements of relevance:

Factual/Logical Relevance: Evidence is relevant, if as a matter of logic and experience, it tends to prove the proposition for which it is advanced
Legal Relevance (Materiality): Evidence is material if it is directed at a fact in issue in the case
depends on nature of the action:

crim- look at elements of offence

civil- look at pleadings

Grounds for Excluding Relevant Evidence
Potential to distort the fact-finding process (unreliable or prejudicial)
Would unnecessarily prolong trial or confuse issues (eg. Collateral facts)
Undermine an important value other than fact-finding (eg. Fairness, privilege, Charter rights)
Probative value of the evidence outweighed by its prejudicial effect (eg. personal facts invoke sympathies that lead to improper reasoning)
Process
Is the evidence logically relevant?
Is the evidence legally relevant (material)?
Is there a legal reason to exclude the evidence?
Does the prejudicial effect of the evidence outweigh its probative value?
Admissibility vs. Weight
Admissibility – Whether a piece of evidence is included. Q of law decided by the judge.
Weight – The significance attached to admitted evidence. Q for trier of facts.

Trends in Evidence Law
Purposive approach – move from pigeon holes to fundamental principles (eg. hearsay, corroboration & unsavoury witnesses, move from Collins to Grant test)
Development of overarching exclusionary discretion (PV v. PE, similar facts rule)
Increased admissibility – modern jury viewed as intelligent and trustworthy – comes along w giving better jury instructions
Eg. more witnesses deemed competent than in past (spouses, convicts, children)
Flexible approach to best evidence rule
Flexibility as to meaning of “community” in general rep evidence

The Trial Process

Evidence Put Before Trier of Fact Through:
Witnesses
Exhibits
Real evidence (eg. crime site, body or item of clothing “in situ”, videos, docs)
Demonstrative evidence – helps ToF to better understand what happened (eg. sketches of scene, photos of scene after the fact, objects not “in situ,” re-enactments)
Admissions – made by parties about certain facts
Judicial Notice – court may take JN of notorious facts
Elements of Trial
Crown of Plaintiff’s Case in Chief
Opening statement – roadmap for evidence and case
Witnesses

Direct examination – no leading questions; Qs must be relevant
Cross examination – Qs may be leading or not; clarifying matters; undermining credibility “the best engine for the discovery of truth”
Re-direct – Crown/P may ask further Qs after cross; chance to address matters that arose in cross which could not be reasonably expected

(dangerous and limited)

Crown/P case closes

Motions for a Directed Verdict –D asks court to rule that Crown/P has not proven case

(see issues of proof)

Defence’s Case in Chief
Same process as Crown/P
Crown/Plaintiff can reopen - discretionary procedure only if something has come up that needs to be addressed and that P couldn’t have anticipated and needs a chance to respond  D then gets another chance to respond to that
Closing Statements
Criminal Trial: If D called evidence, D goes first. Otherwise Crown goes first.
Civil Trial: P closes first, then D.
Closings only done for a jury in Canada
Judge’s Instructions to Jury
Jury deliberations
Verdict
Sentencing

Verdict

ISSUES OF PROOF

Burden and Standard of Proof
Burden –Who has the obligation to satisfy the ToF on the factual matter at issue?
Standard – degree to which party must convince ToF in order to discharge the burden

Evidentiary and Persuasive Burdens
The persuasive burden of proof is on the party who, in law, is required to establish the relevant facts to proceed  final test of evidence

a.Civil - must establish cause of action on balance of probabilities

b.Crim - must establish guilt beyond reasonable doubt

The evidentiary burden is on the party whose duty it is to raise the issue.

a.A party under an evidentiary burden must adduce or point to some relevant evidence capable of supporting a decision in the party’s favour on an issue before that issue can go to the ToF  threshold test of evidence

b.This burden is not necessarily on the same party as the persuasive burden.

Burden and Degree of Proof in CRIMINAL PROCEEDINGS

Proof Beyond a Reasonable Doubt

a.Golden thread in English criminal law is presumption of innocence and requirement of proof BRD – high standard to avoid wrongful conviction

b.Charter s.11(d): Any person charged with an offence has the right...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal

c.BRD does not require absolute certainty. Must be a real doubt based on evidence and reason, not an imaginary doubt (R v. Lifchus)

Proof BRD and Jury Charges
The onus upon the Crown to prove the guilt of the accused BRD is inextricably linked to the presumption of innocence. If the jury charge is lacking in this respect, the trial must be lacking in fairness. Must have proper instruction of the jury for the trial to be fair. (Lifchus)
Judge should tell jury(R v. Lifchus):

BRD intertwined with the presumption of innocence
burden rests on the prosecution throughout the trial and never shifts to the accused
a reasonable doubt is not a doubt based on sympathy or prejudice
rather, it is based upon reason and common sense
it is logically connected to the evidence or absence of evidence
not a frivolous or imaginary doubt
not absolute certainty, but more than probably guilty
Judge should not tell jury (R v. Lifchus):

“reasonable doubt” an ordinary expression with no special meaning in crim context
to apply same standard they apply to important decisions in their own lives
equate proof BRD to “a moral certainty”
qualify the word “doubt” with adjectives other than “reasonable”, such as “serious”, “substantial”, or “haunting” which may mislead the jury
they may convict if they are “sure” that accused is guilty, before providing them with a proper definition as to the meaning of the words BRD
reasonable doubt is not a magical incantation
Judge must explain that BRD is something above BOP (R v. Starr)
Charge must be in “substantial compliance” with Lifchus such that when read as a whole clear that jury could not have been under any misapprehension as to the correct burden and standard of proof (R v. Starr)

NB: “Crim G” gives model instructions for judges on variety of subjects including BRD

Jury charge must make clear that you cannot apply BRD standard in piecemeal fashion (R v. Morin)

– must consider evidence in its totality (eg. D commonly attempts to discredit each piece of Crown’s evidence in impaired driving cases)

Jury Charges where accused testified (W.(D.) charges) (R v. W.(D.))
Judge must tell jury:

a.First, if you believe testimony of accused, you must aquit

b.Second, if you do not believe testimony of accused but are left w reasonable doubt by it, you must acquit

c.Third, even if you are not left in doubt by evidence of Acc, you must ask yourself whether, on the basis of the evidence you do accept, you are satisfied beyond a reasonable doubt of the guilt of the Acc.

Charge will likely survive appeal scrutiny if made clear that:

a.Jury not simply to choose btw 2 versions of events

b.Jury must consider all evidence when determining reasonable doubt

c.Any reasonable doubt must be resolved in favour of accused

Motion for Directed Verdict
Test for directed verdict of acquittal: Is there some evidence of each of the elements of the crime upon which a properly instructed jury could convict?

a.Evidentiary burden

b.Limited weighing of evidence now allowed by judge

c.If you lose this motion, the case is over. D is essentially saying they will not call evidence, and judge skips to end of case.

Putting a Defence in issue
“air of reality” test (R v. Cinous): could properly instructed jury acting reasonably acquit the accused on basis of the defence?

a.Judge to consider totality of evidence

b.Not aimed at deciding substantive merits of case – no determinations re credibility of witnesses, weighing of evidence, finding facts or making inferences

c.A question of law

Judge must instruct jury of any defence that has air of reality even if D doesn`t raise it (eg. D claiming innocence for 1st degree murder may not want to raise 2nd degree, but would want judge to raise it to jury)
Defences to go to jury discussed at pre-charge conference before closing – btw judge and counsel in open court, but w/o jury
Purpose of test to screen out frivolous defences

Burden and Degree of Proof in CIVIL PROCEEDINGS

Proof on a balance of probabilities
The plaintiff typically bears both the evidentiary and the persuasive burden on all elements of the action.
The plaintiff has to lead evidence capable of supporting the facts that the plaintiff alleges, and the plaintiff must then satisfy the trier of fact on a BOP that the facts alleged are true.
No evidence application (SCCR R 12-5(4) and (5))
R 12-5(4)– D may apply to have action dismissed on ground that P P has not met evidentiary burden
i. Question on the point of law – i.e. no weighing, all is believed.

ii. D may still run their case if they lose the application (R 12-5(5))

Insufficient evidence application (SCCR R 12-5(6) and (7))
R 12-5(6) - D may apply to have action dismissed on ground that P’s evidence insufficient to make the case.
D may only make application after deciding not to call evidence. Effectively skips to the end of the case  if moton denied, D loses.
Summary Judgment(SCCR R 9-6)
Party makes application before trialasking court for summary judgment
If satisfied there is no genuine issue for trial w respect to claim or defence, court may dismiss case or pronounce judgment accordingly

Burdens in CONSTITUTIONAL LITIGATION

In Charter litigation, the applicant bears the burden of establishing, on a BOP, the facts relevant to a claim that a Charter right has been infringed (Oakes)

Warrentless searches and “waived right” reverse BoP  R must show they didn’t
s.1 shifts the burden to the Crown to prove it is a justified breach. This is a “rigorously” applied BOP. Court does not want to likely justify a breach of rights.
s.24(2) – burden on applicant to establish breach and to establish that evidence should be excluded

RELEVANCE, MATERIALITY, AND PROBATIVE VALUE

Steps for Assessing Relevance
What are issues at stake?
What fact is this evidence being offered to prove?
Does the evidence tend to prove or disprove this fact? Legal relevance
Is this fact at issue? Materiality
PV vs. PE? residual Discretion – NB higher standard for excluding Acc evidence
Relevance Generally
Determined at outset of trial but depends on context of other evidencewhat is relevant in a trial is dynamic and ever-changing throughout process. Counsel may make submissions about relevancy.
No minimum threshold for relevance (R v. Watson) – no min PV required
R v.Watson: evidence that deceased always carried a handgun + trafficked marijuana deemed relevant to D’s defence of spontaneous gun battle
R v.Bell: evidence that accused a recreational drug trafficker does not tend to prove that acc would have better access to date rape drugs than other recreational drug users  not relevant
R v. D.(A.): fact that deceased willing to continue relationship w physically abusive X-bf does not tend to prove that she would be willing to commence initimate relations w man who sexually assaulted her best friend  not relevant, and if relevant PE outweighs PV
R v. Rallo: on charge of wife murder, evidence that acc husband was having an affair relevant to motive if affair not too remote in time.
Circumstantial vs. Direct Evidence
Direct = evidence proves/disproves a fact w/o requiring an inference (e.g. I looked at the light and saw it was green)
Only one determination credibility/reliability of witness
Usually eye-witness testimony
Circumstantial = evidence which, if believed, permits one to infer the truth of another fact (e.g., I saw cars moving through the intersection; this infers the light was green)
Two or more determinations  Do you believe and are you willing to infer…?
Assessment depends on credibility/reliability of witness and correctness and strength of inference
proving/disproving credibility, intent always done through circ evidence
Residual Discretion: Probative Value vs. Potential for Prejudice(R v. Seaboyer)
Probative value: usefulness in finding truth
Prejudicial effects in order of importance:
arouse jury prejudice
create a distracting side issue
consume too much time
Unfairly suprise other party
judge always has the ability to exclude evidence on this ground
unclear whether this is aspect of legal relevance or general exclusionary power (R v. Mohan)
Crown/P evidence or D evidence in civil case: exclusion where PE outweighs PV (Sweitzer test adopted in Seaboyer)
Accused evidence: exclusion where PE substantially outweighs probative value
Rationale: presumption of innocence, right to full answer and defence etc.
NB courts particularly concerned about PE of acc character evidence
R v. Hunter: PE found to outweigh PV of overheard, out-of-context statement made by acc to lawyer “I had a gun but did not point it”  statement deemed not relevant
R v. Tuck: fact that deceased smuggled drugs into club in his underwear tends to prove that he smuggled knife into club – potential PE through propensity reasoning that deceased was a violent person can be addressed through jury charge
R v.Abbey: acc membership in street gang tends to prove he had motive to kill deceased  relevant. PV outweighs PE of acc having bad character, both b/c judge can give instructions to jury to limit use of evidence, and b/c PE balanced btw acc and deceased (both in gangs). Fact that gang members have access to guns tends to prove acc had gun on day in Q, but PV is weak and is outweighed by PE.
R v.Arcangoli (the class Marconi problem): evidence of third party S’s criminal record and involvement in previous stabbing tends to show S committed the stabbing rather than accused. No PE where character evidence pertains to 3rd party, but such evidence will not be admitted unless relevant. Flight from scene may support inference of guilt, but need to be cautious with this inference; where flight equally consistent with guilt for two offences, cannot have PV for one of them. Jury must be charged accordingly.

Assessing the Relevance and Probative Value of Circumstantial Evidence (see handout)
Evidence + Premise (generalization) inference = Conclusion
Articulate the generalization
Assess the strength of the generalization using “except when” analysis

and “especially when” analysis + loosely approximate PV

WITNESSES: COMPETENCY AND COMPELLABILITY

General Rule: parties must prove or disprove all facts in issue through the oral (viva voce) evidence of witnesses.
Key Witness Questions:

a.Competent?

b.Compellable?

c.Oath?

d.Privilege?

e.Credible?

Competence, Compellability, Privilege and Credibility
Competence = is witness fit and qualified to testify?
General CL rule: everyone is competent to testify in any case.
Compellability = can witness be forced to testify?
General rule: a competent witness is a compellable witness
Privilege = protects communications made in course of certain relationships (see privilege)
General CL rule: any competent and compellable witness must answer any Qs put to them by court/counsel that are relevant and otherwise admissible
Exception: evidentiary privileges allow a competent and compellable witness not to answer certain Qs
Overlaps with compentence  courts often confuse these
Credibility = reliability of witness’ testimony

COMPETENCE

General
Historically, many witnesses deemed incompetent (eg. spouses, convicted felons) Now more witnesses deemed competent  can test reliability through cross-exam.
people convicted of crimes are now competent witnesses (CEA, s.3)
Spouses of the Accused in Crim Context
At CL spouses always incompetent. Rationale: single legal person, maintain marital harmony, repugnance of state using spouses to prove guilt (Salituro)
Now, s.4 CEA governs:

NB: spouses = legally married (including same sex), not CL

1.Spouse of accused is always competent witness for the defence (s.4(1))

2.The wife or husband of the accused is generally NOT competent for the prosecution (R v. Hawkins), EXCEPT:

3.Spouse of acc is competent and compellable for prosecution w respect to certain sexual offences (s.4(2))

4.Spouse of acc is competent and compellable for prosecution w respect to certain violent offences against victim under 14 (s.4 (4))

5.CL preserved through s.4(5)

Salituro: Irreconcilably separated spouses are competent to testify for prosecution

1.incremental change in CL, promotes s.15 equality

Spouses competent to testify for prosecution where acc has threatened the well being (person, liberty or health) of the spouse or their children. (Schell )
No comment allowed on failure of spouse to testify by judge or prosecution (s.4(6))
R v. Hawkins: during relationship off-period, gf of acc gives statements against acc to PO and at prelim. gf and acc marry before trial and gf recants earlier statements. Crown requests exception to competence rule for sham marriages. Court: if law changed, gets into motivations for marriage + may increase perjury wife not competent/compellable. Different from Salituro, where wife wanted to testify.
Spouse of accused is competent and compellable for defence or Crown for provincial offence (BCEA s.6; R v. Gosselin (adds compellable))

Spouses of Accused in Civil Context
Spouses of accused are competent and compellable witnesses (s.7(1))
Mentally Disabled and Children in Crim Context
Challenged Mental Capacity
CEA 16(1): Where mental capacity of person over 14 challenged, court shall conduct an inquiry to determine whether the person:

1.Understands the nature of an oath or solemn affirmation