What is required for an oath or affirmation? Cite cases
All that is required is an understanding that you are assuming a moral obligation (Bannerman) with the added responsibility to tell the truth. For swearing, you must appreciate the duty to speak the truth, such as penal consequences (Walsh)
What is DAI's takeaway regarding unsworn evidence?
No inquiries into whether the witness understands the nature of telling the truth.
McConnell and Beer takeway? What does Prokofiew add to it?
Trial judge can comment on ∆'s failure to testify only to affirm their rights (McC and Beer). But only where it is a realistic concern (Prokofiew).
What does Noble say about the testimonial competency of the accused?
No adverse inference can be drawn from ∆'s silence - it violates the presumption of innocence, except for lack of explanation once crown proves its case.
What can you do to refresh memory in cross-examination?
You can show hearsay documents that are past recollections recorded, but they must be reliable, vivid, and affirmed by the witness.
What does Lyttle say about cross-examination?
You just need a good faith basis for CX on a point. You must CX a witness on a point before adducing evidence to contradict him.
What is the fundamental rule of evidence? (no case)
Everything that is relevant to a fact in issue is admissible unless there is a legal reason to exclude it.
How is relevance determined? (no case)
1. What is the matter in dispute to which it is related? - element of an offence, identity, motive, procedure, credibility?
2. How does the evidence make this matter more or less likely to be the case? - a legitimate chain of inference, changing probabilities.
What does Watson say about relevancy?
Evidence of habit is probative, it is an inference of conduct from conduct.
i.e. V carrying a gun means he might have pulled it out on ∆, supporting defence theory.
Evidence of disposition is prejudicial, it is an inference from conduct from a state of mind, based on previous conduct.
What are some examples of relevant and non relevant matters?
An interest in a subject doesn't mean you're more likely to commit the crime; Finding V attractive is not relevant to motive for sexual assault; Detailed poem about killing V could be relevant with more evidence.
What does Seaboyer say about PV, PE?
That the balance of PV, PE is a principle of fundamental justice. The defence will only exclude evidence if prejudicial effect substantially outweighs probative value.
What is hearsay? What is the danger of hearsay?
Hearsay is an out-of-court statement offered as evidence for the truth of its contents. We cannot assess the testimonial factors (perception, memory, language, sincerity) - the hearsay dangers are it is not given under oath, declarant cannot be CX, declarant cannot be observed.
What are the facts of Subramaniam, Wildman, and Creage as they relate to non-hearsay words?
Sub (chinese communists): not hearsay to show the statement was made, to support a duress defence.
Wild (∆ knew his daughter was killed by an axe): Not hearsay to show the statement was made, to explain a person's subsequent conduct.
Creaghe (cancelling car insurance before a crash): Nor hearsay to show the statement was made to prove the elements of an oral contract.
What are the facts of Baldree and what does it say about implied hearsay? Is there a case that qualifies it?
Baldree: During questioning, ∆ got a call and officer picked up - caller was looking for cannabis. It is implied hearsay for the officer to tender that phone call to show that the caller thought ∆ was a drug dealer (the offence at issue).
Ly: says an officer's phone call staging a drug deal is not hearsay to explain ∆'s appearance at the meeting place.
What do the facts of Bedingfield, Ratten, and Clark say about res gestae?
Bedingfield is an earlier case, it said if the statement wad made after it was all over, res gestae doesn't apply.
Ratten says that tendering a phone call to show it was made during the event is res gestate if it had sufficient intensity/drama.
Clark says a neighbour overhearing V saying she was stabbed, right after it happend, is still res gestae?
What is the name of the fourth res gestae case, and what proposition does it advance?
Folland: res gestae does not apply to a witness, only the victim [or accused] because the conditions of stress that make it reliable are not present.
What do the facts of O'Brien, Pelletier, and Lucier say about statements against interest (hearsay exception)?
O'Brien: Charges were stayed and declarant confessed to a lawyer - since it was in private and no prospect of penal sanctions, it is not a statement against interest.
Pelletier: Even if implying a defence, if the declarant's statement is sufficiently inculpatory, it is admissible.
Lucier: If a declarant's statement is also inculpatory of the accused, it is inadmissible.
What does Potvin say about the prior judicial proceedings exception to hearsay?
As long as ∆ had an opportunity to CX the witness at the previous proceeding, s 7 is not violated.
What are the facts of Youlden and Wysochan? What do these cases say about the statements concerning bodily and mental condition exception to hearsay?
Youlden: (workplace injury, told coworker, went drinking after, died). Statements by a deceased when he is hurt are admissible if there is no other means of proving bodily or mental feelings.
Wysochan: (shot in the presence of husband, identity at issue, asked a neighbour for her husband and told him she's too hot). The statements contained no facts necessary to be proved, but they support the inference her husband didn't kill her.
What are the facts of Mutual Life Insurance, Wainwright, and Thompson? What do they say about the statements of intention exception to hearsay? How does P(R) fit in here?
Broad US approach: Mutual Life Insurance v Hillmon (identity of deceased at issue - body found in a lake): Letters to wife are competent evidence of witness's intention to go with H, which made it more probable he acted on the intention.
Narrow UK approach
Wainwright (V's statement that she was going to an address where she later died, not admissible): Not part of the res gestae, so not admissisble. No way of knowing V followed through on her intention.
Thompson (abortion charge, V stated she intended to perform it on herself): Admitting this would make res gestae or statements against interest useless?
What are the facts and decision of P(R)?
(V made statements prior to her disappearance stating fear of ∆, wanting to end their relationship, and ∆'s controlling tendencies.
Statements not admission to show intentions or actions of other people, or that facts referred to in the statement actually happened. Statements made much earlier than the incident and don't show an intention have low PV. Statements that refer to ∆'s behaviour and conduct have high PE.
What is the history of the principled approach to hearsay? Myers v DPP, Ares v Venner, Khan, Smith, KGB, Hawkins, Starr, Khelawon. Is there one more?
Myers (car scammer - business records): declarants were unavailable but not dead.
Ares (skiier - medical negligence): nurses were unavailable not dead, their notes informed doctor of V's condition deteriorating before arm had to be amputated.
Khan (child's hearsay testimony): circumstantial guarantees of reliability: timing, demeanour, personality of child, reasons for fabrication - children have their own stamp of reliability)
Smith (V phone called from hotel, found dead): consider the 4 testimonial factors - sinceretiy - there was motive to lie for one of the calls.
KGB (fight led to death, prior inconsistent statement of witness): admit both and let trier of fact decide, if one has enough procedural reliability (oath, CX, presence)
Hawkins (spousal incompetence, gave testimony at prelim): identify the specific hearsay danger - prelim testimony usually satisfies threshold reliability. internal contradictions go to ultimate reliability.
Starr (autopac scam, gave statement of intention to girlfriend): traditional exceptions must yield to the principled approach but still use them. V had motive to lie to GF because he was with another girl.
Khelawon (retirement home accident or assault by manager? - statement to employee): statements relevant to explain how V was injured - applies both types of reliability - no oath, no CX, just video. No cogency, conflicting medical evidence, motive to lie.
Bradshaw (Mr Big operation, Vetrobec witness reinacted murder and implicated ∆) - corroborative evidence must help overcome hearsay dangers. Didn't help witness's sincerety, he could have lied in corroborative evidence.
What do the facts of Graat say about lay opinion evidence?
Police officer testified ∆ was impaired while driving. Opinion evidence is presumptively inadmissible. Lay witnesses should be able to testify opinion of he is able to more accurately express the facts he perceived (i.e. he was drunk rather than he was slurring speech, etc)
What does Mohan and its facts say about expert opinion evidence?
∆ sexually assaulting young patients. ∆ expert wanted to testify that only certain types of people commit these crimes, and ∆ is not of this type - NOT admissible.
New test: relevance, necessity, qualification, absence of exclusionary rule. Necessary means more than merely helpful. Qualified is through study or experience.
What does Abbey 2009 say about expert opinion evidence?
Expert speaking to teardrop tattoo. The logical relevance of the opinion is to make a fact in issue more or less likely. Its legal relevance (PV, PE) is for the second stage of the test. TJ must delineate the scope of the evidence - i.e. no hypotheticals or conclusions about the accused.
What should we do to evaluate non-scientific expert opinion evidence?
Abbey 2009 says: Don't apply daubert factors. Instead, assess: qualifications, recognition, quality assurance, and data collection in an unbiased context.
What are DD and K(A)'s facts and what do they say about necessity for expert opinion?
DD: Crown expert on why young victims wait so long to tell the truth - unnecessary. For normal human behaviour and jury instruction is sufficient, then unnecessary.
K(A) (Crown expert on how V exhibits childhood abuse behaviour and why Vs delay disclosure) - unnecessary. Is the jury unlikely to form a correct judgement if unassisted? Are there technicalities outside the experiences of the jury? Credibility evidence is inadmissible, although other evidence can touch on it (i.e. showing Vs often delay reporting).
What does White Burgess say about qualifications for expert opinion?
The quality of qualifications goes to stage 2 of the test - the balancing component. The preconditions stage is modest.
What do Abbey, Lavallee, and Beland say about other exclusionary rules regarding expert opinion evidence?
Abbey 1982 (∆ suffers from delusions that compromise judgement, i.e. defence of insanity). Experts can talk about the circumstances on which their opinion is based (hearsay is common for psychiatrists - goes to weight). But there is a danger of jury accepting the hearsay as truth.
Lavallee (expert relied on multiple sources - ∆, mother, police report, hospital records - some hearsay and some not) - admissible. Where the basis of the expert opinion is a mix of sources, TJ should caution jury as to weight. There is distinction between hearsay from science and hearsay from a litigant.
Beland (polygraph evidence in admissible) - evidence that speaks directly on credibility is not allowed - usurps jury function. But error is not sufficient grounds to exclude the evidence.
What do Trochym and Aitken say about novel scientific evidence in expert testimony?
Trochym (hypnosis evidence - changed testimony under hypnosis) - need to establish reliabiliy. Post-hypnotic memories may be given too much weight. Techniques reliable for therapeutic purposes are not necessarily reliable in court (novel application).
Aitken (Podiatrist compared video recording walk with accused's walk) - not novel science, well within expertise, no need to apply Daubert.
What do the facts of NS say about the demeanour of a witness?
NS was testifying wearing a niqab - she was the complainant in a SA case. The witness should be allowed to testify with face covered unless trial fairness requires she remove it. Depends on the evidence the witness is trying to prove, credibility issues.
What case speaks to assessing the credibility of child witnesses/deference of appellate courts?
W(R) - criteria appropriate to mental development, understanding, ability to communicate. Use a common sense basis. Appellate courts can overturn findings of credibility at trial when it is unreasonable.
Are prior consistent statements generally admissible to support credibility? Why?
No - they are not probative, their minimal value is outweighed by time, they are usually hearsay.
What is the doctrine of the prior identification exception to the inadmissibility of prior consistent statements?
Identification at trial is generally not probative standing alone. The probative force is best measured by considering the entire process.
What do the facts of Stirling say about rebutting claims of recent fabrication?
Car accident, unsure who the driver is. Witness/suspect's statement to the police is admissible for the limited purpose of rebutting the allegation of his motive to lie for the civil suit. There are still other motives to lie that the statement doesn't address.
When are prior consistent statements of the accused admissible according to Edgar?
PCSs are relevant for state of mind, to rebut recent fabrication, for mixed inculpatory and exculpatory evidence (the crown has to admit it all), res gestae. Edgar adds a new ground for statements made spontaneously on arrest or accusation, for proof of consistency.
What does Murphy say about narrative evidence as an exception to the inadmissibility of prior consistent statements? What is the other case on this?
Murphy (police testified to witness's demeanour during interview) - not admissible for narrative. Only if ∆ had raised police misconduct.
Dinardo (sexual interference after taxi ride, mentally disabled V). Admissible for narrative but cannot use the statement to bolster credibility/corroboration.
What do Kyselka and Marquard say about expert evidence to support credibility?
Kyselka - early, restrictive case: Psych evidence of mentally disabled V saying she was incapable of faking allegations - inadmissible to only bolster credibility of a witness.
Marquard (modern - grandparents burning kid - Dr gave opinion that kids tell a different story at first, and V was lying about her initial story). The doctor should have limited her testimony to the first part - cannot tell the trier of fact who to believe. If the jury would otherwise be confused and are properly instructed, its permissible.
What do Melnichuk and McDonald say about collateral facts rule? Is there another case?
Hitchcock (using cistern to make malt - bribed witness?) - the mere fact that a bribe was offered is collateral - he didn't accept it.
Melnichuk (pretending to be an accountant?) - evidence that shows ∆ is a liar is collateral to the main issue of fraud, because this lie wasn't part of the case-in-chief.
McDonald (loyal sister defending rapist) - bias is always relevant, but the background giving rise to the bias is collateral (limit the evidence).
When can prior inconsistent statements be used?
To impeach credibility, but the collateral facts bar still applies. PIcSs are still hearsay.
What does Corbett say about prior convictions, aside from the test?
Previous conviction for murder and robbery - no CX on conduct that led to the prior conviction, and a clear jury instruction is required to only assess credibility. TJ discretion maintains charter compliance.
What does Tohey say about expert evidence to impeach credibility?
V found in hysterics, expert suggested predisposition to hallucinations. The evidence is admissible to show witnesses suffers from abnormality that affects reliability (i.e. poor eyesight, hysteria - go to perception, recounting). But should not testify to bad character of witness.
How do you declare a witness hostile? What happens when you do?
You can apply to the TJ to have your witness declared hostile in light of any and all evidence . Counsel is entitled hen to CX on all matters in issue, subject to the collateral facts bar (wawanesa). A hostile witness has a hostile animus toward the party.
What does a declaration of an adverse witness get you, as per Figliola?
Adverse witness is one who's opposed in interest or unfavourable. It only allows CX of your witness on prior inconsistent statements. If not proven adverse, you can still CX on recorded prior inconsistent statements.
What are the facts and relevance of McNamara No 1 for putting character in issue and specific acts?
∆ gave examples of how he is a respectable business man, and conducts his business legally. Crown CX'd on a tax evasion guilty plea. - ∆ put his character in issue by testifying he is a good person and implying he isn't the type of person likely to commit the crime. Crown can CX him on specific acts of bad character where they reflect on aspects of character he has raised (i.e. honesty and integrity).
When can you CX an accused about the specifics of past criminal convictions?
When he raises good character, under criminal code s 666.
What do Levasseur and Profit say about reputation evidence for the accused?
Levasseur (colour of right - moved bosses illegal cars. Co-workers discussed business honesty) - business community is okay for reputation, doesn't need to be residential community.
Profit (assaulting students, witnesses said ∆ has never been inappropriate) - TJ does not need to give high PV to this - common sense that misconduct occurs in private.
What do Robertson and Mohan say about psychiatric evidence of disposition for the accused's character evidence?
Robertson - brutally murdered girl, ∆ expert said ∆ did not have disposition for this type of violence) - a murderer is not a member of a special class of people. Disposition for violence is not uncommon.
Mohan (∆ doctor SA young patients. ∆ expert testifies to sexual psychopathy) - TJ must be satisfied of distinctive behavoural characteristics for the crime of accused. SA against young women is not a distinctive group.
Describe the old similar fact evidence cases: Makin, Smith, Straffen
It was always to prove something other than criminal disposition: intent, system, plan, malice, identity, rebut mistake, rebut "innocent association"
Makin (baby farming) - evidence of baby remains in ∆'s other properties shows design and not accident (issue other than character).
Smith (drowned wives) - admissible not to litigate other deaths, but to support inference of design, not accident.
Straffen (escaped inmate, girl found strangled no SA. ∆ confessed previously to similar murders) - SFE supports identity here even though it's abnormal propensity.
Straffen
Describe the new approach to similar fact evidence; include unlisted cases.
Sweitzer (calgary rapes, 11 unlinked, 3 linked, only 1 at trial) - must be a link between the similar facts and ∆ where identity is at issue. No evidence linking for 11 of the episodes.
B(CR) (SA of daughter, SFE of relations with older step-daughter) - no need to find a traditional category. PV of propensity is so high that it displaces heavy PE, admit.
Arp: 2 murder trials, ∆ is ∆ in both - evidence cannot be adduced solely for the prohibited inference, but if SFE is proof BRD that committed both crimes (multi-count indictment) it is not prohibited inference. Need a good jury charge.
Handy (SA of V at motel, Crown SFE of assaulting ex-wife numerous times - not proven) - consent of the AR is at issue. PV - close in time, but no SFE began as consensual, long term relationship, pattern over many years, not highly distinctive. PE is highly inflammatory, would need trials within trials to prove the SFE. Potential for collusion is high, so don't admit.
Shearing:(cult leader, 20 SA against young girls over 24 years) - no persuasive evidence of collusion. PV - acts not distinctive but circumstances are. PE is highly disturbing to the jury - admit (defer to TJ).
What does McMillan and Scopelliti say about character of third party suspects and victims?
McMillan (psychopathic wife) - relevance - identity of child's killer, connection - motive, opportunity. Crown is enitiled to bring reply character evidence when ∆ put his character in issue by contrasting it.
Arcangioli: witness's criminal record is evidence of propensity to commit a violent robbery, rather than ∆.
Scopelliti (gas pump shooting - self-defence) - if disposition evidence of third party is probative, its fine. Not to show reasonableness of ∆'s action, but to support self-defence claim. Crown can refute with character evidence of V, undecided re: accused.
What are four types of false confessions from Oickle?
Stress-complaint (oppression)
Coerced-compliant (inducements)
non-coerced-persuaded (operating mind)
coerced-persuaded (inducements + operating mind)
What do the cases say about person in authority?
Hodgson (V's parents confronted ∆ at work, he confessed and they called the police) - not a person in authority because no indication V's family spoke to the police or ∆ believed this.
Wells (V's parents consulted RCMP and tricked ∆) - TJ should have held a VD to see if the parent was a person in authority.
SGT (SA of adopted daughter, confessed to mother in email) - no evidence V's mother had control over prosecution.
Undercover cop is not a person in authority.
Aside from the test, what does Oickle say about voluntariness?
Oickle - failed polygraph test, but was treated kindly by the police. Rationale for confessions rule is preventing false confessions, don't want a reasonable doubt as to voluntariness. Analysis is contextual, ∆'s frailty matters in relation to police tactics. The confession in Oickle was voluntary - no quid pro quo for inducements.
What case discussed inducements? What does it say
Inducements determined in relation to the police tactic and the effect on ∆. There needs to be a fear of prejudice or hope of advantage - something tangible. Spencer is the case - ∆ charge d with robbery, wanted to GF. Strenght of the inducement matters and quid pro quo.
Operating mind - what's the case, what does it establish?
Whittle - schizophrenic ignored counsel's advice. He possessed the ability to understand what he's saying and comprehend the evidence can be used aginst him. No inquiry int o whether it is a wise choice. Operating mind is a low bar.
Compare the confessions rule and the charter - what is the case?
Singh - says in the context of detention to a person in authority, the tests are the same. If a statement is voluntary it won't be excluded under the Charter. Oickle says the confessions rule is broader than the charter, standards of proof are different. Remedy is different.
What does Hart and Mack say about undercover stings?
Hart - Mr. Big, daughters drowned. Mr Big confessions can be unreliable, are highly prejudicial, and involve police misconduct. Here, PV is low - ∆ wanted to deparately join the organizaiton, confession was inconsistent. PE is high, he committed crimes.
Mack was an admissible confession - PV is high with modest inducements, not threatened, confirmatory evidence. PE is limited, no violence, limited involvement. No abuse of process.
What do the cases say about whether the evidence was "obtained in a manner" that violated the charter?
Strachan - temporal connection, look to the whole chain of events. Searched his home, police denied right to counsel until matters were under control, found drugs.
Goldhart - causal connection - olfactory surveillance, but co-accused pled guilty.
Witter - Contextual connection - breach from a year earlier was part of the same transaction.
What do Grant and Harrison say about bringing the administration of justice into disrepute?
Grant - random stop of black man, lead to admission of having a firearm which police seized. Unlawful detention and right to counsel violated. Old collins/stillman test focused too much on conscriptive evidence. Instead, focus long term.
Harrison (no grounds to pull over, cocaine found in car) - flagrant disregard for charter rights, significant impact, but evidence is reliable - don't admit it. Police attitude matters.
What do Gruenke and M(A) v Ryan say about case-by-case privilege?
Gruenke - ∆ and bg planned murder. ∆ talked to her pastor - no class privilege for religious communication, no confidence to the communication because pastor was unsure.
M(A) v Ryan - sued old psychiatrist for sexual relations. Partial disclosure is appropriate.