Opinion Evidence
given by a witness based on conclusions/inferences drawn from facts or observations
What is "opinion evidence"
sworn affidavit, text message, audio recording, newspaper article
What are examples of "out of court statements"
Evidence can only be admitted if it is RELEVANT to a MATERIAL issue in the case
What is the threshold test?
The degree to which a potential piece of evidence helps to prove a proposition.
Probative value
Admission by action, admissions by silence, admissions by co-defendants, co-conspirator exception
What are the "different forms of admission"
Apparent age, certain questions of value, estimates of speed and distance
What are examples of Layperson's Opinion
business records, past recollection recorded, oral histories of aboriginal peoples
What are "traditional exceptions to the hearsay rule"
Relates to the actual facts that you must establish to win/defend a case
Primary Materiality
the potential for a trier of fact to give evidence weight than it deserves
prejudicial effect
The witness is unavailable for the trial,
The material issues and the parties are substantially the same in both proceedings, and
The opposite party had the opportunity to cross-examine in the earlier proceeding.
What is the common-law rule for admitting Prior Testimony
To provide opinion evidence that is fair, objective and non-partisan
What is the "duty of expert"
Rule allowing evidence against one member of a conspiracy as evidence against all other members.
What is a "Co-Conspirator Exception"
Evidence used to assess the quality of the Primary Evidence
Secondary Materiality
behaviour of the accused after the alleged act
post-offence conduct
A statement made while the speaker’s mind is still dominated by a startling event
What is an "Excited utterance"
Gratt v R, R v Walizadah, R v Ilina
What are cases involving Lay Witnesses
Hearsay evidence may be admissible under an existing hearsay exception or may be admitted on a case-by-case basis according to the principles of "necessity and reliability"
What is "the principled exception"
evidence that tends to prove a factual matter by proving other events or circumstance from which [either alone or in combination with other evidence] the occurrence of the matter in issue can be reasonably inferred.
What is "Circumstantial evidence"
evidence that may not initially appear relevant but that is admitted on condition that its relevance will be established
What is "Conditional Relevance"
Only available in criminal cases (either the Crown or the defence may seek to admit the statement) in which the charge relates to the death of the statement-maker.
What is a "dying declaration"
Necessity, Relevance, Qualifications, The absence of any exclusionary rule
Mohan Test - Expert Opinion
- Declarant is unavailable
- There was sworn evidence an an opportunity to cross-examine
What is the principled exception of prior testimony
Test - R v Meddoui
What is the "test for permitting a witness to refer to a written note or other recording"
What are the 4 main concerns of prejudicial evidence?
1. May cause an emotional connection rather than a logical one.
2. May overvalue the evidence.
3. Distract from proper focus/confuse
4. Overly expensive or time consuming
Common law test (Ares v. Venner)
What is the test common law test for Business Records