Flashcards
Rules of Evidence
Cards in this deck (36)
- 1What is Conscriptive evidence?evidence that would not have been obtained had it not been for an accused providing it voluntarily
- 2Whats the distinction of the trier of fact and the trier of law?Fact: the jury determines fact
Law: the judge determines law
if there is no jury, the judge will determine both - 3List some non-testimonial evidencevaginal, semen, cheek swab, hair sample, blood
- 4list 3 primary sources of evidence law- Evidence Act Canada
- Common Law
- Regulations - 5What is a Prima Facie case?"on the face of it"
the plaintiff must present a case that is nearly unable to the dismissed - 6examples of prima facie negligence case- harm
- causation
- duty of care
- breach of standard of care - 7Civil Prima....offer
acceptance
consideration
legality - 8what do we mean when we use the term presumption is rebuttible?Presumption = helps the crown set reasonable doubt
Rebuttal = a presumption will be believed to be true if there is no rebuttal - 9What is direct evidence?- eye witness testimony
- personal knowledge / testimony - 102 types of implied statementsexcited utterances
(exclamation made without premeditation)
statements of presence impressions - 11Difference between admissions and declarationsAdmits- are against parties
Decl- are against non-parties - 12Wigmore Test (4 parts)-the communications must originate in a confidence that they will not be disclosed.
-this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
-the relation must be one which in the opinion of the community ought to be sedulously fostered.
the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. - 13What does the law of evidence serve to help, why do we have it?maintains standards when accepting and questioning evidence, it protects the innocent and helps to find justice in cases.
- 14What is the adversarial process?judges in the adversarial system do not take part in the search for the truth.
a passive decision maker has less opportunity to influence the outcome - 15What is/are the standard(s) of proof?the party who carries the burden of proving its case must meet a standard of proof
- 16The evolution of the rule of common law evidence...
- 17Types of evidence, what type is most used in court?Criminal case = Disclosure, testimony, physical proof, closing
- 18What is a legal presumption?A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true.
- 19What is the definition of hearsay? (three components)evidence given by a witness that is based on information received from others rather than personal knowledge; generally considered inadmissible.
- 20Past recollection recorded (police notes, etc.) is an exception to ____________________.recorded reliably
sufficiently fresh & accurate
knew it to be true at the time
original record must be used - 21Definition of character evidence.any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person.
- 22What is the caution placed on the admissibility of character evidence?it may cause potential prejudice
- 23Lay person v expertLay person = someone with no more than an average person's knowledge and experience
expert = good academic credentials and experience - 24explain privilegecertain information that is off limits to the litigation process
- 25Privilege by classbased on the relationship between the communicator and the recipient
- 26privilege by casecase by case basis
- 27How do you weigh the privative value of class privilege?risk to persons
risk of harm
risk is imminent - 28The following is a description of: evidence that would not have been obtained had it not been for an accused providing it voluntarily– conscriptive evidence.
- 29Why do we say that the judge is the gate keeper?the gatekeeping framework asks judges to filter out testimony that falls outside the bounds of acceptable reliability
- 30What are two primary sources of evidence law and two secondary sources of evidence law?EAC & Common law
CanLII & legal encyclopedia’s - 31Give the definition of a prima facie case - Contract, Criminal and negligencecriminal prima facie case (mens rea and actus reas must be present to establish)
contract – there must be an offer, acceptance, consideration, legality etc. to establish that a contract was entered into
negligence - it must first be established that there was a duty of care, a breach of the standard of care, causation and harm - 32Discuss generally, the phrase “A presumption is rebutable”.A presumption in court is believed to be true unless someone stands up and says otherwise
- 33What is direct evidence? Give an example– eye witness testimony, personal knowledge/observation.
- 34What are the two types of implied statements?A. excited utterances – so excited when saying it that there is no room for error.
B. statement of present impressions – physical or mental. - 35What is the difference between admission and declaration?They usually mean the same thing as they both relate to someone. However, and admission is made against parties whereas a declaration is make against non-parties
- 36Wigmore’s criteria. Give six exceptions and how reliability and necessity apply to them.1. former testimony
2. statement under the belief of imminent death
3. statement against interest
4. statement of personal or family history
5. ____________________
6. statement offered against a party that wrongfully caused the declarants unavailability
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- Rules of Evidence with Charles Mwewa
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- chantal Seguin
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