Rules of Evidence

Question	Answer
What is Conscriptive evidence?	evidence that would not have been obtained had it not been for an accused providing it voluntarily
Whats 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
List some non-testimonial evidence	vaginal, semen, cheek swab, hair sample, blood
list 3 primary sources of evidence law	- Evidence Act Canada - Common Law - Regulations
What is a Prima Facie case?	"on the face of it" the plaintiff must present a case that is nearly unable to the dismissed
examples of prima facie negligence case	- harm - causation - duty of care - breach of standard of care
Civil Prima....	offer acceptance consideration legality
what 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
What is direct evidence?	- eye witness testimony - personal knowledge / testimony
2 types of implied statements	excited utterances (exclamation made without premeditation) statements of presence impressions
Difference between admissions and declarations	Admits- are against parties Decl- are against non-parties
Wigmore 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.
What 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.
What 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
What is/are the standard(s) of proof?	the party who carries the burden of proving its case must meet a standard of proof
The evolution of the rule of common law evidence	...
Types of evidence, what type is most used in court?	Criminal case = Disclosure, testimony, physical proof, closing
What 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.
What 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.
Past 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
Definition 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.
What is the caution placed on the admissibility of character evidence?	it may cause potential prejudice
Lay person v expert	Lay person = someone with no more than an average person's knowledge and experience expert = good academic credentials and experience
explain privilege	certain information that is off limits to the litigation process
Privilege by class	based on the relationship between the communicator and the recipient
privilege by case	case by case basis
How do you weigh the privative value of class privilege?	risk to persons risk of harm risk is imminent
The following is a description of: evidence that would not have been obtained had it not been for an accused providing it voluntarily	– conscriptive evidence.
Why 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
What are two primary sources of evidence law and two secondary sources of evidence law?	EAC & Common law CanLII & legal encyclopedia’s
Give the definition of a prima facie case - Contract, Criminal and negligence	criminal 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
Discuss generally, the phrase “A presumption is rebutable”.	A presumption in court is believed to be true unless someone stands up and says otherwise
What is direct evidence? Give an example	– eye witness testimony, personal knowledge/observation.
What 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.
What 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
Wigmore’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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	Created by chantal Seguin almost 8 years ago