Flashcards
Chapter 7,8,9
Flashcards do conjunto (36)
- 1Probative value-value/strength of a fact in proving what the party seeks to establish
- 2Potential prejudice 2pts-potential for piece of proposed evidence to be misused
-usually, given too much weight by trier of fact - 3Similar fact evidence 2pts-evidence shows accused committed similar offences in past
- may be admitted provided it is relevant to establishing important matter other than the accused's predisposition to commit that type of offence - 4Test for similar fact evidence 4pts-presumptively inadmissible
- onus on prosecution to satisfy trial judge on balance of probabilities
-in context of particular case probative value of the evidence in relation to a particular issue outweighs its potential prejudice
-thereby justifies its reception - 5Moral prejudice-prejudice results from admission of evidence of bad character
-showing accused to be morally bad person
- leading trier of fact to conclude he is guilty - 6Reasoning prejudice-applies to evidence that, if admitted, may confuse trier of fact/distract trier of fact from the issue it must decide
- 7Propensity evidence 4pts-evidence of accused's past history/tendency to act in certain way –psychiatric tendencies
– ALWAYS given by expert –proves disposition
–presumptively inadmissible - 8rape shield provisions-provisions in Criminal Code forbid the admission of evidence of a complainant's sexual history to support inference that she is more likely to have given consent/less worthy of belief
- 9Character evidence 4pts– how person behaved on another occasion
–used to draw inferences from past conduct to show patterns/traits
–this is their character
–presumptively inadmissible - 10Test to admit character evidence– judge must weigh probative value/prejudicial effect
- 11Character evidence no testify–if accused doesn’t testify then criminal record not admissible because he didn’t put his character in issue.
- 12Character evidence testify 3pts- if accused testifies then criminal record admissible because he brought credibility into issue
-cannot use it to attack character
-only credibility - 13Disposition/propensity 3pts–evidence not admissible to prove disposition, only to prove propensity –must weigh probative value/prejudicial effect
–cannot lead evidence that because of it they killed, only that they have capacity for it - 14Wigmore exceptions to hearsay rule 2ptsnecessary -only way evidence admitted through hearsay
relatively reliable- in circumstances statement made. - 15Dying Declaration Wigmore test 2ptsN-person unavailable
R-person unlikely to make false statement that harms interest - 16Declarations against pecuniary or proprietary interest and declarations against penal interest are: 2pts1. person making statement must be unavailable.
2. statement must be against statement-maker’s interest. - 17Dying declaration Wigmore 5ptsN-Person must be dead
R-Only applies to criminal proceedings –more likely true than not
–probably for religious reasons
–or clean slate - 18Res Gestae Wigmore 2ptsN-must establish statement could only be admitted through hearsay.
R-no time for concoction - 19Business Records Wigmore 4ptsN-if had to call every nurse/bookkeeper who made entries too long for courts
-sometimes can’t determine who made record
R-if made as part of regular business they have interest in maintaining accurate records
-no motive to misrepresent - 20Prior testimony Wigmore 2ptsN-witness unavailable
R-sworn evidence and opportunity to cross-examine - 21Prior inconsistent statement 3ptsN-recanting witness
–if automatically excluded could invite intimidation
R -sworn statement, videotaped, and cross examined - 22Past Recollection Recorded Wigmore 2ptsN-witness can’t remember details unless refer to record
R-contemporaneous, made in reliable manner - 23principled exception-exception to hearsay rule based on principles of necessity & reliability
- 24Test court will apply in determining hearsay is: 4pts1. Does hearsay fall within TRADITIONAL exceptions
2.Does it meet tests of NECESSITY/RELIABILITY
3.If so, admissible as long as not more prejudicial than probative.
4. If doesn’t meet a traditional exception may be admitted as long as meets tests of necessity/reliability - 25Opinion evidence 2pts- evidence given by witness based on conclusions/inferences drawn from facts or observations
–generally witness not permitted to state conclusions/inferences themselves only the observations - 26Layperson's opinion 2pts- opinion given by an ordinary witness on matter of ordinary experience
-permitted where opinion does not unnecessarily encroach on trier of fact’s role. - 273 criteria to determine whether opinion evidence of lay witness accepted:1. The opinion is one that a layperson could ordinarily be expected to arrive at.
2. The lay witness has sufficient experience to draw these conclusions.
3. The lay witness is better situated than the trier of fact to form the conclusions. - 28Compendious mode of expressing facts 2pts- witness mixes opinion into testimony in order to express himself
-permitted by court where difficult for witness to express info without stating an opinion. - 29expert opinion 2pts–testimony given by properly qualified person with specific expertise in area In issue
- permitted to assist trier of fact in coming to conclusions of fact in that area - 30Mohan test for expert evidence 4pts1. Relevance
2. Necessity
3. Properly qualified witness
4. The absence of any exclusionary rule - 31Relevance/probative value of expert evidence 3pts1. Connection between expert and issue 2. Strength in proving issues
3. Importance of evidence –more significant issue the better. - 32Foundation of Expert Witness 2pts- foundation of expert's testimony usually established by posing a hypothetical question for expert to answer.
–Then bring facts of case into line with hypothetical. - 33Hearsay and expert evidence 2pts- For expert's opinion to be given weight, there must be some admissible evidence that goes to the foundation of the expert's opinion.
-The more the expert relies on hearsay evidence, the less weight evidence can be given. - 34Ultimate issue opinion 5pts- opinion on ultimate issue before trier of fact
-generally, witnesses not permitted because trier of fact could be swayed
- experts may express opinions on ultimate issue where such evidence will be of assistance to the trier of fact.
-Not acceptable = “He's as guilty as hell." -Acceptable = "In my opinion, Mr. Abbey was insane at the time that he killed his wife." - 35Oath helping 2pts-testimony by witness in which he approves of/comments favourably on credibility of another witness
- generally prohibited because witness should have testimony evaluated its merits - 36In order to be admissible, novel science must meet 3 criteria:1. Must be essential. Trier of fact cannot come to a satisfactory conclusion without this aid.
2. must withstand special scrutiny. Reliability of science must be established because scientific community has not generally accepted it yet,
3. must satisfy even stricter necessity and reliability requirements where it approaches the ultimate issue in the matter.
Informações
- Descrição
- ACT Year 12 Certificate Evidence FlashCards sobre Chapter 7,8,9, criado por Penny-Ann Lupton em 05-07-2015.
- Criado por
- Penny-Ann Lupton
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