Law of Evidence cheat sheet

Relevance is a relational test: evidence is relevant if it logically tends to prove or disprove a fact in issue, either alone or with other evidence; relevance is a precondition, not a guarantee of admission.

Admissibility is a compound question: relevant evidence may still be excluded by an exclusionary rule, by judicial discretion, or by a statutory bar such as a privilege.

Direct evidence proves a fact in issue without inference; circumstantial evidence requires an inferential step, and circumstantial evidence is admissible provided the inference is reasonable and not speculative.

The collateral-fact rule: evidence going only to a witness's credit on an irrelevant matter is generally excluded, subject to exceptions such as bias, prior inconsistent statements, and convictions.

The best evidence rule (original document rule) requires the original document to prove its contents, with exceptions for lost or destroyed originals, documents held by a third party, and voluminous records.

Judicial discretion to exclude: a tribunal may exclude relevant evidence where its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the tribunal, or undue delay.

Real evidence (objects, the scene, a demonstration) is admissible if identified and relevant; the tribunal may draw inferences from the condition of an object, but the object must be authenticated.

Prior consistent statements are generally inadmissible as self-serving, but become admissible to rebut an allegation of recent fabrication or to explain a prompt complaint where the law allows.

Legal (persuasive) burden: the party who must prove a fact in issue to the required standard if the evidence is evenly balanced; in criminal cases the prosecution bears the legal burden on every element of the offence.

Evidential burden: the obligation to adduce sufficient evidence to make a fact a live issue; it shifts during trial, whereas the legal burden generally does not.

The prosecution bears the legal burden of disproving defences such as self-defence and provocation once the defence is sufficiently raised; the defence bears only an evidential burden in those cases.

Reverse onus clauses: where statute imposes a legal burden on the defence, the standard is the balance of probabilities; where it imposes only an evidential burden, the standard is the evidential threshold (a case fit to be left to the tribunal).

Standard of proof in criminal cases: beyond reasonable doubt, meaning the tribunal must be satisfied so that it is sure; the phrase is one of substance and not to be elaborated to the tribunal.

Standard of proof in civil cases: the balance of probabilities, meaning more likely than not; the seriousness of the allegation may affect the cogency of evidence required, but not the standard itself.

Presumptions: a presumption of law shifts the burden of proof (e.g. the presumption of legitimacy, the presumption of death after seven years' absence); a presumption of fact is merely an inference the tribunal may draw.

The tribunal must be satisfied on the whole of the evidence; the burden is discharged if, after considering all the evidence, the party bearing it has proved the fact to the required standard, regardless of who called the witness.

Competence: a witness must be able to understand the questions put and give intelligible answers; competence is presumed for adults and tested for children and persons with a mental disorder.

Compellability: a competent witness is generally compellable, but exceptions include the accused in a criminal trial (not compellable for the prosecution), the accused's spouse in certain offences, and heads of state and diplomats.

The accused's spouse is competent and compellable for the defence and, in respect of specified offences (e.g. violence against the spouse or a child of the family), compellable for the prosecution.

Examination-in-chief: the party calling a witness may not generally ask leading questions except on undisputed or introductory matters; leading questions are permitted on matters not in dispute.

Cross-examination: leading questions are permitted; the cross-examiner must put the defence case to prosecution witnesses (the rule in Browne v Dunn) or risk the tribunal rejecting later contradictory evidence.

Re-examination: confined to matters arising out of cross-examination; a party may not introduce new matters in re-examination without leave, and leading questions are not permitted.

Hostile witnesses: a party may apply to treat its own witness as hostile where the witness's evidence is adverse; the court may then permit leading questions and, with leave, cross-examination by the calling party.

Refreshing memory: a witness may refresh memory from a document made contemporaneously or shortly after the event while testifying; the document is produced to the other side and may be inspected.

Hearsay is an out-of-court statement (oral, written or by conduct) tendered to prove the truth of its contents; it is generally inadmissible because it is not made under oath and cannot be tested by cross-examination.

The hearsay rule does not apply where the statement is tendered for a non-hearsay purpose, such as proving that the words were spoken, their effect on the listener, or the state of mind of the speaker.

Res gestae (excited utterance): a statement made contemporaneously with or so shortly after a startling event, while the speaker is still under the stress of the event, is admissible as an exception.

Dying declarations: a statement by a person who believes death is imminent, concerning the cause or circumstances of death, is admissible in homicide cases.

Statements in the course of duty: records made by a person under a duty to record the information, in the ordinary course of that duty, are admissible as an exception.

Declarations against interest: a statement by a person since deceased or unavailable, against that person's pecuniary or proprietary interest, is admissible as an exception.

Admissions and confessions: a party's own statement against interest is admissible against that party as an exception to the hearsay rule; a co-accused's confession is not admissible against another accused.

Statutory hearsay regimes (e.g. business records, documentary hearsay) may admit hearsay subject to notice requirements and the court's discretion to exclude where the interests of justice require.

A confession is an admission made by an accused, whether in words or otherwise, that he committed the offence; it is admissible only if voluntary.

Voluntariness: a confession is involuntary if obtained by fear of prejudice, hope of advantage, or oppression, whether or not the inducement was made by a person in authority.

The voir dire (trial within a trial): where voluntariness is challenged, the tribunal determines admissibility in the accused's absence, and the prosecution bears the burden of proving voluntariness beyond reasonable doubt.

Oppression includes threats, persistent questioning, and inhuman treatment; a confession obtained by oppression is excluded as a matter of law, not discretion.

The special caution: where a suspect is interviewed after charge or after being informed that prosecution is likely, answers to questions are inadmissible unless the caution has been given; answers to spontaneous questions may still be admissible.

The discretion to exclude: a confession may be excluded where its admission would have such an adverse effect on the fairness of the proceedings that the tribunal ought not to admit it (unfairly obtained evidence).

A confession by one accused is not evidence against a co-accused; it may be used by the co-accused in his own defence only where the maker adopts it in evidence.

Corroboration: a confession alone may be sufficient to convict, but the tribunal should be warned of the danger of convicting on an uncorroborated confession where it is retracted or disputed.

The common law discretion: a tribunal may exclude evidence where its prejudicial effect outweighs its probative value, and may exclude evidence obtained unfairly where admission would be unfair to the accused.

The fairness discretion (e.g. the statutory unfairness test) permits exclusion of evidence where its admission would have such an adverse effect on the fairness of the proceedings that the tribunal ought not to admit it.

Illegally obtained evidence is not automatically inadmissible; the court weighs the gravity of the impropriety against the probative value and the seriousness of the offence.

Breach of a statutory safeguard (e.g. failure to caution, failure to permit legal advice, unlawful search) may lead to exclusion, but exclusion is discretionary unless the statute expressly mandates it.

Entrapment: evidence obtained by police instigation of an offence may be excluded as an abuse of process, but entrapment is not a defence to the offence itself.

The fruit of the poisonous tree: evidence derived from an unlawful search or an inadmissible confession may itself be excluded where the derivative evidence is tainted by the same unfairness.

The privilege against self-incrimination: compelled statements may be excluded, and the tribunal may not draw adverse inferences from an accused's silence at trial, only from a failure to mention facts later relied on, where the statutory conditions are met.

The exclusionary discretion is exercised by the tribunal, not the jury; the tribunal should give reasons where exclusion is contested, and the ruling is subject to appeal.

The accused's good character is relevant to credibility and to the likelihood of guilt; where raised, the prosecution may rebut it, and the tribunal should direct itself on its relevance.

The accused's bad character is generally inadmissible, but may be admitted where it is relevant to an issue in the case (e.g. to prove identity, motive, or a specific propensity) and the probative value outweighs the prejudice.

Similar fact evidence: evidence of other misconduct is admissible where its probative value is so high that it outweighs the prejudice, typically where there is a striking similarity or a systematic course of conduct.

Propensity evidence: evidence of a tendency to commit the offence is generally inadmissible where it is used only to show that the accused is the kind of person who would commit the offence.

The accused may adduce evidence of his own good character, and the prosecution may cross-examine on bad character only where the accused has attacked the character of prosecution witnesses or asserted his own good character.

Opinion evidence: a lay witness may give opinion evidence on matters of everyday life where it assists the tribunal, but may not give opinion on matters requiring expert knowledge.

Expert opinion is admissible where the expert has relevant specialised knowledge, the evidence is within the expert's field, and the evidence will assist the tribunal on a matter outside its ordinary experience.

The ultimate issue rule: an expert may not usurp the tribunal's function by expressing an opinion on the ultimate issue, though the modern approach permits an expert to give an opinion on an ultimate issue where it is a matter for expert judgment.

Legal professional privilege: confidential communications between a client and a legal adviser for the purpose of obtaining legal advice are privileged and may be withheld from disclosure.

Litigation privilege: communications and documents prepared for the dominant purpose of litigation, whether or not involving a lawyer, are privileged once litigation is reasonably contemplated.

The privilege belongs to the client, not the lawyer, and may be waived by the client; it survives the termination of the retainer and the client's death (subject to exceptions).

Without prejudice privilege: communications made in a genuine attempt to settle a dispute are inadmissible in subsequent proceedings, save for the purpose of proving a settlement or where the privilege is waived.

Public interest immunity: the tribunal may exclude evidence where disclosure would harm the public interest (e.g. national security, confidential police informants), balancing that harm against the interests of justice.

The informant privilege: the identity of police informants is protected, and the tribunal will not compel disclosure unless the informant's evidence is necessary to establish innocence.

Journalistic and medical privileges are limited; a journalist may be compelled to disclose sources where the interests of justice require it, and medical records may be disclosed with consent or by court order.

Privilege is a rule of admissibility, not a rule of relevance: privileged material may be highly relevant but is withheld to protect the relationship, and the tribunal may not draw adverse inferences from its assertion.

Documentary evidence: a document is admissible as original evidence where it is produced and authenticated, or as secondary evidence where the original is unavailable and an exception applies.

Authentication: a document must be shown to be what it purports to be, by the evidence of a witness who made or saw it, by handwriting evidence, or by circumstantial evidence.

The best evidence rule: the original document must be produced to prove its contents, with exceptions for lost or destroyed originals, documents in the possession of a third party, and voluminous records.

Business records: records made in the ordinary course of business are admissible as an exception to the hearsay rule, subject to the court's discretion to exclude where the interests of justice require.

Real evidence: objects and the scene may be produced for inspection; the tribunal may draw inferences from their condition, but the object must be identified and shown to be relevant.

Demonstrations and experiments in court are permitted where they are relevant and fair; the tribunal may exclude a demonstration that is misleading or prejudicial.

Tape recordings and digital evidence are admissible where authenticated and relevant; a recording may be excluded where it is inaudible or where its provenance is not established.

Views: the tribunal may inspect the scene outside the courtroom, and the parties must be present; the view is evidence and the tribunal may draw inferences from what it observes.

Credibility is always relevant, but evidence going only to credibility on a collateral matter is generally excluded; exceptions include bias, prior inconsistent statements, and convictions.

Prior inconsistent statements: a witness may be cross-examined on a previous statement, and the statement may be admitted as evidence of the facts stated where the witness is given the opportunity to explain and the statutory conditions are met.

Corroboration: evidence that confirms or supports a witness's testimony; the tribunal should warn itself of the danger of convicting on uncorroborated evidence where the law requires a warning (e.g. accomplices).

The corroboration warning: where an accomplice gives evidence for the prosecution, the tribunal should warn itself of the danger of convicting on that evidence alone, though there is no requirement of corroboration.

Identification evidence: where identification is disputed, the tribunal should consider the circumstances of the identification (lighting, duration, distance) and the danger of mistaken identification; a Turnbull-style direction may be required.

Complaints: a prompt complaint by a complainant in a sexual offence case is admissible to show consistency, but the absence of a complaint is not evidence of consent.

Lies: the tribunal may draw inferences from lies told by the accused, but only where the lie is material, told with knowledge of the truth, and admitted as evidence of guilt.

Silence: the tribunal may not draw adverse inferences from an accused's silence at trial, but may draw inferences from a failure to mention facts later relied on where the statutory conditions are met.

Examination-in-chief: the party calling a witness may not generally ask leading questions except on undisputed or introductory matters; leading questions are permitted on matters not in dispute.

Cross-examination: leading questions are permitted; the cross-examiner must put the defence case to prosecution witnesses (the rule in Browne v Dunn) or risk the tribunal rejecting later contradictory evidence.

Re-examination: confined to matters arising out of cross-examination; a party may not introduce new matters in re-examination without leave, and leading questions are not permitted.

Hostile witnesses: a party may apply to treat its own witness as hostile where the witness's evidence is adverse; the court may then permit leading questions and, with leave, cross-examination by the calling party.

Refreshing memory: a witness may refresh memory from a document made contemporaneously or shortly after the event while testifying; the document is produced to the other side and may be inspected.

The rule in Browne v Dunn: a party must put to an opposing witness the substance of any contradictory evidence it intends to call, so that the witness may explain; failure may lead the tribunal to reject the later evidence.

Re-opening a case: a party may apply to re-open its case after the close of the evidence where new evidence has emerged, but the tribunal has a discretion to refuse where the other side would be prejudiced.

Witnesses may not be cross-examined on their character or previous convictions unless the evidence is relevant to credibility and the statutory conditions are met.

Judicial notice: the tribunal may take notice of facts that are so notorious or well established that they require no proof, such as the laws of nature or the ordinary course of business.

Presumptions of law: a presumption of law shifts the burden of proof (e.g. the presumption of legitimacy, the presumption of death after seven years' absence).

Presumptions of fact: a presumption of fact is merely an inference the tribunal may draw from the evidence, and the tribunal is not bound to draw it.

The presumption of innocence: the prosecution bears the legal burden of proving every element of the offence beyond reasonable doubt, and the accused is presumed innocent until proved guilty.

The presumption of regularity: official acts are presumed to have been regularly performed, and the burden of proving irregularity lies on the party asserting it.

The presumption of death: a person absent for seven years without explanation is presumed dead, and the burden of proving the contrary lies on the party asserting it.

The presumption of legitimacy: a child born during a marriage is presumed legitimate, and the burden of proving illegitimacy lies on the party asserting it.

Judicial notice of law: the tribunal takes notice of the law of the forum, but not of foreign law, which must be proved as a fact by expert evidence.

Identification evidence: where identification is disputed, the tribunal should consider the circumstances of the identification (lighting, duration, distance) and the danger of mistaken identification; a Turnbull-style direction may be required.

Identification parades: a suspect should be given the opportunity to participate in an identification parade where identification is in issue, and failure to hold one may lead to exclusion of the identification evidence.

Forensic evidence: expert evidence on DNA, fingerprints, and ballistics is admissible where the expert has relevant specialised knowledge and the evidence will assist the tribunal.

The prosecutor's duty: the prosecution must disclose all relevant material to the defence, including material that may undermine its case, and failure to disclose may lead to a stay of proceedings.

Chain of custody: forensic evidence must be shown to have been properly collected, stored, and analysed, and a break in the chain may affect its weight or admissibility.

Continuity: the tribunal should be satisfied that the exhibit produced is the same item recovered, and any doubt may be resolved in favour of the accused.

Expert evidence on the ultimate issue: an expert may not usurp the tribunal's function by expressing an opinion on the ultimate issue, though the modern approach permits an opinion on an ultimate issue where it is a matter for expert judgment.

The tribunal may exclude forensic evidence where its prejudicial effect outweighs its probative value, for example where the statistical basis of a DNA match is not explained.

Disclosure: parties must disclose all documents relevant to the proceedings, whether or not they support their case, and failure to disclose may lead to an order for specific disclosure or costs sanctions.

Legal professional privilege: confidential communications between a client and a legal adviser for the purpose of obtaining legal advice are privileged and may be withheld from disclosure.

Without prejudice privilege: communications made in a genuine attempt to settle a dispute are inadmissible in subsequent proceedings, save for the purpose of proving a settlement or where the privilege is waived.

Witness statements: a party may rely on a witness statement as evidence-in-chief, and the witness may be cross-examined on it; the statement must be served in accordance with the rules.

Hearsay in civil proceedings: hearsay is admissible in civil proceedings, but the court may exclude it where the interests of justice require, and notice requirements may apply.

Expert evidence in civil proceedings: the court may restrict expert evidence to that which is reasonably required, and experts owe a duty to the court that overrides their duty to the party instructing them.

The court may draw adverse inferences from a party's failure to disclose a document or to call a witness, where the party has no reasonable explanation.

The court may order a view or an experiment, and the parties must be given the opportunity to be present and to make representations.

The standard of proof in family proceedings is the balance of probabilities, but the seriousness of the allegation may affect the cogency of evidence required.

Hearsay is admissible in family proceedings, but the court may exclude it where the interests of justice require, and the court must consider the welfare of the child.

The court may take judicial notice of facts that are so notorious or well established that they require no proof, such as the laws of nature or the ordinary course of business.

Privilege: legal professional privilege applies in family proceedings, but the court may override it where the welfare of the child requires disclosure.

The court may draw adverse inferences from a party's failure to disclose a document or to call a witness, where the party has no reasonable explanation.

Expert evidence in family proceedings: the court may restrict expert evidence to that which is reasonably required, and experts owe a duty to the court that overrides their duty to the party instructing them.

The court may order a view or an experiment, and the parties must be given the opportunity to be present and to make representations.

The court may take judicial notice of foreign law only where it has been proved by expert evidence, and the burden of proving foreign law lies on the party asserting it.