Law of Evidence flashcards

31 cards. Read the term and the definition here. The deck at the top of this page is optional.

Relevance

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 to admissibility but does not guarantee it.

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 previous convictions.

Best evidence rule

The original document must be produced to prove its contents, with exceptions for lost or destroyed originals, documents held by a third party, and voluminous records.

Legal burden

The obligation of a party to prove a fact in issue to the required standard if the evidence is evenly balanced; in criminal cases the prosecution bears it 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 remains with the same party.

Beyond reasonable doubt

The criminal standard of proof: the tribunal must be satisfied so that it is sure of the accused's guilt; the phrase is one of substance and is not elaborated to the tribunal.

Balance of probabilities

The civil standard of proof: the tribunal must be satisfied that the fact is more likely than not to be true, considering the whole of the evidence.

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 and the accused's spouse in certain specified offences.

Hostile witness

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.

Browne v Dunn rule

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.

Hearsay

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.

Res gestae

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 to the hearsay rule.

Dying declaration

A statement by a person who believes death is imminent, concerning the cause or circumstances of death, is admissible in homicide cases as an exception to the hearsay rule.

Declaration against interest

A statement by a person since deceased or unavailable, against that person's pecuniary or proprietary interest, is admissible as an exception to the hearsay rule.

Confession

An admission made by an accused, whether in words or otherwise, that he committed the offence; it is admissible only if voluntary and not obtained by fear, hope or oppression.

Voir dire

A trial within a trial held in the accused's absence where voluntariness of a confession is challenged; the prosecution bears the burden of proving voluntariness beyond reasonable doubt.

Oppression

Threats, persistent questioning, and inhuman treatment that overbear the suspect's will; a confession obtained by oppression is excluded as a matter of law, not discretion.

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.

Fairness discretion

A tribunal may exclude evidence where its admission would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, even if the evidence is relevant.

Entrapment

Police instigation of an offence may lead to exclusion of the resulting evidence as an abuse of process, but entrapment is not a defence to the offence itself.

Fruit of 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.

Good character

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.

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.

Expert opinion

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

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; the privilege belongs to the client.

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, such as national security or confidential police informants, balancing that harm against the interests of justice.

Document 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.

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 corroboration is not required.

Turnbull direction

Where identification is disputed, the tribunal should consider the circumstances of the identification and the danger of mistaken identification before relying on it.