Difference between revisions of "Pleading Not Guilty and Criminal Trials (1:VII)"

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Pleading Not Guilty and Criminal Trials (1:VII) (view source)

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Anything the accused says to the police before or after the arrest is admissible as a confession ''only'' if the Crown first proves it was made voluntarily. See the [[Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX) | Section IX: Charter]] below for more information on confessions.
Anything the accused says to the police before or after the arrest is admissible as a confession ''only'' if the Crown first proves it was made voluntarily. See the [[Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX) | Section IX: Charter]] below for more information on confessions.


==== e) Hearsay evidence ====
==== e) Leading a witness ====
Hearsay is generally defined as an out of court statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is inadmissible unless the statement falls into one of the hearsay exceptions. The key factor in determining if a statement is inadmissible hearsay is its purpose.. The defining features of the Hearsay rule are: (a) the purpose of adducing the statement is to prove the truth of its contents and (b) the absence of contemporaneous opportunity to cross-examine the declarant. For example, if the witness on the stand states "the passenger said the light was red," this is hearsay if: (a) the truth of the matter is to determine whether the light was red, and (b) the passenger who made this statement is not in-court and cannot be cross-examined.
 
There  are  some  traditional  exceptions  to  the  hearsay  rule,  through  which  such statements can be admissible. These include:
#confessions,
#dying declarations,
#declarations against the interest of the declarant,
#records  made in  the course of duty if the declarant is deceased or otherwise unavailable (for example, doctor's notes),
#declarations of a state of mind or bodily condition as evidence of the state reported, but not of its cause (for example, using the declaration "I'm cold" to establish that the person making the statement was cold, but not using it for the assumption that the weather outside was cold that day),
#statements of intention (used to increase the probability that the person who made the statement actually performed that intended action), and
#spontaneous declarations (''Res Gestae'' - statements made so closely to the event that they are connected to it).
 
Each exception has its own requirements that must be met. However, there are two basic tests underlying all of them:  necessity,  and the  circumstantial  probability  of trustworthiness. In addition to the traditional common law exceptions, the Courts have developed the "principled approach" to determining the admissibility of hearsay. See ''R v Starr'', [2000] 2 SCR 144. This approach, too, looks at necessity and reliability. These two requirements must be met before allowing hearsay evidence to be admitted:
#Necessity: whether the benefit of the evidence would be lost in its entirety if it is not entered (i.e. the declarant, the person who originally made the statement, is unavailable, or there is no other source by which the evidence can be admitted and have similar value). #Reliability: this test is essentially the judicial determination of what would have been gained by cross-examination. In some cases, the circumstances in which the statement was made suggest its trustworthiness and reduce the danger of admitting evidence without an opportunity for cross-examination.
 
For a thorough discussion of the rules of hearsay admissibility, see ''Watt’s Manual of Criminal Evidence'' and ''R v Khelawon'', [2006] 2 SCR 787.
 
==== f) Leading a witness ====
Counsel is generally not permitted to lead its own witness (i.e. suggest answers), with the exception of preliminary matters such as the witness’s identity, residence, age, and other matters that are not at issue, and that merely help to set the stage. In any case, testimony that is adduced from leading questions tends to be afforded less weight, as the words have come from the mouth of someone other than the witness. '''Leading questions are proper and encouraged for cross-examination'''.
Counsel is generally not permitted to lead its own witness (i.e. suggest answers), with the exception of preliminary matters such as the witness’s identity, residence, age, and other matters that are not at issue, and that merely help to set the stage. In any case, testimony that is adduced from leading questions tends to be afforded less weight, as the words have come from the mouth of someone other than the witness. '''Leading questions are proper and encouraged for cross-examination'''.


==== g) Opinion evidence ====
==== f) Expert opinion evidence ====
Opinion evidence is permitted where it assists the trier of fact to draw conclusions from the evidence. There are two types of opinion evidence: non-expert and expert. Non-expert  opinion  evidence  is  generally  not  permitted.  Expert  evidence  is  not permitted where the trier of fact is capable of reaching a conclusion without such evidence. Expert opinions are necessary where the trier of fact would be unable to draw a conclusion with respect to the evidence. Experts must first be established as such – the determination is made in a ''Voir Dire'' (a trial within a trial). For a more complete explanation of the law on opinion evidence, see ''R v Mohan'' [1994] 2 SCR 9.
Opinion evidence is permitted where it assists the trier of fact to draw conclusions from the evidence. There are two types of opinion evidence: non-expert and expert. Non-expert  opinion  evidence  is  generally  not  permitted.  Expert  evidence  is  not permitted where the trier of fact is capable of reaching a conclusion without such evidence. Expert opinions are necessary where the trier of fact would be unable to draw a conclusion with respect to the evidence. Experts must first be established as such – the determination is made in a ''Voir Dire'' (a trial within a trial). For a more complete explanation of the law on opinion evidence, see ''R v Mohan'' [1994] 2 SCR 9.


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