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16 Cards in this Set
- Front
- Back
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What is oral evidence? What must it be given under? What is real evidence? What is a view? |
Evidence given verbally by a witness -- must be given under oath or solemn affirmation; Tangible evidence that is put before the trier of fact (brought to court and entered as an exhibit If evidence is too large for courtroom, jury will be transported to site to view evidence |
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What is documentary evidence? What is the best evidence rule? - if original document is not available? |
Any document including writing, video, film, tapes, and photos presented in the court for reference by the judge; Original document must be presented in evidence (if there is a question of forgery rule becomes important) - Judge will assess what weight he will give to the document (opposed to excluding it entirely) |
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With documentary evidence, what criteria do judges use for admissibility? |
Accuracy, fairness/absence of potential to mislead, and verification on oath of a witness that they are what they purport to be |
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How will computer generated records where data is inputted by humans be viewed? How about where data is generated from computer itself? Why is the recreation of events of a programmer dangerous? |
May be viewed as hearsay; Won't be viewed as hearsay Really easy to skew numbers - programmer might only show what they want to have shown |
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What is spoliation? Is there a possible recovery? |
The destruction, mutilation, alteration, or concealment of evidence; Having the evidence retrieved where possible can be done, but may not be accepted as being reliable (if evidence would have been helpful, onus is on defense and that they should have been proactive in retrieving evidence - favours the plaintiff) |
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What is demonstrative evidence? |
Models, maps, diagrams created to help trier of fact understand what happened (charts, summaries to frame evidence, videos - if view is unavailable) |
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How is a witness formally called to testify in a criminal case? How is a witness formally called to testify in a civil case? What is competence? What is capacity? |
With a subpeona; requires witness to appear at a hearing in a criminal case With a summons; requires witness to appear at a hearing in a criminal case The legal ability to give oral evidence in a hearing An acceptable ability to observe and then correctly recall observations or experiences, and to communicate these to the court |
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What is responsibility? What does it mean to be incompetent? What does compellability mean? Who is not compellable? |
The ability to comprehend the necessity of being honest and the consequences for telling the truth; Not permitted to give evidence (mentally incapable, spouse, children) A personal is legally required to give evidence at a hearing; A defendant and spouses are generally not compellable |
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What is examination in chief? What is a leading question? Are all leading questions objectionable? Are leading questions allowed in direct exam? |
Examination of a witness by the party who called the witness; objective is to bring out information that will establish facts that the litigant must prove; A question that contains the answer being sought or presumes a fact that has not been proved NO - not if they are obtaining information that is introductory or uncontentious NO |
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When are leading questions allowed? (5) |
-To jog/jump start memory -Aid in communicating complex matters -Question statements made by others to contradict them -Allow witness to identify objects in evidence -Facilitate testimony of nervous, confused, young, or old witnesses |
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What is cross-examination? What does it challenge? Are leading questions used in cross? |
The questioning of a witness by the opposing litigant after exam in chief Challenges evidence already given YES - extensively |
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Can leading questions in cross be restricted? What are the limitations? What is the significance of R. v. Ellard? |
Yes, limitations on cross CAN be restricted if they are irrelevant, have excessive detail, or are insulting Details a cross exam that repeatedly asks a witness to explain why another witness would lie is a form of causing reverse onus, which is considered improper |
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What is a hostile witness? How are you able to question this kind of witness? What is an adverse witness? Why are declarations of hostile and adverse witnesses used? |
A witness you have called, but who is uncooperative and responds with hostility; if court allows, you may question this witness by way of cross examination (leading questions) One who is uncooperative, but does so nicely (clearly has interest aligned with opposing party) To impeach evidence, not to attack character of the witness |
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What must counsel give a witness in cross exam? Why? What is the rule of Brown v. Dunn? |
Must give witness an opportunity to explain contradictions or inconsistencies; Done to ensure fair process If there is no cross examination on a point, one can neither impeach the witness or argue the witness should be disbelieved -- allows witness to explain inconsistencies, especially if there are documents a witness has not sen before (some flexibility to this rule) |
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What is re-examination? What is restricted in re-exam? What can a re-exam not be used for? |
Examination is open to the party whose witness is on the stand and has been cross-examined by the opposing party; restricted to asking questions that were not dealt with in exam in chief that the examiner could not have anticipated would be dealt with in cross Cannot be used as a second chance to enter missed evidence or to re-emphasize key points; cannot be used to 'split the case' (most of the time there are no re-examinations) |
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What can credibility be used for? What are some techniques used in this? |
Credibility can be challenged to taint evidence and make it unbelievable -Show bias to taint evidence -Show witness has interest aligned with opponent -Establish witness may have fabricated story -Show witness is prejudiced against a party -Attack character by showing criminal record -Attack witness's reputation |
