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18 Cards in this Set
- Front
- Back
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Doe the General Exclusionary Rule include the exclusion of opinions? |
Yes. What is seen and heard is evidence. Opinions of what happened are speculatory. Excluded on second stage admissibility.
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What exceptions apply to the exclusion of opinion evidence? |
Lay Person's Opinions
Expert Opinions
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Acceptable Lay Person Opinion Evidence |
Can testify when opinion is a compendium of factual observations. -measurements -speed -identity -state of mind -sobriety -handwriting (s.8 CEA) - testamentary capacity |
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What is expert evidence?
What is required for an expert to testify? |
Evidence from a person with special knowledge on a matter at issue.
Qualifications in that area must be proven in a voir dire or admitted by opponent.
BOP. |
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Mohan Test for Admissibility |
Test for Expert Evidence The evidence must be: - necessary and reliable - from a qualified expert - relevant - no exclusionary rule (relevance and exclusions are always a requirement of admissibility) |
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Mohan Test: Necessity |
If the matter is within the general common experience of the TOF then expert evidence is not admissible.
The TOL decides if evidence is necessary. |
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Mohan Test: Reliability |
Both the area of expertise and the witness must be reliable. Area of study: - generally accepted or well known - subject matter of opinion must be generally accepted within the area of study Expert witness: - has necessary background - qualifications proven in voir dire or admitted |
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Is an Expert Opinion given based on the actual evidence presented at trial? |
If TOL lets the expert stay for the trial, then opinion can be based on the evidence heard. (Witnesses are usually excluded)
If excluded, the questions for the expert must be hypothetical but based on the evidence.
If proponent mischaracterizes the evidence heard, object. Expert opinions must remain within their area of study |
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Expert Evidence: What does the TOF decide? |
1) Whether the expert is qualified to testify. (Could give their testimony no weight)
2) Whether to accept none, all or part of the opinion and how it applies to the case. |
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Qualify an Expert: What to ask? |
Based on study and/or experience.Degree not necessary. Being "the expert" not necessary. -Years of study - experience -publications -refreshers: recent lectures/conferences -how they keep up to date -previous court experience
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Cross-Examining Experts |
1) Attack basis of opinion -point to underlying facts that aren't made out -ask if one or more fact was different, would the opinion change 2) Attack expertise: credentials, bottom/middle of class? 3) Call your own expert - s. 7 CEA: limit of 5 witnesses |
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Why are privileged communications excluded? |
Policy reasons! |
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What is the only class/blanket category of privilege that is always excluded? |
Solicitor-Client.
Other privileges are decided on a case-by-case basis. Even priest-person and doctor-patient. |
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Privilege: When is "Furtherance of Settlement" excluded? Why? |
Requires: 1) existing legal dispute (doesn't have to be filed) 2) expressed/implied intention to explore settlement 3) TOL finds there was an attempt to effect settlement Exception: If issue is unlawful communication/fraud/deception Why? Public Policy: Want to encourage settlement
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Wigmore Test to determine Privilege |
1) the communication must originate in confidence that it will not be disclosed 2) confidentiality must be essential to maintaining the relationship 3) the community thinks the relationship should be "sedulously fostered" (carefully/diligently maintained) 4) the injury to the relationship from disclosure would be greater than the benefit gained in court |
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Spousal Privilege: What sections in CEA and AEA? |
CEA s. 4(3)
AEA s. 8 (extends to Adult Interdependent Partnerships) |
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Spousal Privilege |
-extends to all communications not observations -married at time of communication -survives death and divorce -does not extend to overhearing 3rd parties -witness exercises privilege, not counsel -spouse can waive privilege
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What is an exception to Spousal Priviledge? |
Absolute privilege can't be waived if court appoints mediators in Divorce Act |
