INDG 401 Lecture Notes - Lecture 10: Voir Dire, Jury Trial, Exclusionary Rule
9 Jun 2018
School
Department
Course
Professor
Criminal Evidence – Feb 2, 2018
Last class cancelled.
Readings for this class: Cinous, Seaboyer, White (relevance, ProV and PreE) & Khan, Khelawon (Hearsay)
Some questions to consider:
• What is relevant? Why? (must explain to judge)
o Shows you must know WHY you are asking the questions you are – where are you going with
your line of questioning
o Cinous
▪ Must have an air of reality when you present something to the court
o White
o Relevant to what?
▪ Seaboyer
• Even if relevant, is there an exclusionary rule?
o I.e. hearsay
▪ Khan and Khelowan: sometimes it can be saved
• Even if not excluded by a rule, sometimes its prejudicial effect overtakes the probative value, and
the judge will make that call
o Seaboyer
• Consider how all of these cases fit together
• Consider how the behaviour of the lawyers change when there is a jury
o These issues are usually solved before the jury trial
o The judge will let the witness talk through a narrative, even if it's hearsay, and the lawyers will
know that the judge will not take it into account. This cannot be done with a jury... at the same
time... lawyers can't object to everything when a jury is around, which is why they'll go up to
speak with the judge privately
Introduction
• Relevance: it's enough for the lawyer to just object during trial
• Hearsay: proving not only that the statement was made but that it is true
o not enough just to object to it. Must really understand it. Sometimes you don't object to hearsay
b/c it won't affect the evidence, but sometimes something little does matter and you fight it out
for days
• Understand when to object and when not to
• Prejudicial effect & probative value
o R v White: there was no objection to the prejudicial effect, so you can't complain about it after.
Shows importance of objecting at the right time
• Voir dire
o I.e. Crown argues it is hearsay but defence says it should be admitted. Defence will ask to open
a voir dire to determine admissibility of the state.
o When you open a voir dire, it's like a trial within a trial, or a hearing, to determine if the
statement is admissible. Anything that is said during the voire dire is not evidence, it's in a
bubble WAITING to see if any of it (like a statement) can be allowed into evidence, based on
what the judge decides regarding admissibility. In a voir dire, witnesses can make statements,
but it is ONLY the specific statements which are explicitly allowed by the judge and admitted
find more resources at oneclass.com
find more resources at oneclass.com
into evidence are actually evidence. If you ask about something else in trial which was
mentioned in the voir dire but not admitted into evidence, then the judge will not allow it
o I.e. Khan: trying to judge the admissibility of the child's statement
o Admissibility relies on necessity and reliability (Khleawon and Khan)
▪ Not ultimate reliability, but THRESHOLD reliability
▪ ***The statement must be proven to be reasonably necessary
• Is the child available? Consider: age, trauma, memory, competency. Remember though,
an older child can be more traumatized than a younger child, so it really depends on
the person. Helpful to have a psychologist to assess why the child cannot come in and
testify. Usually though, the it's harder to show that an older child cannot come testify,
so the statement is considered hearsay and not admissible.
• Prof: is it enough to have witnesses come in to spare the child? Or do we really need the
child to come in and for the trial judge to see the child deteriorate at trial?
• Worry of the supreme court: putting too much relevance on a piece of evidence which will result in
a wrongful conviction
R v White
• Facts: 2 guys fighting with a loaded gun. One fired and killed the other. Identity is not an issue,
but defence is that the gun went off accidentally and he ran away
• Relevance
1. If it's relevant, it's admissible.
2. Is there an exclusionary rule?
3. Prejudicial effect of the evidence? does it outweigh the probative value? If so, it should not be
admissible
• Circumstantial evidence: how the accused acted right after the crime
o Makes it highly probative for the Crown, BUT very prejudicial
o However, the Crown did not make this behaviour a big part of the case, which was strategic on
their part (b/c the defence would have objected)
• Para 22: The principle that after-the-fact conduct may constitute circumstantial evidence of guilt
remains good law. At its heart, the question of whether such evidence is admissible is simply a
matter of relevance (White (1998), at para. 23). As Major J. noted in White (1998), [e]vidence of
post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In
some cases it may be highly incriminating, while in others it might play only a minor corroborative
role para. . As with all other evidence, the relevance and probative value of post-offence
conduct must be assessed on a case-by-case basis (para. 26). Consequently, the formulation of
limiting instructions with respect to the broad category of post-offence conduct is governed by the
same principles as for all other circumstantial evidence.
• Para 31: Given that [e]vidence of post-offence conduct is not fundamentally different from other
kids of irustatial eidee, the adissiilit of eidee of post-offence conduct and the
formulation of limiting instructions should be governed by the same principles of evidence that
govern other circumstantial evidence. In particular, to be admissible, such evidence must be
relevant to a live issue and it must not be subject to a specific exclusionary rule (e.g. the hearsay
rule); it may also be excluded pursuant to the exercise of a recognized judicial discretion (D.
M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 26), such as the discretion to
exclude evidence whose prejudicial effect outweighs its probative value. These same principles also
determine the need for and scope of a limiting instruction.
o ***Shows not enough to say there is an exclusionary rule. Even if not excluded by a rule,
the judge can still exclude it b/c it's prejudicial
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Readings for this class: cinous, seaboyer, white (relevance, prov and pree) & khan, khelawon (hearsay) This cannot be done with a jury at the same time lawyers can"t object to everything when a jury is around, which is why they"ll go up to speak with the judge privately. Introduction: relevance: it"s enough for the lawyer to just object during trial, hearsay: proving not only that the statement was made but that it is true, not enough just to object to it. Shows importance of objecting at the right time: voir dire. Crown argues it is hearsay but defence says it should be admitted. Defence will ask to open a voir dire to determine admissibility of the state: when you open a voir dire, it"s like a trial within a trial, or a hearing, to determine if the statement is admissible.
