INDG 401 Lecture Notes - Lecture 9: Voir Dire, Cross-Examination, Jaguar
9 Jun 2018
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Criminal Evidence – March 2
Similar Fact Evidence
Guest Lecture: Justice Pierre Labelle (Cour du Qc)
• Judges of Cour du Qc benefit from the jurisdiction of judge alone. Means they do 97-98% of all
criminal trials in the province (except by judge and jury, I.e. asked for that or nature of crime like
murder)
o Judges are involved throughout the entire process
• What makes a witness credible?
o It's not how a person is giving evidence that is important, but what the evidence is... how
truthful does it look compared to everything else you've seen in the case?
o Credibility rests on probative value of the evidence
• Big istake that litigators ake: the do’t liste to the witesses!
• Cross eaiatio: pik a goal ad do’t touh upo what has alread ee good for ou. Do’t
make the witness repeat him/herself b/c this bolsters credibility. Sometimes it's better not to cross-
examine
• Beyond a reasonable doubt: worse cases are when the jury doesn't believe the accused but
prosecution can't prove it beyond a reasonable doubt
o If you're asking the probability of whether s/he is guilty or not, you already have a reasonably
doubt
• Justice Benoto's 2018 ONCA case for probative value vs prejudicial effect
Similar Fact Evidence
• Very difficult to be successful in an application of similar fact evidence b/c the evidence is very
prejudicial (to the point where it is more prejudicial than probative)
• Sometimes similar fact evidence is used in bank robberies
• When applying a similar fact rule, you must choose which incidents are most similar – it's not about
quantity but quality
• Tension btwn admissibility weighing vs ultimate weighing of evidence
• What are the inferences the Crown is inviting the jury to draw? Is it prejudicial? Is it going to steer
them away from the evidence and more towards moral reasoning?
• You CANNOT introduce evidence on the character of the accused
• Once similar fact evidence is admitted in the voir dire, you should remember to tender the
statement of voir dire into evidence
• The burden: Nexus on the facts of the charge and the facts of similar evidence are so high. it is
impossible for it to be a coincidence.
o The other end of the spectrum is pure propensity
R v Handy
• Facts: Handy and complainant had consensual sex which became violent. Crown brought
in Handy's ex-wife to testify to having previously suffered similarly.
• Issue (p915): credibility on consent
o Not the fact that I want to present to evidence, but the PURPOSE to which I want to use it
▪ Think of hearsay rule: hearsay when we're trying to tender the evidence for the truth of its
content
• Once we determine the issue, we can determine relevance
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Guest lecture: justice pierre labelle (cour du qc) Judges of cour du qc benefit from the jurisdiction of judge alone. Means they do 97-98% of all criminal trials in the province (except by judge and jury, i. e. asked for that or nature of crime like murder) Do(cid:374)"t make the witness repeat him/herself b/c this bolsters credibility. Sometimes it"s better not to cross- examine: beyond a reasonable doubt: worse cases are when the jury doesn"t believe the accused but prosecution can"t prove it beyond a reasonable doubt. If you"re asking the probability of whether s/he is guilty or not, you already have a reasonably doubt. Justice benoto"s 2018 onca case for probative value vs prejudicial effect. Similar fact evidence: very difficult to be successful in an application of similar fact evidence b/c the evidence is very prejudicial (to the point where it is more prejudicial than probative) Facts: handy and complainant had consensual sex which became violent.
