DOCSLIB.ORG

COURSE TITLE: Law of Evidence II

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
COURSE TITLE: Law of Evidence II NATIONAL OPEN UNIVERSITY OF NIGERIA SCHOOL OF LAW COURSE CODE: LAW446 COURSE TITLE: Law of Evidence II 1 COURSE TITLE: Law of Evidence II Course Code: LAW 446 Course Title: Law of Evidence II Course Writers: Iroye Samuel Opeyemi Esq. School of Law, NOUN Course Editor: Dr. (Mrs .) Erimma Gloria Orie School of Law, NOUN Dean School Of Law : Prof. Justus Sokefun School of Law, NOUN Course Coordinators: Iroye Samuel Opeyemi Mr Nimisore Akano (Mrs) Folashade Aare (Mrs) 2 LAW 446: LAW OF EVIDENCE II Table of Contents Module 1 Unit 1: Evidence of Character Unit 2: Opinion Evidence Unit 3: Similar Fact Evidence Module 2 Unit 1: Hearsay Unit 2: Exceptions to the Rule against Hearsay I Unit 3: Exceptions to the Rule against Hearsay Rule II Module 3 Unit 1: Estoppels Unit 2: Competency and Compellability Unit 3: Privilege Unit 4: Corroboration Module 4 Unit 1: Burden and Standard of Proof Unit 2: Documentary Evidence Unit 3: Confessions Unit 4: Judges Rule Unit 5: Examination of witness 3 MODULE I UNIT 1: EVIDENCE OF CHARACTER CONTENTS 1.0 Introduction 2.0 Objectives 3.0 Main Contents 3.1 Definition of Terms 3.2 Character of Witness 3.3 What Constitutes Evidence of Bad Character 3.4 When Character Evidence Becomes Relevant 3.5 Character Evidence in Civil Proceedings 3.6 Character Evidence in Criminal Proceedings 5.0 Conclusion 5.0 Summary 6.0 Tutor Marked Assignment 7.0 References/Further Readings 1.0 INTRODUCTION According to the Black’s Law Dictionary 5th edition, Character is the aggregate of the moral qualities which belong to and distinguish an individual; the general result of the one’s distinguishing attributes. It describes it as that moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him. Blacks assert that ‘’Character’’ as the moral qualities of a person is the qualities the person possessed as against ‘’reputation’’ which is what others believe one to possess. The former is personal and real while the latter is external and based on other people’s knowledge and assessment. More often time when ‘’character’’ is used in relation to the law of evidence, it might be signifying ‘’reputation’’ which is what the people tends to know about the person. Character in relation to giving evidence could either be bad or good. The evidence of good character of an accused person or of a witness is admissible in evidence. It points to the direction that the allegation against him is less likely to be true. Conversely, the evidence of bad character or of bad reputation is inadmissible in both civil 4 and criminal proceedings, except where a statute specifically allows it. In this unit, you shall learn about character evidence generally, what character evidence is and the exceptional circumstances when it becomes relevant and admissible. 2.0 OBJECTIVES This unit is to project to the student a full and proper understanding of the term “Character Evidence”. It will also aid the students to identify when it is likely to be admitted or rejected in evidence. It further examines the Evidence of good and bad character and how such can be relevant. 3.0 MAIN CONTENT 3.1 Definition of Terms Literally, ‘character’ signifies a reputation and a disposition. Section 77 of the Evidence Act 2011 has defined the concept of the word “Character” in relation to the Law of Evidence. It is defines it as “reputation” as distinguished from “disposition”.- (b) Character evidence connotes evidence regarding someone’s personality traits; evidence of a person’s moral standing in a community based on reputation or opinion. It refers to one’s reputation – the esteem or otherwise, in which a person is held; the conviction based upon the person’s behaviour. 3.1.1 Character Evidence According to the Black’s Law Dictionary, character evidence refers to the evidence of a person’s moral standing in community based on reputation. The admissibility of Character evidence in Nigeria Legal practise is set out under the sections 77-82 of the Evidence Act, 2011. 3.1.2 Character Distinguished (a) Reputation and Disposition: A reputation must be distinguished from a disposition. Disposition according to Oxford Advanced Learner’s Dictionary, is a person’s natural qualities of mind and character. It is the natural way of behaviour towards others. The Black’s Law Dictionary, 5th Edition in consideration of it with respect to mental state defines it as an attitude, prevailing tendency, or inclination. One may be of an evil disposition and yet be of good reputation. The converse is equally true. (b) Character and Conduct You need also to distinguish character evidence from evidence of conduct or of behaviour. Conduct can be defined in relation to one’s action. According to Black’s Law Dictionary 5th edition, it means an action or omission and its accompanying state of mind, or where 5 relevant a series of acts and omission. Thus, in relation to character, conduct will be the action or inaction of an individual before the present fact. Character evidence will be admissible for example evidence of previous convictions which are related in substance to the offence charged- Section 82 (4) (5 ). It applies in both civil and criminal proceedings (Evidence Act 2011, Sections 78-82). (c) Character evidence and similar facts Similar facts evidence is defined in section 12 of the Evidence Act, which provides as follows: When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention or to rebut any defence that may otherwise be open to the defendant, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. It has two connotations. (a) Facts having general resemblance and (b) Facts having particular resemblance 3.1.3 Facts having general resemblance. Illustration: Fact situation one: A Stole, B murdered, C burgled. There is a general resemblance; each is a criminal; they are bad men or women. Fact situation two: ‘C’ is charged with stealing; three years earlier, he committed house breaking. Here is a similar fact evidence showing in each case that A is a criminal. 3.1.4. Facts having particular resemblance Illustration: Fact situation three: X is charged with obtaining N100,000 from Z by false pretence, that the ring is made of gold; some six months earlier, he had obtained N50,000 from Y by the same misrepresentation. Here also is a similar facts evidence showing that X is a bad man and a criminal whose particular modus operandi is obtaining money by false pretence. Facts situations one and two show general resemblance. They are irrelevant, not admissible in evidence, against A or C. Fact situation three is of a particular resemblance – distinctive modus operandi – and is admissible against X. It may be submitted that evidence of general resemblance or general evidence system is admissible only if apart from general resemblance, the Evidence Act allows it. But those 6 evidence which shows particular resemblance such that they fix the accused as the actor in each fact situation is relevant and admissible. The purpose of this type of evidence system (evidence of similar fact) is to show that the accused is to be guilty of the offence currently charged by simply showing that he or she had been guilty of other misconduct than the one primarily charged. You would have observed by now that similar facts evidence and an accused’s bad character reinforce each other or support the allegation made against the accused. Hence, evidence of bad character, which falls within the scope of similar facts evidence is relevant and admissible. Whenever evidence of bad character is relevant, evidence of previous conviction is also relevant. However, the general principle remains that: The evidence of character of either party to a judicial proceeding is irrelevant and inadmissible and in a criminal proceeding the evidence of bad character (reputation) of the accused, or his previous conviction or previous acquittal is also irrelevant and inadmissible unless the Evidence Act or other statute so permits. In this regard admissibility of evidence system in a criminal trial would be determined by asking, in each case whether the probative value of each evidence outweighs the prejudicial effect: DPP V P (1991). In civil proceedings, such evidence is admissible wherever it is relevant to determine the matter in issue provided it would not be oppressive or unfair to the other side to do so. See Mood Music Publishing Co Ltd v De Walfe Publishing Ltd (1976). 3.2 Character of the Witnesses The character of a witness is always relevant to his or her credit to show that he or she is a person of good character and worthy to be believed. The evidence of a witness’s character becomes relevant if he or she: . denies his or her previous conviction . has made inconsistent statements . denies bias in favour of one party . Where the reliability or credibility of a previous witness (e.g. medical evidence of abnormality of mind) may affect reliability of the witness’s testimony. The character of a prosecutrix may be impeached in sexual offences, thus in a charge of Rape and similar offences, a party may adduce evidence of her reputation to show that she is a common prostitute. 7 The prosecutrix may be cross-examined as to acts of immorality with men, other than the accused, for purpose of impeaching her credit in such a case.
Load more

Recommended publications
  • Ohio Rules of Evidence
    OHIO RULES OF EVIDENCE Article I GENERAL PROVISIONS Rule 101 Scope of rules: applicability; privileges; exceptions 102 Purpose and construction; supplementary principles 103 Rulings on evidence 104 Preliminary questions 105 Limited admissibility 106 Remainder of or related writings or recorded statements Article II JUDICIAL NOTICE 201 Judicial notice of adjudicative facts Article III PRESUMPTIONS 301 Presumptions in general in civil actions and proceedings 302 [Reserved] Article IV RELEVANCY AND ITS LIMITS 401 Definition of “relevant evidence” 402 Relevant evidence generally admissible; irrelevant evidence inadmissible 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or undue delay 404 Character evidence not admissible to prove conduct; exceptions; other crimes 405 Methods of proving character 406 Habit; routine practice 407 Subsequent remedial measures 408 Compromise and offers to compromise 409 Payment of medical and similar expenses 410 Inadmissibility of pleas, offers of pleas, and related statements 411 Liability insurance Article V PRIVILEGES 501 General rule Article VI WITNESS 601 General rule of competency 602 Lack of personal knowledge 603 Oath or affirmation Rule 604 Interpreters 605 Competency of judge as witness 606 Competency of juror as witness 607 Impeachment 608 Evidence of character and conduct of witness 609 Impeachment by evidence of conviction of crime 610 Religious beliefs or opinions 611 Mode and order of interrogation and presentation 612 Writing used to refresh memory 613 Impeachment by self-contradiction
    [Show full text]
  • Expert Witnesses
    Law 101: Legal Guide for the Forensic Expert This course is provided free of charge and is designed to give a comprehensive discussion of recommended practices for the forensic expert to follow when preparing for and testifying in court. Find this course live, online at: https://law101.training.nij.gov Updated: September 8, 2011 DNA I N I T I A T I V E www.DNA.gov About this Course This PDF file has been created from the free, self-paced online course “Law 101: Legal Guide for the Forensic Expert.” To take this course online, visit https://law101.training. nij.gov. If you already are registered for any course on DNA.gov, you may logon directly at http://law101.dna.gov. Questions? If you have any questions about this file or any of the courses or content on DNA.gov, visit us online at http://www.dna.gov/more/contactus/. Links in this File Most courses from DNA.Gov contain animations, videos, downloadable documents and/ or links to other userful Web sites. If you are using a printed, paper version of this course, you will not have access to those features. If you are viewing the course as a PDF file online, you may be able to use these features if you are connected to the Internet. Animations, Audio and Video. Throughout this course, there may be links to animation, audio or video files. To listen to or view these files, you need to be connected to the Internet and have the requisite plug-in applications installed on your computer.
    [Show full text]
  • Case 1:08-Md-01928-DMM Document 13882 Entered on FLSD Docket 07/03/13 14:21:40 Page 1 of 25
    Case 1:08-md-01928-DMM Document 13882 Entered on FLSD Docket 07/03/13 14:21:40 Page 1 of 25 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-MD-1928-MIDDLEBROOKS/JOHNSON IN RE: TRASYLOL PRODUCTS LIABILITY LITIGATION - MDL-1928 This Document Relates To: Alan Miller, et al. v. Bayer Corp., et al., Case No. 09-81262 _________________________________________/ ORDER ON MOTION FOR SUMMARY JUDGMENT THIS CAUSE comes before the Court upon Defendants’ (hereinafter, collectively, “Bayer’s”) Motion for Summary Judgment (“Motion”) (DE 12395 in 08-1928 & DE 33 in 09-81262). Plaintiffs filed a Response (DE 12568 in 08-1928 & DE 35 in 09-81262), to which Bayer replied (12660 in 08-1928 & DE 36 in 09-81262). The Court has reviewed the pertinent parts of the record and is advised in the premises. For the reasons stated below I find that the Motion is due to be granted as to all Counts. I. Factual Background 1 In this case Plaintiffs are husband and wife, Alan and Vicki Miller. They are and were at 1 The following facts are either undisputed or established by evidence attached as Exhibits to either the Defendant’s Motion (“DEFEX”) or the Plaintiffs’ Response (“PLEX”). They shall be referred to DEFEX __ at__ – or PLEX __ at __ accordingly. Case 1:08-md-01928-DMM Document 13882 Entered on FLSD Docket 07/03/13 14:21:40 Page 2 of 25 all times relevant to the facts herein, citizens of the State of Illinois.2 On November 3, 2004, Mr.
    [Show full text]
  • A Judicial Perspective on Opinion Evidence Under the Federal Rules, 39 Wash
    Washington and Lee Law Review Volume 39 | Issue 2 Article 4 Spring 3-1-1982 A Judicial Perspective On Opinion Evidence Under The edeF ral Rules George C. Pratt Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Evidence Commons Recommended Citation George C. Pratt, A Judicial Perspective On Opinion Evidence Under The Federal Rules, 39 Wash. & Lee L. Rev. 313 (1982), https://scholarlycommons.law.wlu.edu/wlulr/vol39/iss2/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. A JUDICIAL PERSPECTIVE ON OPINION EVIDENCE UNDER THE FEDERAL RULES GEORGE C. PRATT* I. Introduction The purpose of this article is to focus upon some practical aspects of opinion evidence under the Federal Rules of Evidence. The issues, sug- gestions, and problems posed are largely intuitive, and are derived primarily from trial experience. Implicit in the discussion are one major premise and two minor premises. The major premise is that Article VII of the Federal Rules of Evidence represents a realistic, practical, and desirable approach to the problems associated with opinion testimony. The two minor premises arise from application of Article VII in prac- tice and relate to the role of attorneys and trial judges in achieving the maximum benefits from Article VII.
    [Show full text]
  • Opinion and Expert Evidence Under the Federal Rules Herman Edgar Garner Jr
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Louisiana State University: DigitalCommons @ LSU Law Center Louisiana Law Review Volume 36 | Number 1 The Federal Rules of Evidence: Symposium Fall 1975 Opinion and Expert Evidence Under the Federal Rules Herman Edgar Garner Jr. Repository Citation Herman Edgar Garner Jr., Opinion and Expert Evidence Under the Federal Rules, 36 La. L. Rev. (1975) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol36/iss1/11 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. OPINION AND EXPERT EVIDENCE UNDER THE FEDERAL RULES The Anglo-American judicial system has placed great emphasis on obtaining the best evidence possible to aid the trier of fact in the determination of disputed issues.1 Accord- ingly, courts, including those in Louisiana, traditionally banned receipt of opinion testimony, requiring instead more reliable factual testimony.2 However, strict application of the ban against opinion evidence has proved undesirable and has resulted in judicial exceptions to circumvent the rule.3 Con- gress recently codified most of these exceptions in the Fed- eral Rules of Evidence; 4 hence the new Rules should serve to admit more opinion evidence than traditionally was allowed, while still providing, safeguards to prevent any undue prej- udice that might result from its admission. The Rules reflect an analytical approach to admissibility that insists that opin- ion evidence be received only from one who is both trustwor- thy and knowledgeable, and that it be helpful to the trier of fact.5 The accuracy of opinion testimony additionally is vouchsafed by the relevancy requirements of the Federal Rules6 and by the opposing party's right of cross- examination.
    [Show full text]
  • Lay Opinion Testimony and Expert Testimony
    LAY OPINION TESTIMONY AND EXPERT TESTIMONY Paul M. Newby Associate Justice Supreme Court of North Carolina 2010 Presentation to North Carolina Superior Court Judges Chapel Hill, North Carolina October 2010 TABLE OF CONTENTS1 I. Rules and Statutes...………………………………………………………………..3 II. Standard of Review and Limitations.……………………………………………...6 III. RULE 701……...…………………………………………………………………..7 a. Brandis & Broun…..………………………………………………………..7 b. Rule 701 Cases……………………………………………………………..8 IV. RULE 702……………………...…………………………………………………20 a. Brandis and Broun .……………………………………………………….20 b. [Continuing] Case Law Evolution………………………………………...22 c. Rule 702 Cases……………………………………………………………26 V. Other Considerations……………………………………………………………..41 1 Judge Sanford Steelman of the Court of Appeals graciously allowed the use of his materials on Rule 701 et seq., the entirety of which is found at: http://www.sog.unc.edu/programs/judicialcollege/documents/Steelman_700SeriesRules.pdf. Law Clerks Craig Schauer and Elizabeth Henderson, as well as summer interns Richard Andrews and Campbell Law Laura Barringer, provided assistance in developing this manuscript and accompanying presentation. I. Rule and Statutes Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 602. Lack of personal knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
    [Show full text]
  • Testimonial Hearsay As the Basis for Expert Opinion: the Intersection of the Confrontation Clause and Federal Rule of Evidence 703 After Crawford V
    Hastings Law Journal Volume 55 | Issue 6 Article 5 1-2004 Testimonial Hearsay as the Basis for Expert Opinion: The nI tersection of the Confrontation Clause and Federal Rule of Evidence 703 after Crawford v. Washington Ross Andrew Oliver Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Ross Andrew Oliver, Testimonial Hearsay as the Basis for Expert Opinion: The Intersection of the Confrontation Clause and Federal Rule of Evidence 703 after Crawford v. Washington, 55 Hastings L.J. 1539 (2004). Available at: https://repository.uchastings.edu/hastings_law_journal/vol55/iss6/5 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Testimonial Hearsay as the Basis for Expert Opinion: The Intersection of the Confrontation Clause and Federal Rule of Evidence 703 After Crawford v. Washington Ross ANDREW OLIVER* INTRODUCTION In contrast to criminal procedure in civil law countries, and in response to abusive prosecutions based primarily on hearsay, common law courts by the late eighteenth century had established a rule that evidence against a criminal defendant should be given by a witness with personal knowledge and should be tested for reliability by adversarial cross-examination. Ratified in 1791, the Sixth Amendment embodies this rule in its Confrontation Clause, which guarantees that "[iln all criminal prosecutions, the accused shall enjoy the right.., to be confronted with the witnesses against him."' Over time, U.S.
    [Show full text]
  • You Must Be This Qualified to Offer an Opinion: Permitting Law Enforcement Officers to Testify As Laypersons Under Federal Rule of Evidence 701
    Fordham Law Review Volume 81 Issue 6 Article 9 2013 You Must Be This Qualified ot Offer an Opinion: Permitting Law Enforcement Officerso t Testify as Laypersons Under Federal Rule of Evidence 701 Kim Channick Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Kim Channick, You Must Be This Qualified ot Offer an Opinion: Permitting Law Enforcement Officerso t Testify as Laypersons Under Federal Rule of Evidence 701, 81 Fordham L. Rev. 3439 (2013). Available at: https://ir.lawnet.fordham.edu/flr/vol81/iss6/9 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. NOTES YOU MUST BE THIS QUALIFIED TO OFFER AN OPINION: PERMITTING LAW ENFORCEMENT OFFICERS TO TESTIFY AS LAYPERSONS UNDER FEDERAL RULE OF EVIDENCE 701 Kim Channick* Every day, in courtrooms across the United States, law enforcement officers testify in criminal and civil trials. Often an officer is certified as an expert witness and, accordingly, can provide opinions to the court based on his or her law enforcement expertise. Other times, the officer offers testimony as a layperson. In the latter situation, Federal Rule of Evidence 701 controls the officer’s lay opinion testimony. This Rule was first adopted to remedy a problematic common law practice of universally prohibiting lay opinion testimony.
    [Show full text]
  • Mistaken Identification
    If you have issues viewing or accessing this file, please contact us at NCJRS.gov. Mistaken Identification Y~~ %AW ® ® 4 S BRIAN L. CUTLER IlL STEVEN D. PENROD • J Mistaken identification Mistaken identification The eyewitness, psychology, and the law BRIAN L. CUTLER Florida International University STEVEN D. PENROD University of Nebraska-Lincoln NCJRS :! JAN ]i? 1906 ~ t ? ACQUISiTiONS ~ CAMBRIDGE UNIVERSITY PRESS Published by the Press Syndicate of the University of Cambridge The Pitt Building, Trumpington Street, Cambridge CB2 1RP 40 West 20th Street, New York, NY 10011-4211, USA l0 Stamford Road, Oakleigh, Melbourne 3166, Australia © Cambridge University Press 1995 First published 1995 Printed in the United States of America Library of Congress Cataloging-in-Publication Data Cutler, Brian L. Mistaken identification : the eyewitness, psychology, and the law / Brian L. Cutler, and Steven D. Penrod. p. ca. Includes bibliographical references and index. ISBN 0-521-44553-1 (hc). - ISBN 0-521-44572-8 (pbk.) 1. Eyewitness identification - United States. 2. Criminals - United States - Identification. 3. Psychology, Forensic. I. Penrod, Steven. II. Title. KF9672. C87 1995 363.2'58 - dc20 94-45187 CIP A catalog record for this book is available from the British Library. ISBN 0-521-44553-1 Hardback ISBN 0-521-44572-8 Paperback Contents The authors vii Preface ix Part I Introduction 1 Eyewitness identification errors Part II Eyewitnesses, expert psychologists, and the law 2 The admissibility of expert testimony on the psychology of eyewitness
    [Show full text]
  • Rule 704: Opinion on Ultimate Issue
    Touro Law Review Volume 12 Number 2 Article 23 1996 Rule 704: Opinion on Ultimate Issue Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Courts Commons, and the Evidence Commons Recommended Citation (1996) "Rule 704: Opinion on Ultimate Issue," Touro Law Review: Vol. 12 : No. 2 , Article 23. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol12/iss2/23 This Symposium: The Supreme Court and Local Government Law is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. et al.: FRE and NY Evidence Comparison RULE 704: OPINION ON ULTIMATE ISSUE Federal Rule of Evidence 704 states: (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.I Rule 704, which applies to both lay and expert witnesses, abolished the traditional rule against admitting testimony on an ultimate issue.2 This traditional rule was criticized as depriving the fact finder of useful information and being difficult to apply.3 A further criticism was that the traditional approach was unduly restrictive because it "often unfairly obstruct[ed] the presentation of a party's case.
    [Show full text]
  • Opinion Evidence D
    Osgoode Hall Law Journal Article 3 Volume 16, Number 2 (October 1978) Opinion Evidence D. C. McDonald Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information McDonald, D. C.. "Opinion Evidence." Osgoode Hall Law Journal 16.2 (1978) : 321-336. http://digitalcommons.osgoode.yorku.ca/ohlj/vol16/iss2/3 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. OPINION EVIDENCE By THE HONOUPRALE MR. JUSTICE D. C. MCDONALD* The rule which excludes opinion evidence has caused little difficulty in Canadian and Commonwealth experience. In the United States, however, the rule has been heavily relied upon at trial and on appeal by counsel seeking to limit the scope of opinion evidence. Hence, in that country, the appellate jurisprudence on the subject is large, and the concern for reform great. In Canada, the absence of substantial difficulty results in no pressing need for reform. The drafters of the Federal Code,1 and the authors of the accompanying note, like the authors of the Ontario Law Reform Commission's2 working paper, proceed from the premise that the rule is without foundation in logic or policy. Logically, or perhaps, more accurately, physiologically, as the note says, "there is no clearcut distinction between what a witness states as a fact and [what he states] as an opinion." 3 As for justification of the rule on some basis of policy, the common reason given is that to permit a witness to state his opinion is to allow him to usurp the function of the jury, whose traditional role has been to draw inferences (opinions) from the facts conveyed to it by witnesses.
    [Show full text]
  • Juror Perceptions of Eyewitness Identification Evidence
    Wilfrid Laurier University Scholars Commons @ Laurier Theses and Dissertations (Comprehensive) 2014 Juror Perceptions of Eyewitness Identification videnceE Timothy G. Wykes Wilfrid Laurier University, [email protected] Follow this and additional works at: https://scholars.wlu.ca/etd Part of the Criminology Commons, Evidence Commons, and the Social Psychology Commons Recommended Citation Wykes, Timothy G., "Juror Perceptions of Eyewitness Identification videnceE " (2014). Theses and Dissertations (Comprehensive). 1679. https://scholars.wlu.ca/etd/1679 This Thesis is brought to you for free and open access by Scholars Commons @ Laurier. It has been accepted for inclusion in Theses and Dissertations (Comprehensive) by an authorized administrator of Scholars Commons @ Laurier. For more information, please contact [email protected]. JUROR PERCEPTIONS 1 JUROR PERCEPTIONS OF EYEWITNESS IDENTIFICATION EVIDENCE by Timothy G. Wykes B.A. (Honours), Criminology & Justice, University of Ontario Institute of Technology, 2010 THESIS Submitted to the Faculty of Human & Social Sciences in partial fulfilment of the requirements for Master of Arts Wilfrid Laurier University © Timothy Graham Wykes 2014 JUROR PERCEPTIONS 2 Abstract Jurors rely on eyewitness testimony in deciding a defendant’s guilt or innocence. Archival analyses of hundreds of post-conviction DNA exonerations have identified eyewitness misidentification as the highest individual factor contributing to wrongful convictions (Innocence Project, 2014). Internationally, criminal justice systems have employed procedural safeguards (PSs) to educate juries on factors affecting eyewitness identification accuracy. Two such safeguards include the introduction of eyewitness expert testimony during trial proceedings and the reading of cautionary instructions by a presiding judge. In an independent factorial design, this research sought to examine the effects of a model judicial caution drafted by the Ontario Judicial Council (2012) and eyewitness expert testimony on jurors.
    [Show full text]