The Law of Evidence: Fact Finding, Fairness, and Advocacy
This text provides a uniquely well considered and systematic approach to the study of legal evidence. The authors have adopted a tripartite organization that introduces readers to three separate phases of evidence management. In the Fact Finding segment, readers learn, with the help of an extensive excerpt from a legal transcript, how facts are determined or constructed, how such issues as relevance, reliability, and compellability of witnesses are determined, and how the issue of doubt is dealt with. In the Fairness segment, the authors encourage their readers to consider how issues such as respect for privacy, the interests of justice, and the rights of accused persons influence evidence gathering and admissibility. Finally, in the segment on Advocacy, the readers are introduced not only to the skills that make a good advocate, but also to the ethical considerations that inform decisions made in the course of interpreting and presenting evidence.
Rich with thought-provoking readings, commentary, and exercises, these materials are unrivalled in Canada, both as a teaching resource and as source of new inspiration and information for practitioners.
Typically, students in Canadian law schools are encouraged or at least permitted to take the existence of the "facts" for granted, until they take a course on the law of evidence. There is a common focus on appellate decisions, and students are routinely required to accept as given the facts in hypothetical questions designed to develop skills in arguing about and analyzing legal doctrines and policies. Even in moot competitions, arguments are made without transcripts.
The focus changes in the study of evidence to the processes of fact determination, looking for facts, identifying relevant facts, advocating for particular perspectives on what the facts are, and weighing the facts, as well as applying legal and ethical norms to all of these processes. All the basic themes of this collection of teaching materials can be found in the above and are reflected in the overall organization of the book. First, we look at Fact Finding, focusing on different types and status of knowledge and knowers, as well as how decision makers reason about information. Then, with respect to Fairness, we examine relevant values, such as the need for impartial and egalitarian fact finding, respect for privacy, the interests of the administration of justice, and the rights of accused persons. Last, we turn to Advocacy and focus on the skills that are fundamental to litigation in an adversarial system and stress the interconnectedness of evidence doctrines, as well as the concepts of fact finding, fairness, and advocacy themselves.
Attention to the institutional and procedural context, to the applicable sources of law, including constitutional values and ethics, and to the social location of people affected by that law all play apart in evidence advocacy. The raw material for such advocacy is normally found in the testimony of witnesses, although there are other types of evidence too, such as documents, which play a significant role in civil litigation. In order to assist you in understanding how an advocate develops an argument based on testimony within the context of the rules of evidence, we have included a transcript of a criminal trial at an early stage.
Further, in order to help you develop advocacy skills, we include exercises. At first, such exercises include sample arguments and, later, suggestions about how you might wish to consider them. Finally, exercises are included without guidance so that you can practise a range of skills on your own — issue identification, the application of doctrine, including consideration of the impact of such doctrine in terms of access to justice, the application of ethical and constitutional standards, fact analysis in a range of institutional and procedural settings, the testing of "commonsense" assumptions, and attention to underlying policies.
- Table of Cases
Part I: Fact Finding
- Chapter 1: The Construction of Knowledge
- The Operation of Mental Filters
- The Fact Determination Process
- Judicial Notice
- Chapter 2: Basic Concepts
- Exclusionary Rules
- Judicial Discretion
- Probabilistic Reasoning
- Chapter 3: Transcript of the Trial of Alan A.
- Ruling on the Defence Application for Production
- Trial Proceedings
- Reasons for Judgment
- Chapter 4: Types of Evidence
- Testimonial Evidence
- Real Evidence
- Direct and Circumstantial Evidence
- Chapter 5: The Management of Doubt: Burdens and Standards of Proof
- Burden (or Onus) of Proof
- Standard of Proof
- Chapter 6: Witnesses
- History and Rationale
- Who Can Be a Witness?
- Competence and Compellability
- The Probative Value of Testimony
- The Presentation of Testimonial Evidence
- Reply Evidence
- Chapter 7: Self-Serving Evidence
- Prior Consistent Statements
- Chapter 8: Hearsay
- The Hearsay Rule
- Exceptions to the Rule
- The Principled Approach
- Chapter 9: Opinion Evidence
- Lay Opinion: The Compendious Statement of Facts Exception
- Expert Opinion
Part II: Fairness
- Chapter 10: Privilege, Privacy, and Disclosure
- The Categories of Privilege
- Privilege Against Self-Incrimination
- Chapter 11: Evidence Gathering and Admissibility: The Confession Rule and the Charter
- The Confession Rule
- The Role of the Charter
- Exclusion of Evidence: Section 24(2) of the Charter
- Chapter 12: Character and Similar Fact Evidence
- Character Evidence
- Civil Cases
- Similar Fact Evidence (Discreditable Conduct)
- Chapter 13: Sexual History
- The History of Section 276
- Relevance and Admissibility
Part III: Advocacy
- Chapter 14: Advocacy
The Law of Evidence: Fact Finding, Fairness, and Advocacy
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