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Chapter 7.2 – Rules of Evidence

Chapter 7.2 – Rules of Evidence. Key Knowledge – The Adversary System. Major Features of the adversary system of trial. Strict rules of evidence exist.

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Chapter 7.2 – Rules of Evidence

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  1. Chapter 7.2 – Rules of Evidence Key Knowledge – The Adversary System

  2. Major Features of the adversary system of trial

  3. Strict rules of evidence exist • Under the adversary system of trial, parties must present their evidence and conduct their cases in accordance with very strict rules of evidence and procedure. • only relevant, reliable and legally obtained evidence can be considered by the court. • Strict procedural rules govern the sequence and manner in which a party must present their case to the court • The strict rules of evidence and procedure are enforced to ensure that parties are treated consistently and each has an equal opportunity to present their case.

  4. What is evidence • Evidence refers to items such as statements, testimonies (evidence given under oath or affirmation), objects (for example, a weapon, photos or blood samples), or records (for example, an email, log book or medical records) that assist in establishing the facts of the case.

  5. Hearsay Evidence • Hearsay evidence refers to evidence that is given by a witness who did not experience an event firsthand • The evidence is relying on another person's account of the event. • Generally hearsay evidence is not admissible in court because the reliability of the evidence given cannot be tested. • http://evidencepbl12.blogspot.com.au/2012/12/hearsay.html

  6. Irrelevant evidence • Irrelevant evidence refers to evidence that is not directly related to the facts of the case and is not admissible in court. • Evidence that aims to establish the bad character of the accused is generally inadmissible because it may influence and bias the jury (when present) and does not assist in establishing the facts of the case • http://www.google.com.au/search?safe=active&q=hearsay+evidence&bav=on.2,or.r_qf.&bvm=bv.49478099,d.dGI,pv.xjs.s.en_US.c75bKy5EQ0A.O&biw=1366&bih=611&um=1&ie=UTF-8&hl=en&tbm=isch&source=og&sa=N&tab=wi&ei=nW7sUZ7FDMWSkwXU4ICgDw#um=1&safe=active&hl=en&tbm=isch&sa=1&q=irrelevant+evidence&oq=irrelevant+evidence&gs_l=img.3..0i24l3.13504.16362.0.16607.10.10.0.0.0.0.258.1521.4j1j5.10.0....0...1c.1.21.img.2UgovCX0AQ4&bav=on.2,or.r_qf.&bvm=bv.49478099,d.dGI&fp=a102f47e5a000101&biw=1366&bih=611&facrc=_&imgdii=_&imgrc=7BqwBngW16TyrM%3A%3Bbs471VeUNKo3JM%3Bhttp%253A%252F%252Fwww.cvsa.asn.au%252Fjury_disregard.JPG%3Bhttp%253A%252F%252Fwww.cvsa.asn.au%252Fexclusionaryevidence.html%3B768%3B480

  7. Previous Convictions/Illegally obtained evidence • Previous Convictions Previous (prior) convictions refer to the past criminal record of the accused and are generally inadmissible in court because they may prejudice the trial. Evidence of bad character Exception of Propensity evidence – Course of Conduct/Unique signature • Illegally obtained evidence Illegally obtained evidence refers to evidence that has not been obtained in accordance with the law and is generally inadmissible. http://www.theage.com.au/victoria/police-admit-to-unsworn-affidavits-on-mokbel-20111219-1p2jm.html

  8. Opinion Evidence/Privileged Information • Opinion Evidence Witnesses are generally not permitted to express opinions on matters that they did not directly observe, unless they are considered to be experts in a particular area or field. According to the Evidence Act, opinion evidence is only admissible if ‘a person has specialised knowledge based on the person's training, study or experience’ • Privileged Information Privileged information refers to evidence obtained in communications between a client and their legal representative, or a priest and confessor, and is generally inadmissible to protect confidentially between these parties.

  9. The rules of procedure • All trials take place under the adversary system • Trials must follow certain procedures and processes to ensure the trial is fair and parties have an equal opportunity to present their case. • For example, the party initiating the case (the prosecution and plaintiff, in criminal and civil cases respectively) must present their case first as they hold the burden of proof, and both parties must be given the opportunity to cross-examine each other's witnesses and summarise the main issues of their case. Is following the procedures of the law any less important to a surgeon not following procedures?? IS the outcome the same?

  10. Reliance on verbal evidence • Verbal evidence is preferred over written evidence as the reliability of a witness can be tested under cross-examination. Under the adversary system witnesses are also required to respond to questions posed by legal representatives, rather than presenting evidence in their own words, to help ensure their testimony is relevant to the case

  11. Your Turn • Questions 1 – 4 page 268 of text

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