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Evidence - Subjects Table of Contents (F-M)
FABRICATION
Evidence Cases - Fabrication
FOREIGN AND INTERNATIONAL LAW
It will seem counter-intuitive but foreign law generally has to be 'proven' before your local court or tribunal, in essentially the same fashion as other facts with expert witnesses.
Evidence Cases - Foreign and International Law
FOREIGN JUDGMENTS
Evidence Act (Ont), s.38. Foreign judgments, etc., how proved
There is a separate related topic Foreign Judgments (Enforcement).
GATE-KEEPING
'Gate-keeping', as used here in this evidence context, is the discretionary balancing by a judge/adjudicator between the probative and the prejudicial aspects of a piece of evidence (see the sub-topics 'Probative' and 'Prejudice', below], in order to determine whether to admit it or not. The term is also used in administrative law (which see) when a tribunal procedurally bars or hinders an applicant from advancing their claim - something which is not always assumed to be a bad thing.
Evidence Cases - Gate-Keeping (Judicial and Adjudicator)
HAND-WRITING
Evidence Cases - Hand-Writing
HEARSAY
COMMENT
Hearsay can be tricky, but my best current definition is that it deals with: the relative truth-value of consecutive fact-affirming statements made by different people.
Although 'hearsay' has much more attention paid to it in the legal situation, it is more accurately characterized as a general feature of truth-determination and human communications - perhaps neglected in the non-legal, but still very important, context.
Simply put, the more 'distant' (in terms of the number of successive people engaged in repeating the affirmation) that the statement is from it's original statement, the more suspect is it's 'truth-value'. That's not to say that the 'original declarant' - and all successive 'repeaters' - are always telling the truth, but - even if they are - hearsay doctrine holds that the respective truth-value deteriorates with each passing telling.
To explain it in the legal context, imagine that you were witness to a car accident and required to testify in court. If the examining lawyer asks you if you saw a particular car on a particular street at a particular time - and you did, and you say so - there are no hearsay concerns with that statement. That is a statement of your direct, sensory evidence made in court.
Now slightly change the situation so that you were not in court, but you gave the same statement to a police officer in an interview. While the prosecution has tried to arrange for your in-person testimony at trial, they have been unsuccessful and the interviewing police officer attends wishing to testify as to what you told them in the interview. Under the basic hearsay rule that statement is inadmissible as being first-level hearsay (the 'hearsay exclusion'). Two main reasons why hearsay is inadmissible are the concern over accuracy (from the police officer the statement is second-hand), and the trial fairness concern over cross-examination (which can only be useful when the original observer is being cross-examined).
Hearsay can take double (or even triple or more) forms. For instance, say in the above example the officer who interviewed you was unavailable and another officer involved in the investigation was testifying. All they have in the file are the first officer's notes of your interview, reflecting your statement. That's 'double-hearsay' - ie. 'they said that they said', with even more policy reasons to exclude it's admission of evidence.
An essential part of modern hearsay law is that written statements always reflect at least one level of hearsay - ie. the writing is viewed as the equivalent of the document-adducing witness saying: 'here, this author said this'.
Another aspect of the hearsay exclusion is that it only operates to exclude subsequent statements when they are being tendered for their truth-value. If you want to know what the secondary repeater said for another reason (eg. 'fraud' or to explain their immediately subsequent actions) it can be admitted without a hearsay objection.
Lastly, there are many exceptions to the main legal hearsay exclusion. The vast majority of court cases are regarding such 'exceptions to the exclusion'.
Overall, hearsay is concerned about the 'degree of removal' of the communication from the original sensory experience of it. Generally, the more degrees of removal from the original declaration, the more suspect is the truth of statement.
CASES AND STATUTES
General
Evidence Cases - Hearsay - Basics (+)
Evidence Cases - Hearsay - No Truth Use
Principled Exception
In the history of hearsay law, the 'principled exception' is relatively new - but it is much used.
Evidence Cases - Hearsay - Principled Exception (Necessity and Reliability) (+)
Specific Exceptions
Evidence Cases - Hearsay - State of Mind Exception
Evidence Cases - Hearsay - Dying Declaration Exception
Evidence Cases - Hearsay - Expressive Conduct Exception
Evidence Cases - Hearsay - Statement Against Penal Interest Exception
Evidence Cases - Hearsay - Judicial Records Exception
Evidence Cases - Hearsay - Past Recollection Recorded Exception
Evidence Cases - Hearsay - Co-conspirators Exception (+)
Evidence Cases - Hearsay - Documents in Possession Exception
Evidence Cases - Hearsay - Party Admission Exception
Evidence Cases - Hearsay - Res Gestae Exception
Evidence Cases - Hearsay - Public Documents Exception
Evidence Cases - Hearsay - Spontaneous Utterance Exception
Evidence Cases - Hearsay - Consent Exception
Appeals
Evidence Cases - Hearsay - Standard of Review (SOR)
HYPOTHETICALS
There has long been a temptation amongst lawyers (and even judges) to consider the implications of 'changing the facts' slightly to test a law. This is not to say that they lie or fabricate the events, just to argue that such 'hypotheticals' illustrate the implications of applicable law in a more revealing light. Generally though the use of hypotheticals is frowned upon - ie. it's 'just the facts, ma'am' [something which Joe Friday did not apparently say on Dragnet].
However, Charter evidence law has recently evolved the use of such hypotheticals, see:
Charter - Evidence - 'Reasonably Foreseeable Scenarios' (formerly 'Hypotheticals').
Evidence Cases - Hypotheticals
IDENTIFICATION
Most 'identification' evidence law is, unsurprisingly, related to eyewitness testimony. There is at least one 'ear-witness' case though [R. v. MacLaughlin (Ont CA, 2025)], and one can imagine other identification configurations.
Evidence Cases - Identification (+)
Evidence Cases - Recognition Evidence
INADVERTENT TAINTING
Evidence Cases - Inadvertent Tainting
INCONSISTENCIES
Evidence Cases - Inconsistencies
INFERENCES
'Inferences' are conclusions that may be inferred from known facts. There is a related sub-topic of 'adverse inferences' (see above) which concerns negative presumptions that may be made when a party fails to call evidence that is logically available.
Evidence Cases - Inferences
INHERENTLY INCAPABLE OF PROOF
Evidence Cases - Inherently Incapable of Proof
INTERNET
Evidence Cases - Internet
INTRINSIC
'Intrinsic' evidence refers to inherent, natural aspects of a subject. It's corollary is 'extrinsic' evidence, which refers to things that are external or separate from the subject (which see, above).
Evidence Cases - Intrinsic
JOURNALISTIC SOURCES
Evidence Cases - Journalistic Sources [CEA 39.1]
JUDICIAL NOTICE
Evidence Cases - Judicial Notice (+)
JUDICIAL SIGNATURES
Evidence Act (Ont), s.36. Judicial notice to be taken of signatures of judges, etc.
LAWYER'S FILE
Evidence Cases - Lawyer's File
LETTERS ROGATORY
'Letters rogatory' are requests by foreign courts to a local court for assistance with various court procedures and for the examination of witnesses. This type of assistance is an aspect of the principle of inter-court 'comity'.
Evidence Cases - International Letters of Request (Letters Rogatory)
Evidence Act (Ont), s.60. Evidence for foreign tribunals
LITIGATION DOCUMENTS
Evidence Cases - Litigation Documents
LOST EVIDENCE
Evidence Cases - Lost Evidence
MATERIALITY
'Materiality' in this sense means important, and can be contrasted with 'minor' or 'insubstantial'. In the legal context, it means evidence on which a key element of the case turns.
Evidence Cases - Materiality
MEDIA EVIDENCE
Evidence Cases - Media Evidence
MEDIATION-ADR
SPPA 4.9(1-2) - Mediators, etc., not compellable [#ADMIN]
MEDICAL REPORTS
Evidence Cases - Medical - General
Evidence Cases - Medical Reports [EA s.52 (Ont)]
Evidence Act (Ont), s.52 Reports and Evidence of Practitioners
Courts of Justice Act, s.105 (Ont) Physical or mental examination [#COURTS]
MILITARY RECORDS
Evidence Act (Ont), s.51. Military records
MOTIVE
Evidence Cases - Motive
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