INDG 401 Lecture Notes - Lecture 23: Voir Dire
9 Jun 2018
School
Department
Course
Professor
Criminal Evidence – Feb 9, 2018
Hearsay, contd
Review:
1. Relevant?
2. Hearsay?
3. Necessary & reliable?
4. Is the prejudicial effect more than the probative value
• Today: diff btwn threshold reliability and threshold reliability
o Judge must decide threshold reliability and ultimate reliability; admissibility hat and trial hat
o Usually, when threshold reliability it met (at the limited weighing stage), then ultimate liability is
met
o We must look at all circumatances to know whether threshold liability is et... BUT does’t
mean we go all the way to the end to ultimate reliability... the line is blurry
o Important to know that during the voir dire (at the admissibility hearings), to do all the work to
prove (threshold) reliability at that first stage. Because the more you show (witness
testimonies), then the harder it will be to claim no ultimate reliability at the second stage
(during trial). SO DO THE WORK AT THE VOIR DIRE. Any circumstances you can show that makes
it reliable, give it all, do’t just think you just have to make it past threshold liability
o Kind of questions to determine threshold testimony: was it made
• Prof: has a problem with the Khelawon case b/c she finds there was threshold liability, and if there
was any difficulty it should have been decided at trial, and not at the admissibility stage. Believed
that the hearsay was admissible
• Law of evidence is about ensuring that the evidence presented is insured and protected
• If there is an objection during trial, you have to decide on those objections (open a voir dire) to
settle the admissibility of the statement. So deciding admissibility is not exclusively done during the
pre-trial admissibility hearings
• There is a step even before admissibility hearings: the authorization of charges during the
investigative stage. You won't put your complainant through admissibility hearings if you know you
can't authorize charges. The Crown and the police have the responsibility of making all the
important decisions at this stage – importance of the statement the person is making is under oath
o In Khelawon, it would have been better if all the statements were under oath or videotapes
R v Khelawon (2006)
• Crown never wants to repeat this mistake again
• Facts: Cook found S (resident of retirement home) badly injured in his room. S claims the manager
assaulted him. S made a videotaped statement accusing the manager of assaulted him and
threatened to kill him but the statement was not under oath. Medical records show he was
diagnosed with paranoid psychosis and depression. Psychiatrist testified in voir dire that S could still
communicate evidence and understood his statement to police. 4 other complaints made against
the accused, but two of them died before trial. Trial judge accepted S and D (deceased) videotapes
statements which were hearsay
• Para 27: In the trial judge’s view, the only real hearsay danger raised by the admission of the
statements was the absence of cross-examination but, citing Smith as authority, he concluded that
reliable evidence should not be excluded for this reason alone. The public interest in “the elderly
receiving good care” allowed him “to take video statements together to bolster the complainants’
find more resources at oneclass.com
find more resources at oneclass.com
