Canadian Criminal Evidence/Real evidence

Real evidence consists of all tangible evidence, physical objects such as , tape recordings, computer printouts or photographs. Real evidence, as all other evidence, must first be relevant. Secondly, it must be authentic.

Authentication is often proven by having witnesses identify the object and verify its authenticity. The leading case on authentication of real evidence is in R. v. Parsons. The case hinged on a wiretap whose lawfulness was in question. The issue was handled in a voir dire. However, on appeal the Court said that an issue for the trier of fact to determine not the trial judge. The judge must only determine if the evidence has met the minimum statutory requirement.

"Evidence: Principles and Problems" by Delisle, et al. outlines the procedure for submitting evidence:

1. call a witness with personal knowledge of the object,
2. ask the witness to describe ethe object before showing it to the witnes,
3. allow the witness to examine and identify it as genuinem and
4. ask that the object be entered as an exhibit, with the appropriate stamp applied by the clerk.

Views

A view is when the jury must leave the court room to view evidence. This is usually in situations where a scene of an offence must be examined in person to get a proper perspective of the situation.

In a criminal trial the judge may elect to take a view under section 652(1) of the Criminal code. While in a civil trial, the provincial civil procedure rules provide a similar option.

Photographs

In order to admit photographic evidence in the Court, the party submitting the evidence must establish that:

• they accurately and truly represent the facts,
• are fairly presented and without any intent to mislead and
• are verified on oath by a person capable of doing so.

The person testifying to the photographs can be:

• the photographer
• a person present when the photograph was taken
• a person qualified to state that the representation is accurate, or
• an expert witness

Video

The requirements for admitting video evidence is the same as those of photos. However, in the case of video tape there is the added danger of potential of tape alterations (editing, slow-motion replay, etc.), so the judge must be even more cautious when admitting vidoe evidence.

In R. v. Nikolovski the Supreme Court held that a video tape alone, without corroborating evidence, is sufficient to allow a trier of fact to identify the accused.

Video re-enactments

Courts should be cautious when dealing with video reenactments where the accused is not participating. It may have the tenancy to overly influence the jury. Nevertheless, the admissibility turns on wehther the prejudicial effect outweighs the probative value.

Video statements of Victim

There is an exception to the hearsay rule that allows the admission of prior video taped statements of witnesses under the age of 18:

Evidence of victim or witness under 18
715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

Order prohibiting use
(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).

R.S., 1985, c. 19 (3rd Supp.), s. 16; 1997, c. 16, s. 7; 2005, c. 32, s. 23.

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Audio

Audio recording are to be treated in the same manner as witness testimony, but with the added weight provided that it is a more accurate record of past conversations. The use of private recorded coversations in a criminal trial usually requires a voir dire to be held.