Legal Ease, May 11

One of the most misunderstood areas of law is what evidence can be put in front of a court.

There are strict rules limiting the evidence that can be put forward during a trial and those rules often confuse people.

It is true that the law of evidence is complicated—it is a full course in law school and there are many, many text books explaining its details.

That said, the basic principles of evidence are straightforward and are intended to make sure trials are fair and do not last forever.

The first and most important rule in evidence law is that everything put to the court has to be relevant for the case the court has to decide.

For example, in a breach of contract case the fact that the defendant has red hair is irrelevant. But in a criminal case where a witness says “I saw the robber and he had red hair,” the fact the accused has red hair may be very important.

The issue the court has to decide is what determines what is relevant.

The relevancy rule keeps trials as short as reasonably possible and is also a rule of fairness—if something is not relevant to the issue before the court, then bringing it up can only serve to confuse things and that’s not fair to the parties.

The court needs to focus on what matters. Wasting time on irrelevant stuff is not helpful.

Most of the other rules of evidence are related to fairness. So, for example, the hearsay rule says people cannot repeat gossip in court but can only testify to things they actually saw themselves.

While there are exceptions to the hearsay rule, it does make sense that rumours should not be the basis of important court decisions. The idea is that to make good decisions, the court must base its decision on solid facts.

An example may help to show how the rules of evidence, when followed, make trials fair.

One important evidence rule is that witnesses should testify to what they actually saw and not their opinion of what that meant. Deciding what the facts mean is the court’s job.

If a witness sees someone who is stumbling around and unsteady on their feet it may well be that the person is drunk—but it could also mean they are ill. The conclusion, drunk or ill, is something for the court to decide.

Now there is an exception to this rule excluding opinion evidence: if the evidence relates to a very complicated art or science and a court needs an expert to help understand the evidence, then an expert, who is unbiased and neutral, can explain the facts to the court.

That expert rule depends upon the expert being unbiased.

Unfortunately, sometimes experts have been biased and, contrary to the rules of evidence, they have been allowed to testify anyway.

In a famous set of cases in Ontario, a very famous doctor testified against criminal accused, but was not at all impartial. As a result, some people were wrongfully convicted.

In the end, the wrongfully convicted were exonerated but if the bias part of the expert evidence rule had been followed, the problem would never have come up.

The rules of evidence are complex but they make for fair trials.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.