Evidence exam skeleton notes - Distinction

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Skeleton - ready for adaption and use for final exam Table of Contents Is this evidence relevant? 3 Does probative value outweigh the danger of unfair prejudice? 3 Does the hearsay rule apply? 5 Is there a previous representation? 5 Is it a hearsay? 5 Does an exception to the hearsay rule apply? 5 Does it have another admissible use? 5 Is it about one’s health/mind/knowledge? 5 Is it firsthand or more remote hearsay? 6 Is the witness unavailable or impractical to call? 6 Unfair prejudice? 8 Does the opinion rule apply? 9 Is it relevant in other ways? (s78A) 9 Is it aboriginal? 9 Is it a lay opinion? 9 Is it common knowledge or a fact? 9 Is it an opinion based on specialised knowledge? 9 Is the expert a police officer? 10 Unfair prejudice? 10 Does the admission rule apply? 11 Is it firsthand hearsay? 11 Is it a criminal proceeding? 11 Is it second-hand or more remote hearsay? 11 Unfair Prejudice? 12 Is the evidence improperly obtained? (S138-9) 12 Police coercion? 13 Misunderstood admission? 13 Intoxication/capacity issue? 13 Does the tendency or coincidence rule apply? 14 Does it have another purpose? 14 Is there a failure to act? 14 Is it tendency evidence? (If not tendency, then discuss coincidence) 14 Assess the probative value of the evidence 14 Is it coincidence evidence? 16 Unfair prejudice? 16 Civil proceeding 16 Criminal proceeding 16 Does the credibility rule apply? 18 Is it credibility evidence? 18 Can it be excluded by the credibility rule? 18 Exceptions to credibility rule 18 s103: Primary exception, cross examine about credibility 18 s106: Exception, rebutting denials 18 s108: Exception, re-establishing credibility 19 Leave (When is a prior consistent statement more important to meet the threshold in s192(2)(c)?) 19 s108C: Exception, expert witnesses 20 Unfair prejudice 20 Is it character evidence? (Only for criminal proceedings – s109) 21 Identification evidence (only applies in criminal proceedings - s113) 22 Is it identification evidence? 22 S114 Exclusion of visual identification evidence 22 How good do the parades have to be? 23 S115 Exclusion of evidence of identification by pictures 23 How good do photo IDs have to be? 24 S116 Directions to jury 24 Unfair prejudice 24 S137 24 S138 Exclusion of improperly or illegally obtained evidence 24 Applying IMM in eyewitness evidence 25 Can the judge exercise discretion to exclude the evidence? 26 Unfair Prejudice 26