6. Enforcing the Law of Evidence

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 20-23

Contenidos

• 6. 1) Enforcement at the Hearing.
• 6. 2) Enforcement on Appeal.
• 6. 2 (a) Where the Party Appealing Did Object.
• 6. 2 (b) Where the Party Appealing Did Not Object.

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6. 1) Enforcement at the Hearing

Enforcement of the rules of evidence begins with the party who wishes to present the evidence. Given the risks that judges or juries can become tainted by hearing inadmissible evidence, it is unethical for lawyers to blurt inadmissible information out before juries, or to present evidence to judges where there is no air of reality to its admissibility. Where the propriety of a question or the admissibility of evidence is contentious, counsel should alert opposing counsel and the judge so that admissibility can be properly determined.⁴⁷Judges and administrative adjudicators have the authority to enforce the laws of evidence even when the party entitled to rely on them does not ask that they be enforced. Judges may therefore do such things as stop leading questioning, or direct witnesses not to offer hearsay evidence, or enforce other rules of proof, even in the absence of objection. Yet judges and administrative adjudicators will not always enforce the rules of evidence where there has been no objection. This is because hearings in which the laws of evidence apply are adversarial, and adversarial proceedings permit tactical choices to be made by the parties. If tactically a party does not want the benefit of a rule of evidence, the adjudicator may respect that decision. For example, a party who can demonstrate inadmissible testimony to be false may choose to sit back and let the opposing witness offer it so that the credibility of the witness can be demonstrated.⁴⁸Since adjudicators may not enforce the rules of evidence on their own motion it is important for lawyers wishing to enjoy the benefits of the rules of evidence to "object." Objection will force the judge or adjudicator to rule. Objections can be taken to the improper form of questions, to the admission of inadmissible evidence, to improper submissions of opposing counsel, or, in a jury trial, to errors in the judge’s charge to the jury.

An objection is made by standing, waiting to be recognized by the court, and concisely stating the objection and arguing why the rule is being breached.⁴⁹In a jury trial, unless the objection is merely to the

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form of a question, the jury will be asked to leave the courtroom before argument is made and the party who is making the objection should be careful not to alert the jury to the content of the contentious evidence.

Unfortunately objections are an imperfect way of enforcing the rules of evidence. Frequently by the time the objection is made the inadmissible information is out or the improper comment has been made. If a jury becomes exposed to inadmissible information in this way, the judge should give a prompt and clear instruction to ignore that evidence entirely.⁵⁰In a judge alone trial even timely and effective objection may not prevent the judge from hearing inadmissible evidence for it may be necessary to hear it before resolving its inadmissibility. The judge, of course, is required to disregard such evidence.

6. 2) Enforcement on Appeal

6. 2 (a) Where the Party Appealing Did Object

If a party has objected and a judge or...