Problematic Procedural Issues

AuthorAlan D. Gold
Chapter 10
Problematic Procedural Issues
    of agreement by the opposing party, an expert witness
must rst be qualied as such upon a oir dire regarding qualications.
In some cases it may be possible to rule on the admissibility of the proposed
evidence on the b asis of counsel’s submi ssions alone. However it may at ti mes
prove necessary to hold a oir dire in order to properly consider all relevant
factors. Where the trial is before a jur y and the questions of admissibility can-
not be clearly determined in a summa ry fashion, it may indeed be prudent to
scrutinize the evidence during the course of a oir dire before admitting it.
While in some cases t he ruling can be made early in the proceedi ngs, in other
cases, it may be only later in the tria l that the value of the proposed evidence
can be properly assessed.
Whether the oir dire is done in the absence or presence of the jury will
depend upon the nature of the proposed evidence and expert and any prejudice
that might be occasioned to the adducing party by an unsuccessfu l application.
It is generally done in the presence of the jury when only qualications are in
issue since the jury is entitled to hear such evidence in any event as relevant to its
assessment of the weight of the evidence. If the witness is qualied as an expert,
the evidence heard on the oir dire, both in chief and cross-examination, will
R. v. A.K. an d N.K. (),  C.R . (th)  (Ont. C.A.).

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