5. Putting the Rules of Evidence in a Context

AuthorDavid M. Paciocco - Lee Stuesser
ProfessionJustice of the Ontario Court of Justice - Professor of Law, Bond University
Pages15-19

Page 15

It is helpful in understanding the operation of the laws of evidence to put them in their context by describing the process of the hearing within which they operate. The processes vary depending on whether the hearing is criminal, civil, or administrative. For illustrative purposes we have chosen to describe the model of a criminal trial. Before doing so the voir dire or "trial within a trial" should be described since voir dires are held in both civil and criminal cases and are an important vehicle for resolving controversies on evidentiary issues.

5. 1) The Voir Dire

In the conduct of a hearing, it often becomes necessary to settle subsidiary legal disputes such as whether particular evidence is admissible. Some of those legal disputes will turn on questions of fact. For example, the Crown in a criminal trial may wish to prove a confession made by the accused. As a matter of law that confession will be admissible only if the Crown can prove that, as a matter of fact, it was voluntarily made. Absent the agreement by the parties that the confession was voluntary, an evidentiary hearing will therefore have to be held. Hearings of this kind - "trials within a trial" conducted to settle discrete legal issues - are called voir dires.

Page 16

Technically, the voir dire is a separate hearing. This is in part because it may be necessary in resolving the voir dire issue to hear evidence that is not admissible at the trial itself. Evidence heard during the voir dire is therefore not part of the general trial record and cannot be relied upon in coming to an ultimate decision, unless the parties agree. In the confession example, if the confession was not proved to be voluntary there would be no such agreement. The criminal trial would simply commence again after the failed voir dire application as if no confession had ever been mentioned. If the confession was proved to have been voluntary, however, the parties could agree to make the voir dire proceedings part of the trial record so as not to have to repeat the same evidence again. Failing that agreement, the Crown would have to prove that confession again at the trial and a good deal of the evidence would be repeated.

In judge alone trials it is common for the parties to agree to have the voir dire evidence admitted as part of the main trial record. In a jury trial an agreement to admit voir dire evidence in this way is not generally possible. This is because, ordinarily, the jury will be removed from the courtroom during voir dires. Jurors are removed both to protect them from becoming tainted by inadmissible evidence and because voir dires are about questions of law for the presiding judge - the trier of law - to resolve. These legal issues do not ordinarily concern the jury.

In judge alone trials the judge is both the trier of law responsible for conducting the voir dire, and the trier of fact responsible for ultimately deciding the case. It is obviously not possible to insulate the judge from voir dire evidence. Unless it becomes part of the trial record on consent, the judge is legally required to disregard evidence presented during the voir dire when deciding the case.

5. 2) The Criminal Trial Process - An Illustration

The criminal trial begins when the accused is placed in the charge of the trial court by pleading...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT