1. The Role of the Law of Evidence

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 1-6

Contenidos

• 1. 1) Rules of Process.
• 1. 2) Rules of Admissibility.
• 1. 3) Rules of Reasoning.
• 1. 4) The Challenge of the Law of Evidence.

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Few cases ultimately turn on disagreements about the law and what it requires. Most cases come down to disputes about facts. Typically, the parties disagree over what happened. As a result, most cases turn on "evidence," which, of course, is the data factual decision-makers (referred to as "triers of fact") use when resolving factual controversies. This is true whether the trier of fact is an adjudicator in an administrative hearing, a judge in a "judge alone" trial, or the jury in a jury trial.

The law of evidence is therefore crucial. It determines what data can be considered, how it can be proved, and the use to which it can be put. If its rules prevent data from being proved or used by the trier of fact, the law of evidence can prevent a litigant from winning. There is no sense having a contract, for example, if the party you are trying to bind denies you have a contract and you cannot prove that you do. You will not enjoy the contract because you do not have the evidence necessary to trigger the law you want to rely upon. The gateway to the application of law is therefore evidence, and the law of evidence is the key that opens that gateway.

We make this point not only to punctuate the importance of the law of evidence. This point also demonstrates that the law of evidence does not exist for its own sake. The law of evidence exists to provide a process for gaining access to the benefits provided by substantive rules. Its role is therefore facilitative, secondary or "adjectival" - it is meant to

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serve the application of the substantive law. To assist in demonstrating this it is helpful to introduce the three kinds of evidentiary rules that serve the substantive law, "rules of process," "rules of admissibility," and "rules of reasoning." The operation of these rules is determined by the presiding judicial official (referred to as the "trier of law"), either the adjudicator in an administrative hearing, or the judge in a "judge alone" or jury trial.

1. 1) Rules of Process

Evidence law’s rules of process serve the substantive law by outlining how evidence is presented to triers of fact. Those rules provide procedures designed to enhance the prospects that witnesses will tell the truth, such as the "promise to tell the truth," the oath, and the affirmation. And they describe how information is to be communicated to the court. The law of evidence, therefore, controls the manner in which questions are posed, the way exhibits are presented, and the conduct of in-court demonstrations.

1. 2) Rules of Admissibility

Where the law of evidence plays its most controversial role is in determining "admissibility" - in identifying what information triers of fact are allowed to consider. Ideally, the rules of admissibility should be generous. Given its role in serving the application of the substantive law, the law of evidence should ideally enable triers of fact to have orderly access to any information that could help them make an accurate determination about whether the substantive law applies.

This basic "principle of access to evidence" is well recognized. In R. v. Jarvis the Supreme Court of Canada elevated it to a constitutional level in criminal cases, referring to the "principle of fundamental justice that relevant evidence should be available to the [trier of fact] in the search for the truth."¹This principle is not, however, pursued single-mindedly. The rules...