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Regarding the LEGAL TEST for evidence re: read SHARRON V BERRY, thats one of the landmark cases about this, can be read here:
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Also check out, I think its FEDERAL RULE 403, that talks about this, if youre interested.
Evidence CourseworkEXCLUSION OF
PREJUDICIAL EVIDENCE
At common law,
judges have discretion to exclude evidence which is admissible. In Noor Mohammed
v R , it was held that it would be unjust to admit evidence of a character
gravely prejudicial to the accused even though there may be some tenuous ground
for holding it technically admissible and the decision must be left to the
discretion and the sense of fairness of the judge. In R v Sang , Lord Diplock
gave an important obiter that the trial judge has a discretion to exclude the
evidence where the prejudicial effect of evidence outweighs its probative value
if its admission would result in an unfair trial. Another category of evidence
that judges can also exercise discretion to exclude is those that are illegally
or improperly obtained. But as far as this question is concerned, I will only
focus on the exclusion of prejudicial evidence in the rest of the
article.
The discretion
to exclude evidence unfairly prejudicial to the defence owes its existence
partly to the judicial mistrust of jurors. Jurors may misuse the evidence in the
sense that false inferences are drawn from the evidence or putting more weight
on evidence than it deserves. When exercising the discretion, judges are
required to balance the prejudicial effect of evidence against its probative
value. But we must bear in mind that evidence which is prejudicial only in the
sense that it incriminates the accused is not prejudicial for the purposes of
the discretion.
So how little
probative value or how great prejudicial effect on the accused of a piece of
evidence has can the judges exercise their discretion? In R v Christie , it was
held that evidence should not be given if 'seriously prejudicial and of little
value in its direct bearing of the case'. And in Noor Mohammed v R mentioned
above, the evidence is of 'trifling weight' or 'gravely prejudicial character'
though 'technically admissible'. Also in DPP v Boardman , Lord Salmon referred
to the exclusion of evidence of 'minimal value'. Later on, a modified test
emerged and evidence of considerable probative value could also be excluded
provided that the prejudicial effect is substantial.
The discretion
to exclude evidence more prejudicial than probative can be applied to any type
of admissible evidence. In the following, I will try to explain how the
discretion operates in several different kinds of evidence.
More here also:
[You must be registered and logged in to see this link.]
Keep in mind that Probative Value vs Prejudicial Effect rulings are one of the most common things challenged in appeals cases.
AE probably knows more about this off the top of his head than I do, keep in mind that I have only actually tried a few cases in my career as most of my legal work involves writing motions, developing case strategy and studying juries and consulting on jury selections (my personal specialty and what I am most sought out for). Because I have never been able to settle down and have my own legal practice due to us moving around a lot since I got out of law school I have spent most of my time doing free lance legal writing, case research, writing motions and briefs and consultation for other firms who request my services. I hope to start my own practice once we settle down in the future but for now I do well with what I am doing and the extent of my trial work at this time is mostly in DUI defense work.
[You must be registered and logged in to see this link.]
Also check out, I think its FEDERAL RULE 403, that talks about this, if youre interested.
Evidence CourseworkEXCLUSION OF
PREJUDICIAL EVIDENCE
At common law,
judges have discretion to exclude evidence which is admissible. In Noor Mohammed
v R , it was held that it would be unjust to admit evidence of a character
gravely prejudicial to the accused even though there may be some tenuous ground
for holding it technically admissible and the decision must be left to the
discretion and the sense of fairness of the judge. In R v Sang , Lord Diplock
gave an important obiter that the trial judge has a discretion to exclude the
evidence where the prejudicial effect of evidence outweighs its probative value
if its admission would result in an unfair trial. Another category of evidence
that judges can also exercise discretion to exclude is those that are illegally
or improperly obtained. But as far as this question is concerned, I will only
focus on the exclusion of prejudicial evidence in the rest of the
article.
The discretion
to exclude evidence unfairly prejudicial to the defence owes its existence
partly to the judicial mistrust of jurors. Jurors may misuse the evidence in the
sense that false inferences are drawn from the evidence or putting more weight
on evidence than it deserves. When exercising the discretion, judges are
required to balance the prejudicial effect of evidence against its probative
value. But we must bear in mind that evidence which is prejudicial only in the
sense that it incriminates the accused is not prejudicial for the purposes of
the discretion.
So how little
probative value or how great prejudicial effect on the accused of a piece of
evidence has can the judges exercise their discretion? In R v Christie , it was
held that evidence should not be given if 'seriously prejudicial and of little
value in its direct bearing of the case'. And in Noor Mohammed v R mentioned
above, the evidence is of 'trifling weight' or 'gravely prejudicial character'
though 'technically admissible'. Also in DPP v Boardman , Lord Salmon referred
to the exclusion of evidence of 'minimal value'. Later on, a modified test
emerged and evidence of considerable probative value could also be excluded
provided that the prejudicial effect is substantial.
The discretion
to exclude evidence more prejudicial than probative can be applied to any type
of admissible evidence. In the following, I will try to explain how the
discretion operates in several different kinds of evidence.
More here also:
[You must be registered and logged in to see this link.]
Keep in mind that Probative Value vs Prejudicial Effect rulings are one of the most common things challenged in appeals cases.
AE probably knows more about this off the top of his head than I do, keep in mind that I have only actually tried a few cases in my career as most of my legal work involves writing motions, developing case strategy and studying juries and consulting on jury selections (my personal specialty and what I am most sought out for). Because I have never been able to settle down and have my own legal practice due to us moving around a lot since I got out of law school I have spent most of my time doing free lance legal writing, case research, writing motions and briefs and consultation for other firms who request my services. I hope to start my own practice once we settle down in the future but for now I do well with what I am doing and the extent of my trial work at this time is mostly in DUI defense work.
Last edited by Paximus on Sun Mar 14, 2010 9:25 pm; edited 2 times in total
