Canadian Criminal Evidence/Real Evidence

Introduction
Real evidence consists of all tangible evidence, physical objects such as, tape recordings, computer printouts or photographs. Real evidence, as all other evidence, must first be relevant. Secondly, it must be authentic.

Authentication is often proven by having witnesses identify the object and verify its authenticity. The leading case on authentication of real evidence is in R. v. Parsons. The case hinged on a wiretap whose lawfulness was in question. The issue was handled in a voir dire. However, on appeal the Court said that an issue for the trier of fact to determine not the trial judge. The judge must only determine if the evidence has met the minimum statutory requirement.

There is no fixed formula for submitting real evidence, however, it is recommended that a procedure for submitting evidence be followed such as:
 * 1) call a witness with personal knowledge of the object;
 * 2) ask the witness to describe the object before showing it to the witness;
 * 3) allow the witness to examine and identify it as genuine; and
 * 4) ask that the object be entered as an exhibit, with the appropriate stamp applied by the clerk.

Demonstrative Evidence
Demonstrative evidence includes charts, models, and experiments. They are used as tools to assist the judge in their understanding the of case. They are not "real evidence" is the strictest meaning as they are not objects that form part of the incident.

With demonstrative evidence, there is no need for the formal authentication. Instead, the only standard is that of whether the evidence is relevant and whether it is an accurate representation of what it is supposed to depict. The primary consideration of the court is whether the item can assist the court or whether it warps or distorts the fact-finding process.

Experiments
Experimental evidence is admissible as demonstrative evidence.

Where the experimental evidence is relevant and materials it will tend to be admitted, unless the discretionary exclusion rule is applied.

If the evidence requires inferences using special knowledge, the adducing party will need to admit it as expert evidence.

The courts generally are very cautious about allowing demonstrative evidence in the form of in-court experiments as the environment of a court does not allow for a good duplication of the events at issue. This includes video re-enactment performed by officers.

As a general rule, the relevancy and admissibility will depend on the degree of accuracy the recreation is to the original event.

Experiments in more controlled situations are more likely to be admitted. A ballistics expert who takes a firearm used in an alleged shooting can be permitted to perform tests on the weapon to determine its accuracy.

Anytime that experiments are admitted before a jury, limiting instructions should be given.

Views
A “view” is where the trier-of-fact, be it judge or jury, is permitted to attend the location of the event at issue in trial to better understand the evidence. The view may be requested by either party or on the judge’s motion under s. 652:

The order is made where it “is in the interest of justice”. This requires that the viewing of the location add something to the evidence. While the viewing itself does not amount to evidence, it is intended to be an aid that helps facilitate an understanding of the evidence.

Consequently, the view can be taken even after the close of evidence.

For a detailed review of law, see R. v. Polimac, 2006 CanLII 40110 (ON SC)

Photographs
In order to admit photographic evidence in the Court, the party submitting the evidence must establish that:
 * they accurately and truly represent the facts,
 * are fairly presented and without any intent to mislead and
 * are verified on oath by a person capable of doing so.

The person testifying to the photographs can be:
 * the photographer
 * a person present when the photograph was taken
 * a person qualified to state that the representation is accurate, or
 * an expert witness

The age of a person in a photograph is a question of fact for the trier-of-fact, and does not need an expert.

Police sketches based on eye-witness descriptions will be admissible where the sketch artist is available for cross-examination.

Video
The requirements for admitting video evidence is the same as those of photos. However, in the case of video tape there is the added danger of potential of tape alterations (editing, slow-motion replay, etc.), so the judge must be even more cautious when admitting video evidence.

As long as the video recording is of sufficient quality, the trier-of-fact can identify the accused without corroborating evidence.

The video footage evidence is considered real evidence and so cannot be said to "hearsay".

Video re-enactments
Courts should be cautious when dealing with video reenactments where the accused is not participating. It may have the tenancy to overly influence the jury. Nevertheless, the admissibility turns on whether the prejudicial effect outweighs the probative value.

Audio
Audio recording are to be treated in the same manner as witness testimony, but with the added weight provided that it is a more accurate record of past conversations. The use of private recorded coversations in a criminal trial usually requires a voir dire to be held.

A police officer can give evidence of the accused's natural voice at time arrest to establish voice identification as long as their is no trickery used to induce the accused to speak.