Relevance and admissibility | Lanbuk on the Law of Evidence

In simple terms

Evidence is received if it is relevant and admissible. Relevance is a matter of logic. Admissibility is a matter of law. A fact can be relevant and still be kept out.

Relevance is not a free-standing list of cases. It is the condition that runs through every other chapter. A fact is relevant if it makes a fact in issue more likely or less likely. A fact in issue is one of the ingredients of the claim or the charge, or a fact which a says must be proved.

Admissibility is the second question. The law keeps some relevant evidence out. The exclusionary rules are , privilege, , and where the prejudice outweighs the proof. Opinion is kept out for the reasons in that chapter. Evidence obtained illegally is not, in general, one of the exclusions. Sang adds the two discretions: an unfairly obtained admission, and evidence that is more prejudicial than probative.

Hearsay is the rule that a statement made out of court is not admitted to prove the truth of what it asserts. It is an exclusionary rule, in particular when a previous consistent statement, a complaint, or a statement used only to discredit a , is not evidence of the facts stated. There is no separate chapter on hearsay.

The order of argument in a problem is therefore short. Is the item relevant to a fact in issue? If it is, does an exclusionary rule keep it out? If a discretion remains, is this the rare case, Payne or an unfair confession, where the discretion is used? Relevance without admissibility is not enough. Admissibility without relevance is useless.

Words and Latin in this note

Public interest immunity: The rule that material is withheld where disclosure would harm the public interest, for example national security or the identity of an informer. On these notes, a minister's certificate can be conclusive. Open the note.
Similar fact evidence: Evidence of misconduct other than the offence charged. It is not admitted merely to show a criminal disposition. It is admitted if its probative force is strong enough to outweigh the prejudice. Open the note.
Hostile witness: A witness who is unwilling to tell the truth, as distinct from one who has merely forgotten. With the judge's leave he may be asked leading questions and contradicted by his earlier statement. That statement goes to credit, not to the truth of what it says. Open the note.
Rule of law: The principle that government must act under and within the law, that everyone is equal before it, and that power is not used arbitrarily. Dicey gave it three meanings. Open the note.
Hearsay: A statement made out of court, offered to prove that what it says is true. It is an exclusionary rule. This course mentions it. It does not teach it as a separate chapter.

Memory map

Relevance and admissibility

Key points

Relevant evidence is received unless a rule of…
Hearsay, privilege, public interest and…
Hearsay is mentioned where it matters

Cases

R v Sang

Key terms

Hearsay
Hostile witness
Public interest immunity
Similar fact evidence

Take-home points

Relevant evidence is received unless a rule of admissibility keeps it out.
Hearsay, privilege, public interest and prejudicial similar-fact evidence are the exclusions. Illegal means of obtaining evidence are not.
Hearsay is mentioned where it matters. It does not teach it as its own chapter.