The Probative Value of Evidence
Each piece of relevant evidence will be considered based on its “probative value”, which is the weight
or persuasive value that the court assigns to that particular piece of evidence when considering its value
towards proving a point of fact in question for the case being heard. This probative value of evidence
goes towards the judge, or the judge and jury, reaching their decision of proof beyond a reasonable
doubt in criminal court, or proof within a balance of probabilities in civil court.
Eye Witness Evidence
A competent, compellable, independent, eye witness with excellent physical and mental capabilities,
who has seen the criminal event take place and can recount the facts will generally satisfy the court and
provide evidence that has high probative value. In assessing the probative value of witness evidence,
the court will consider several factors that we will discuss in more detail in our chapter on witness
management. These include:
• The witness type as either eye witness or corroborative witness
• The witness competency to testify
• The witness compellability to testify
• The level of witness independence from the event
• The witness credibility based on assessment of physical limitations
Physical Evidence
The court will also generally attribute a high probative value to physical exhibits. The court likes
physical evidence because they are items the court can see and examine to interpret the facts in issue
for proof beyond a reasonable doubt. Physical evidence can include just about anything, such as
weapons, fingerprints, shoe prints, tire marks, tool impression, hair, fiber, or body fluids. These kinds
of physical exhibits of evidence can be examined and analyzed by experts who can provide the court
with expert opinions that connect the item of evidence to a person, place, or the criminal event. This
allows the court to consider circumstantial connections of the accused to the crime scene or the accused
to the victim. For example, in the case where the fingerprints of a suspect are found at a crime scene,
and a DNA match of a murder victim’s blood is found on that suspect’s clothing, forensic connections
could be made and, in the absence of an explanation, the court would likely find this physical evidence
to be relevant and compelling evidence with high probative value.
Relevant Evidence
Relevant evidence speaks to an issue before court in relation to the charge being heard. Relevant
evidence includes both direct evidence and indirect circumstantial evidence. For either direct or
indirect circumstantial evidence to be considered relevant to the court, it must relate to the
elements of the offence that need to be proven. If the evidence does not relate to proving the
place, time, identity of the accused, or criminal acts within the offence itself, the evidence will
not be considered relevant to the charge. The prosecution may present evidence in the form of a
physical exhibit that the court can see and examine to consider, or they may present evidence in
the form of witness testimony, in which case the witness is telling the court what they perceived
within the limits of their senses.
Direct Evidence
Direct evidence is evidence that will prove the point in fact without interpretation of
circumstances. (Justice Department Canada, 2017). It is any evidence that can show the court
that something occurred without the need for the judge to make inferences or assumptions to
reach a conclusion. An eyewitness who saw the accused shoot a victim would be able to provide
direct evidence. Similarly, a security camera showing the accused committing a crime or a
statement of confession from the accused admitting to the crime could also be considered direct
evidence. Direct evidence should not be confused with the concept of direct examination, which
is the initial examination and questioning of a witness at trial by the party who called that
witness. And, although each witness who provides evidence could, in theory, be providing direct
testimony of their own knowledge and experiences, that evidence is often not direct evidence of
the offence itself.
Circumstantial Evidence
Indirect evidence, also called circumstantial evidence, is all other evidence, such as the
fingerprint of an accused found at the crime scene. Indirect evidence does not by itself prove the
offence, but through interpretation of the circumstances and in conjunction with other evidence
may contribute to a body of evidence that could prove guilt beyond a reasonable doubt (Justice
Department Canada, 2017). Strong circumstantial evidence that only leads to one logical
conclusion can sometimes become the evidence the court uses in reaching belief beyond a
reasonable doubt to convict an accused. It requires assumptions and logical inferences to be
made by the court to attribute meaning to the evidence.
“When one or more things are proved, from which our experience enables us to ascertain
that another, not proved, must have happened, we presume that it did happen, as well in
criminal as in civil cases.” (MacDonell, 1820)
Circumstantial evidence demonstrates the spatial relationships between suspects, victims,
timelines, and the criminal event. These spatial relationships can sometimes demonstrate that an
accused person had a combination of intent, motive, opportunity, and/or the means to commit the
offence, which are all meaningful features of criminal conduct.
Circumstantial evidence of intent can sometimes be shown through indirect evidence of a suspect
planning to commit the offence, and/or planning to escape and dispose of evidence after the
offence. A pre-crime statement about the plan could demonstrate both intent and motive, such as,
“I really need some money. I’m going to rob that bank tomorrow.”
Circumstantial evidence of conflict, vengeance, financial gain from the commission of the
offence can also become evidence of motive.
Circumstantial evidence of opportunity can be illustrated by showing a suspect had access to a
victim or a crime scene at the time of the criminal event, and this access provided opportunity to
commit the crime.
Circumstantial evidence of means can sometimes be demonstrated by showing the suspect had
the physical capabilities and/or the tools or weapons to commit the offence.
Presenting this kind of circumstantial evidence can assist the court in confirming assumptions
and inferences to reach conclusions assigning probative value to connections between the
accused and a person or a place and the physical evidence. These circumstantial connections can
create the essential links between a suspect and the crime.
There are many ways of making linkages to demonstrate circumstantial connections. These range
from forensic analysis of fingerprints or DNA that connect an accused to the crime scene or
victim, to witness evidence describing criminal conduct on the part of an accused before, during,
or after the offence. The possibilities and variations of when or how circumstantial evidence will
emerge are endless. It falls upon the investigator to consider the big picture of all the evidence
and then analytically develop theories of how events may have happened. Once a reasonable
theory has been formed, evidence of circumstantial connections can be validated through further
investigation and analysis of physical exhibits to connect a suspect to the crime.
Inculpatory Evidence
Inculpatory evidence is any evidence that will directly or indirectly link an accused person to the
offence being investigated. For an investigator, inculpatory evidence can be found in the victim’s
complaint, physical evidence, witness accounts, or the circumstantial relationships that are
examined, analyzed, and recorded during the investigative process. It can be anything from the
direct evidence of an eyewitness who saw the accused committing the crime, to the
circumstantial evidence of a fingerprint found in a location connecting the accused to the victim
or the crime scene.
Naturally, direct evidence that shows the accused committed the crime is the preferred
inculpatory evidence, but, in practice, this it is frequently not available. The investigator must
look for and interpret other sources for evidence and information. Often, many pieces of
circumstantial evidence are required to build a case that allows the investigator to achieve
reasonable grounds to believe, and enables the court to reach their belief beyond a reasonable
doubt.
A single fingerprint found on the outside driver’s door of a stolen car would not be sufficient for
the court to find an accused guilty of car theft. However, if you added witness evidence to show
that the accused was seen near the car at the time it was stolen, and a security camera recording
of the accused walking off the parking lot where the stolen car was dumped, and the police
finding the accused leaving the dump site where he attempted to toss the keys of that stolen car
into the bushes, the court would likely have proof beyond a reasonable doubt.
If an abundance of inculpatory circumstantial evidence can be located for presentation to the
court that leads to a single logical conclusion, the court will often reach their conclusion of proof
beyond a reasonable doubt, unless exculpatory evidence is presented by the defence to create a
reasonable doubt.
Exculpatory Evidence
Exculpatory evidence is the exact opposite of inculpatory evidence in that it tends to show the
accused person or the suspect did not commit the offence. It is important for an investigator to
not only look for inculpatory evidence, but to also consider evidence from an exculpatory
perspective. Considering evidence from the exculpatory perspective demonstrates that an
investigator is being objective and is not falling into the trap of tunnel vision. If it is possible to
find exculpatory evidence that shows the suspect is not responsible for the offence, it is helpful
for police because it allows for the elimination of that suspect and the redirecting of the
investigation to pursue the real perpetrator.
Sometimes, exculpatory evidence will be presented by the defence at trial to show the accused
was not involved in the offence or perhaps only involved to a lesser degree. In our previous
circumstantial case of car theft, there is strong circumstantial case; but what if the defence
produces the following exculpatory evidence where:
• A tow truck dispatcher testifies at the trial and produces records showing the accused is a
tow truck driver;
• On the date of the car theft, the accused was dispatched to the site of the car theft to assist a
motorist locked out of his car;
• The accused testifies that he only assisted another male to gain entry to the stolen car
because he could see the car keys on the front seat;
• The accused explains that, after opening the car, he agreed to meet this male at the parking
lot where the car was left parked;
• He accepted the keys of the stolen car from the other male to tow the vehicle later to a
service station from that location;
• When approached by police, he stated that he became nervous and suspicious about the
car he had just towed; and
• He tried to throw the keys away because he has a previous criminal record and knew the
police would not believe him.
Provided with this kind of exculpatory evidence, the court might dismiss the case against the
accused.
Having read this, you may be thinking that this exculpatory evidence and defence sounds a little
vague, which is the dilemma that often faces the court. If they can find guilt beyond a reasonable
doubt, they will convict, but if the defence can present evidence that creates a reasonable doubt,
they will make a ruling of not guilty. Experienced criminals can be very masterful at coming up
with alternate explanations of their involvement in criminal events, and it is sometimes helpful
for investigators to consider if the fabrication of an alternate explanation will be possible. If an
alternate explanation can be anticipated, additional investigation can sometimes challenge the
untrue aspects of the alternate possibilities.
Corroborative Evidence
The term corroborative evidence essentially refers to any type of evidence that tends to support
the meaning, validity, or truthfulness of another piece of evidence that has already been
presented to the court. A piece of corroborative evidence may take the form of a physical item,
such as a DNA sample from an accused matching the DNA found on a victim, thus corroborating
a victim’s testimony. Corroborative evidence might also come from the statement of one
independent witness providing testimony that matches the account of events described by
another witness. If it can be shown that these two witnesses were separated and did not
collaborate or hear each other’s account, their statements could be accepted by the court as
mutually corroborative accounts of the same event.
The courts assign a great deal of probative value to corroborative evidence because it assists the
court in reaching their belief beyond a reasonable doubt. For investigators, it is important to not
just look for the minimum amount of evidence apparent at the scene of a crime. Investigation
must also seek out other evidence that can corroborate the facts attested to by witnesses or
victims in their accounts of the event. An interesting example of corroborative evidence can be
found in the court’s acceptance of a police investigators notes as being circumstantially
corroborative of that officer’s evidence and account of the events. When a police investigator
testifies in court, they are usually given permission by the court to refer to their notes to refresh
their memory and provide a full account of the events. If the investigator’s notes are detailed and
accurate, the court can give significant weight to the officer’s account of those events. If the
notes lack detail or are incomplete on significant points, the court may assign less value to the
accuracy of the investigator’s account.
For the court, detailed notes properly made at the time corroborate the officer’s evidence and
represent a circumstantial guarantee of trustworthiness for the officer’s testimony (McRory,
2014).
Disclosure of Evidence
It is important for an investigator to be aware that all aspects of their investigation may become
subject to disclosure as potential evidence for court. As part of the process of fundamental justice
within the Canadian Charter of Rights and Freedoms, a person charged with an offence has the
right to full disclosure of all the evidence of the investigation (R v Stinchcombe, 1991). This
means that any evidence or information gathered during the police investigation must be
available for the defence to review and determine if that evidence could assist the accused in
presenting a defence to the charge before the court.
In the disclosure process, the decision to disclose or not to disclose is the exclusive domain of the
crown prosecutor and, although police investigators may submit information and evidence to the
prosecutor with the request that the information be considered an exception to the disclosure
rules, the final decision is that of the crown. That said, even the decision of the crown may be
challenged by the defence and that then becomes a final decision for the Judge. The prosecutor
will ask the police to provide a full disclosure of the evidence gathered during their investigation.
The list of what should form part of a normal disclosure will typically include:
• Charging document
• Particulars of the offence
• Witness statements
• Audio/video evidence statements by witnesses
• Statements by the accused
• Accused’s criminal record
• Expert witness reports
• Notebooks and Police reports
• Exhibits
• Search warrants
• Authorizations to intercept private communications
• Similar fact evidence
• Identification evidence
• Witnesses’ criminal records
• Reports to Crown Counsel recommending charges
• Witness impeachment material
It is worth stressing that police notes and reports relating to the investigation are typically studied
very carefully by the defence to ensure they are complete and have been completely disclosed.
Disclosure will also include investigation notes and reports that relate to alternate persons
considered, investigated, and eliminated as suspects in the crime for which the accused is being
tried. If alternate suspects were identified and not eliminated during the investigation, that lack of
investigation may form the basis for a defence to the charge.
The issues relating to the disclosure of evidence have been the subject of several Supreme Court
of Canada rulings and a few exceptions to disclosure had been identified where certain
information does not need to be disclosed. These exceptions to disclosure were outlined in the
benchmark disclosure case of R v Stinchcombe (1991). These exceptions include:
• Information that is clearly irrelevant
• Information that is considered privileged
• Information that would expose an ongoing police investigation
• Information that would compromise the safety of a witness
For an investigator, the requirement to comply with disclosure is one of the best reasons to make
sure notes and reports are complete and accurately reflect the investigation and actions taken
during the investigation. From the court’s perspective, there will never be any excuse for a police
investigator to intentionally conceal or fail to disclose evidence or information.
Witness Evidence
Witness evidence is evidence obtained from any person who may be able to provide the court
with information that will assist in the adjudication of the charges being tried. This means that
witnesses are not only persons found as victims of a crime or on-scene observers of the criminal
event. They may also be persons who can inform the court on events leading up to the crime, or
activities taking place after the crime.
These after-the-crime activities do not just relate to activities of the suspect, but also include the
entire range of activities required to investigate the crime. Consequently, every police officer
involved in the investigation, and every person involved in the handling, examination, and
analysis of evidence to be presented in court, is a potential witness.
Issues relating to the collection of witness evidence will be discussed in more detail in Chapter 7
on Witness Management.
Hearsay Evidence
Hearsay evidence, as the name implies, is evidence that a witness has heard as a communication
from another party. In addition to verbal communication, legal interpretations of the meaning of
hearsay evidence also include other types of person-to-person communication, such as written
statements or even gestures intended to convey a message. As defined by John Sopinka in his
book, The Law of Evidence, hearsay is:
“Written or oral statements or communicative conduct made by persons otherwise than in
testimony at the proceedings in which it is offered, are inadmissible if such statements or
conduct are tendered either as proof of their truth or as proof of assertions implicit therein
(Sopinka, 1999, p. 173).
Hearsay evidence is generally considered to be inadmissible in court at the trial of an accused
person for several reasons; however, there are exceptions where the court will consider accepting
hearsay evidence (Thompson, 2013). The reasons why hearsay is not openly accepted by the
court include the rationale that:
• The court generally applies the best-evidence rule to evidence being presented and the best
evidence would come from the person who gives the firsthand account of events;
• The original person who makes the communication that becomes hearsay, is not available
to be put under oath and cross-examined by the defense;
• In hearing the evidence, the court does not have the opportunity to hear the
communicator firsthand and assess their demeanor to gauge their credibility; and
• The court recognizes that communication that has been heard and is being
repeated is subject to interpretation. Restatement of what was heard can
deteriorate the content of the message.
The court will consider accepting hearsay evidence as an exception to the hearsay rule in cases
where:
• There is a dying declaration
• A witness is the recipient of a spontaneous utterance
• The witness is testifying to hearsay from a child witness who is not competent
Dying Declarations
Exceptions to the hearsay rule include the dying declaration of a homicide victim. This type of
declaration is allowed since it is traditionally believed that a person facing imminent death would
not lie. Justice Eyre in the 1789 English case of R v Woodcock stated:
“The general principle on which this species of evidence is admitted is, that they are
declarations made in extremity, when the party is at the point of death, and when every hope
of this world is gone: when every motive to falsehood is silenced, and the mind is induced by
the most powerful considerations to speak the truth; the situation so solemn and so awful, is
considered by the law as creating an obligation equal to that which is imposed by a positive
oath administered in a court of justice” (R v Woodcock, 1789).
Per the rules of the Canada Evidence Act (Government of Canada, 2015), for a dying declaration
to be acceptable to the court, the victim:
• Must be a victim of 1st or 2nd degree murder, manslaughter, or criminal negligence causing
death;
• Must be making a statement in regards to the cause of death;
• Must know at the time they make the statement that their death is imminent;
• Must be someone who would have been a competent witness had they lived; and
• Must die of their injuries within a reasonable time after the statement was made.
This is a delicate area because in cases where the victim of a serious assault is in danger of
dying, the investigator may have the opportunity to gain evidence by taking a statement from that
victim; however, that statement would need to include some acknowledgement by the victim that
they believed they are in imminent danger of dying (Sebetic, 1950).
Recipient of a Spontaneous Utterance
In cases where a witness hears a spontaneous utterance of a victim, the court may accept the
witnesses restating of that utterance if, according to Ratten v R (1971):
… the statement providing it is made in such conditions of involvement or pressure as to
exclude the possibility of concoction or distortion to the advantage of the maker or the
disadvantage of the accused (Ratten v R, 1971).
Hearsay of Statement From a Child Witness Who is Not Competent
In cases where a child witness is not competent or available to provide evidence, the parent or
another adult, who has heard a statement from that child, may be permitted to provide that
information by way of hearsay to the court. These circumstances have been illustrated in case
law from the case of R v Khan (1990). In this case, the mother of a 3 ½ year old girl was not
present when the child was sexually assaulted by her doctor during an examination. However,
immediately after the examination, the child made explicate statements of what happened to the
mother and provided descriptions of acts that a child could not have made up. From this case, the
court did consider hearsay evidence as an exception to the hearsay rule. The case of R v Khan
created what has become known as the “principled approach” and it allows that hearsay evidence
may be admissible if two conditions are proven. These conditions are necessity and reliability.
In R v Khan (1990), the S.C.C. defined necessity as instances where:
• A child was not competent to testify by reason of young age;
• A child is unable to testify;
• A child is unavailable to testify; or
• In the opinion of an expert psychologist providing testimony would be too traumatic
and harmful to the child.
In R v Khan (1990), the court defined reliability factors as relating to the credibility of the
person’s observations and these included:
• When the hearsay statement was made about the offence;
• The nature of the child’s demeanor;
• The level of the child’s intelligence and understanding; and
• The lack of a reason for the child to have fabricated the story.
Since the adoption of the Khan Rule, the rules of hearsay have expanded on the principled
approach that if the evidence is considered necessary to prove a fact in issue at the trial, the
hearsay evidence being submitted is found to be reliable (Dostal, 2012). To prove reliability, the
crown must submit evidence that demonstrates the circumstantial guarantee of trustworthiness.
This definition of reliability was further articulated in R v Smith:
“The criterion of “reliability” or the circumstantial guarantee of trustworthiness — is a
function of the circumstances under which the statement in question was made. If a
statement sought to be adduced by way of hearsay evidence is made under circumstances
which substantially negate the possibility that the declarant was untruthful or mistaken, the
hearsay evidence may be said to be “reliable”, i.e., a circumstantial guarantee of
trustworthiness is established” (R v Smith, 1992).
An interesting aspect of hearsay evidence that sometimes confuses new investigators is that
during any investigation, the investigator is searching out and retrieving hearsay accounts of
events from various witnesses. From these hearsay accounts, the investigator is considering the
evidence and using that hearsay information to form reasonable grounds to believe and take
action. This is a totally acceptable and legally authorized process, and, if ever questioned in court
regarding the process of forming reasonable grounds on the basis of hearsay, the investigator can
qualify their actions by pointing out their intent to call upon the original witness to provide the
court with the unfettered firsthand account of events. Investigators are merely the people
empowered to assemble the available facts and information from various sources found in
witnesses and crime scene evidence. As an investigator assembles the evidence they are
empowered to form reasonable grounds for belief and take actions of search, seizure, arrest, and
charges to commence the court process. Once in court, the investigator’s testimony will only
relate to the things they have done in person or statements they have heard as exceptions to the
hearsay rule while forming of reasonable grounds to take action.
