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Parties present their case to the court through evidence. Evidence may be given by witnesses, including you. It also typically includes documents supporting your case, such as invoices, diagrams or photos. Evidence is what the courts base their decision on in legal matters.
The evidence you present will play a major role in convincing the court of your case. It is the quality of your evidence that is important, not the quantity. For example, it is usually not necessary to have more than one witness testify to the same facts.
Some evidence may also be presented by agreement. This can happen when certain evidence is not in dispute. For example, both parties may agree on what repair services were requested even if they disagree about the quality. Case management conferences for small claims cases and pre-trial conferences for King’s Bench cases are often used to discuss facts that can be agreed to. The judge may also invite the parties to indicate their agreement regarding the filing of routine evidence at the start of a trial.
Evidence used in court cases should be:
The judge will determine whether the evidence you propose to submit is reliable, credible and relevant.
Questions about evidence can be discussed at the case management conference or pre-trial conference. The judge may let you know whether the evidence would be admissible at trial.
Evidence is reliable if it is accurate. This depends on a witness’ ability to observe, recall and recount facts. If a witness misremembers something, their testimony is unreliable even if they believe they are being honest.
Giving credible evidence means telling the truth. This is evidence that a judge or jury believes to be true. Witnesses who contradict themselves are often found to be not credible. Being evasive or impartial in answering questions about a topic can also go to credibility. Evidence from someone who is a neutral party can be very helpful.
Relevant evidence tends to make a fact more likely to be true. This means that it is evidence that may affect the outcome of the case. For example, evidence of how a worker was rude may not be relevant to the quality of the work they performed.
Opinions are typically not considered as evidence. This is because opinions are not facts. An exception to this is where an expert is giving opinion evidence. For example, an expert may give their opinion on how fast a vehicle was travelling before it crashed. Experts must be qualified by the court before giving their opinion. Experts must also be neutral third parties. Their purpose is to assist the court in coming to the truth of a matter. This means that a plaintiff or defendant cannot be their own expert witness.
The evidence that a witness gives should be based on their personal experience. Second-hand evidence is called hearsay and is generally not allowed because it is not as reliable as first-hand evidence. If a witness tries to testify about what someone else said about the case, it is hearsay. One exception to this is that a witness can testify about what the other party said to them. This is because the other party is present to dispute that testimony.
If a document is presented by someone other than the person who created the document, this is also hearsay. Someone with first-hand knowledge of the contents of a document should testify to it.
In some cases, hearsay evidence may be admitted if the judge has found that it is both necessary and reliable. An example of this could be a statement made by someone who was dying.
Before giving evidence to the court, the witness must swear or affirm to tell the truth. This helps to ensure that the evidence before the court is reliable. The difference between an oath and an affirmation is that an oath refers to God. People can choose to take an oath or an affirmation, depending on their personal beliefs. It is a criminal offence, called perjury, to knowingly make false statements after taking an oath or affirming to tell the truth.
For some cases, the court will make their decision based on written testimony in the form of an affidavit. Affidavits must be signed in front of a Commissioner for Oaths or a Notary Public. They will ask the person signing to take an oath or affirm that the contents of the affidavit are true. The Commissioner for Oaths or Notary Public does not consider the content of the affidavit or provide any advice about the case. You can look in the yellow pages to find a Commissioner for Oaths or a Notary Public. They will charge a fee for their service. You can also take your court documents to the courthouse where the case will be heard and staff at the courthouse will provide this service for free.
If your case is being decided on affidavit evidence, you can attach documents to your affidavit to support what you are saying. For example, you might attach a receipt to support what you have said about the cost of an item or a service.
Remember evidence is sworn testimony. A letter written by someone else is not evidence because the person who wrote it did not swear to the truth of it. If someone has something to say that supports your case, either have them prepare their own affidavit or call them as a witness.
Introduce the document in your affidavit. This means you state what it is and that it is attached as an exhibit. Letter the exhibits starting with “Exhibit A”. This allows you to refer to the exhibit in the body of the affidavit and helps to keep track of them. Do not attach the same document more than once. If you refer to it again, use the same letter you used when you first introduced it.
Evidence to support your case is either given by affidavit or through testimony as a witness in court, depending on the circumstances. In both cases, the following are important points to keep in mind…
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