Experienced Criminal Lawyers

What Can be Used as Sexual Assault Evidence to Prove the Case Against Me?

Introduction

Sexual assault trials have increased in complexity due to several recent decisions from the Supreme Court of Canada and amendments to the legislation in the Criminal Code. Therefore, understanding what types of evidence that can be admitted at trial is critical.

The most common evidence is viva voce or live evidence from the complaining witness and other applicable witnesses. In some cases, evidence from the complaining witness and the accused may be the only evidence the judge or trier of fact hears in order to determine the legal questions at issue. However, in other cases, photographs, forensic evidence and sometimes statements made against penal interest can be admitted.

Prior sexual history may also be relevant. If your lawyer determines that it is, the defence must apply to have this evidence admitted. Ultimately, the trial judge will determine if this evidence is admissible. It is important to note that even if the evidence is admissible the trial judge has the discretion to limit the use of this evidence. This is one reason why it is so vital to have an experienced and competent lawyer making wise and strategic choices once in court.

Testimonial Evidence

The critical piece of evidence for the prosecution is the complaining witness’s testimony.  A solid and reputable defence lawyer will build a plan to break apart every aspect of this witness’s testimony. Triers of fact are required to assess evidence, such as this, for both credibility (this is a measure of the witness’s veracity) and reliability (how reliable is this witness). Sometimes the case will rise or fall on this issue alone. However, in most cases, the accused person will need to take the stand and testify as to his or her version of events. If the issue comes down to whether the complaining witness consented or not, then the credibility and reliability of each witness will be critical.  A reputable and competent defence lawyer will be ready to attack any prior inconsistent statements. Furthermore, a rock solid defence lawyer will properly prepare their witnesses so that any witness that is expected to take the stand will understand the purpose of examination-in-chief as well as cross-examination.

Digital Evidence

Video and audio recorded evidence as well as digital communications are another form of evidence that is commonly used in sexual assault trials. The rules of admissibility are governed under the Canada Evidence Act. Because this information is stored digitally, the evidence will need to be produced in a format the court and all parties can observe and use. This will likely mean that the party seeking to introduce this evidence will need to produce a paper work or a recorded record, on a USB for example, so that if it is deemed to be admissible it can be exhibited in the court records. It is important to understand that the party seeking to introduce this type of evidence will be required to “authenticate” the material. Authenticating evidence typically involves a witness testifying as to what the evidence is and that he or she captured it and the method for this capturing. For example, if the proposed evidence is a screenshot of a Snapchat message, then the party seeking to introduce this will have to testify that he or she received or sent this message and then created a screen capture. Other information may also need to be provided to the Court to confirm the document is what it purports to be. The threshold for admissibility and authentication of this type of evidence is low. The important component is how this evidence will be used and what weight the trier of fact places on it once it is exhibited.

Physical Evidence

This type of evidence can include DNA evidence (such as skin cells, loose hairs and bodily fluids), clothing, and other physical items can be used as evidence as well. This type of evidence is commonly used to corroborate one parties story.

How a judge is to assess the evidence

The legal issue at trial is whether the accused person is guilty or not. Guilt is assessed on the burden of proof beyond a reasonable doubt. This is a high bar to meet. Although proof beyond a reasonable doubt is hard to define, the Supreme Court of Canada has stated that it is doubt that “falls much closer to absolute certainty than to proof on a balance of probabilities” and also “that something less than absolute certainty is required, and that something more than probable guilt is required.” This means a judge or a jury cannot conclude “well he’s probably guilty”.

When a judge or trier of fact (jury) is assessing the evidence weight is placed on each piece of evidence. The judge or trier of fact is to then step back and look at the evidence holistically to come to a conclusion. This duty is to be completed with impartiality for the sole purpose of determining whether the prosecutor has met the high burden. The role of the trier of fact or judge is also to determine whether the exculpatory evidence is believed. Even if this exculpatory evidence is rejected, the trier of fact must still take a step back and determine whether there is a reasonable doubt on the whole of the evidence.

Conclusion

The rules of evidence are complex, especially for sexual assault trials. Lawyers must be keenly aware of these rules and must stay up to date as the common law interpretation of these rules is ever changing. No one ever expects to be accused of such a serious allegation. Unfortunately, it is more common now than it has ever been to be accused of this crime. Ensuring that you have competent and skilled lawyer is your first step at clearing your name and preserving your freedom. The next step is to work with your lawyer so that you can be as ready as possible to give viva voce evidence if it becomes necessary.