Evidentiary Errors?

It is difficult to win an appeal based upon an evidentiary error at trial, especially where the trier of fact was a judge.  Yesterday’s Court of Appeal decision in R. v. Curto, 2008 ONCA 161, which mainly focuses on the use of narrative, explains why.

 

If evidence is admitted for a limited purpose and there is no explicit explanation of the limitation, it will be assumed a jury misused the evidence.  If a judge was sitting alone, however, the assumption will be that the judge used the evidence properly unless there are solid grounds to show the judge misused the evidence.  In effect the default position with a jury is “misuse” while the default position with a judge is “proper use”.

 

The Court writes:

 

[36]          By contrast, in a judge alone trial it can generally be assumed that the trial judge is aware of the limited use of the evidence.  The question in this case is whether the trial judge’s reasons disclose that he misused the evidence.