Probative
From Wikipedia, the free encyclopedia
Probative is a term used in law to signify "tending to prove."[1] Probative evidence "seeks the truth". Generally in law, evidence that is not probative (prejudicial evidence), or doesn't prove anything, is inadmissible and may be stricken from the record "if objected to by opposing counsel."[1] A balancing test may come in to the picture if the value of the evidence needs to be weighed versus its prejudicial nature.
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[edit] Etymology
Probative is an adjective with roots stemming from the word probate. It traces its origins to the word prouwe, dated circa 1175, and to the old French word prover, English word prove. [2] The term "probative", according to American Heritage Dictionary, means "serving to test, try, or prove."[3] Although "probative" and "probate" are etymologically related, they are two distinct legal concepts.
[edit] Canada
- This section deals primarily with Canada and may not represent a worldwide view.
The Canadian judiciary system utilizes the term "probative" which also signifies “prove to be worthy.” [4]
[edit] Canadian History
In 1970 The Supreme Court of Canada was concerned with exclusionary discretion within the judicial system. In R. v. Wray[4] the term “probative value” is used to explain that “judges in criminal cases do not have a discretion to exclude evidence because of how it was obtained.” [5]
| “ | The trial judge's discretion to exclude admissible evidence does not extend beyond his duty to ensure that the minds of the jury will not be prejudiced by evidence of little probative value, but of great prejudicial effect. Exclusion of evidence on the ground that, although its probative value was unquestionable, it was obtained by methods which the judge considers to be unfair, has nothing to do with his duty to secure a fair trial for the accused.” [4] | ” |
The sole discretion to exclude evidence is based on the weighing of prejudical value and probative value. Where the material evidence is being considered for exclusion:
| “ | ...a judge must determine the value of the evidence based on reliability and the strength of the inference it lead to, against the cost presented by such evidence, including things as diverse as the practicalities of its presentation, the fairness to the parties and to witnesses, and the potentially distorting effect the evidence can have on the outcome of the case.” [6] | ” |
Every day judges are faced to weigh the probative value versus the prejudicial impact. A part of this is symbolized by a weighing scale and represents justice.
[edit] References
- ^ a b Hill, Gerald N., and Kathleen T. Hill. "Probative Legal Definition of Probative." The Free Dictionnary by Farlex. July 2007. Farlex Inc. 2 July 2007 <http://legal-dictionary.thefreedictionary.com/probative>.
- ^ Harper, Douglas, Online Etymology Dictionary. Search "Prove", Published 2001, http://www.etymonline.com/index.php?term=prove, Accessed 2007-01-05.
- ^ The American Heritage Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. Updated in 2003. Published by Houghton Mifflin Company. All rights reserved. Republished by The Free Dictionnary by Farlex. July 2007. Farlex Inc. 2 July 2007 <http://legal-dictionary.thefreedictionary.com/probative>.
- ^ a b c The Queen v. Wray, [1971] S.C.R. 272, 1970 CanLII 2 (S.C.C.), 1970-06-26, http://www.canlii.org/ca/cas/scc/1970/1970scc10001.html, p.273, Accessed 2007-01-05
- ^ Paciocco, David M. & Stuesser, Lee. The law of evidence. IRWIN Law Inc., Third Edition, 2002, p.30
- ^ Paciocco, David M. & Stuesser, Lee. The law of evidence. IRWIN Law Inc., Third Edition, 2002, p.29
