CHAPTER 3
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EVIDENCE
3.7 Weight or Probative Value
3.7.5 Probative Value of Physical Evidence
For physical evidence to be probative at all, it must be authentic. Authenticity is generally proved by witnesses who say that the item (e.g., the object, plan, photograph, audio or video recording) is authentic and accurate. For example, a photograph may be authenticated by the photographer or by a witness who has personal knowledge of the thing or place in the photograph. A video recording may be authenticated by a witness who identifies the voices and images on the recording, etc.
At common law, the probative value of physical evidence has always been considered good because it allows judges to observe through their own senses rather than depend on the observations of a witness. The same situation prevails in Quebec: art. 2856 C.C.Q. provides that "the court may draw any inference it considers reasonable from the production of a material thing."
Not all physical evidence is of equal probative value. For example, conclusions drawn from fingerprints are practically impossible to refute, whereas amateur video will not be considered as reliable as video recordings made by official news agencies.
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