LEV3701 Law Of Evidence - Summary Study Notes (Latest Update 2022)

LEV3701 Law Of Evidence - Summary Study Notes (Latest Update 2022) Evidence law General Introduction Introduction The first chapter of this teaching material deals with the introductory or preliminary matters such as the definition, purpose and nature of evidence law. Of also presents also study the common law and civil law approaches to evidence law with the various types of evidences. Here it shows the differences between two legal systems in their approach to evidence law. Moreover, it discusses the evidence law in Ethiopia and the where about of evidence rules and principles in Ethiopia in relation with the general rules of evidence. In addition the chapter reflects the fundamental distinction between the operations of the rules of evidence in the civil context from the criminal context. Finally, the chapter tries to give a highlight on classification of evidence and who show evidence can broadly be classified be it oral, documentary evidence or otherwise. At the end of this unit, the students are expected to be able to Chapter Objectives • describe what law of evidence is all about • explain the significance of evidence • identity the differences between the civil law and common law approach to law of evidence and the Ethiopian position • discuss the concept of evidence law in civil and criminal cases • discuss the type of evidences Downloaded by Jodie du Plessis () lOMoARcPSD| 2 1.1 Meaning, Nature and purpose of Evidence law 1.1.1 Evidence Law defined What is evidence law? Before dealing with “evidence law”, it is important to discuss about the concept of “evidence” in general since evidence and law of evidence are two different things. The word “ evidence” is originated from a Latin term “evidentia” which means to show clearly, to make clear to the sight to discover clearly certain, to ascertain or to prove. Thus, evidence is something, which serves to prove or disprove the existence or nonexistence of an alleged fact. The party who alleges the existence of a certain fact has to prove its existence and the party, who denies it, has to disprove its existence or prove its non-existence. However, all facts traditionally considered, as evidence may not be evidence in the eyes of evidence law. Rather, evidence is something presented before the court for the purpose of proving or disproving an issue under question. In other words, evidence is the means of satisfying the court of the truth or untruth of disputed fact between the parties in their pleadings. Draft Evidence Rules (DER) defines evidence, as “ a means whereby any alleged matter of fact, the truth of which is submitted to investigation, is proved and includes statements by accused persons, admission, Judicial notice, presumptions of law, and observation by the court in its Judicial capacity”. This definition may be more than what you think to be evidence. However, even though the kinds of evidences enumerated under Rule 3 of DER are not exhaustive, it failed to cite “documentary evidence” which is considered as one of reliable evidences, especially in civil cases, as one types of evidence. This seems the result of poor drafts' man ship. Discuss the literary meaning of evidence in comparison with evidence in the eyes of the law? Activity Downloaded by Jodie du Plessis () lOMoARcPSD| 3 When we come to the meaning of evidence law, different writers defines it according to their own perceptions but with similar messages. The difference is one defines in amore elaborated way while others do not. For instance, Mc. Cormick defines evidence law as “… the system of rules and standards by which the admission of proof at the trial of a lawsuit is regulated” But this definition is not as such very helpful especially to a beginner, because, it fails to incorporate what things are going to be dealt with by the course. The title of the course, is the law of evidence. That does not mean only the rules concerning whether a given piece of information is admissible or not, but also such questions as what happens if there is no evidence on a given point? How much evidence, if any must a party introduces to prevent a court from ruling against him on factual proposition? What are the roles of the judge in evaluating the evidence and the like. To this effect, Robert Arthur Melin [here after referred as Melin], have made an attempt to define evidence law in a more comprehensive way. He defined it as follows. The law of evidence is the body of legal rules developed and enacted to govern: A. facts that may be considered in court? This is the issue of relevant evidence that one should adduce before the court to support his allegation. 1. Facts in issue 2. Facts relevant to facts in issue B. The methods of securing consideration of these facts 1.By proof i. Real (e.g. documentary, exhibits) evidence ii. Oral evidence 2. Certain facts, which need not be proved i. Judicial notice- Facts so notorious as to be facts in public knowledge ,capable of being verified by authoritative texts Downloaded by Jodie du Plessis () lOMoARcPSD| 4 ii. Judicial admission (facts admitted in pleadings, at open court, in examination of parties, in testimony etc.) C. The party that must secure consideration of what facts: This is about burden of proof and degree of proof required to win the case. D. At the Appeal level evidence law can be said deal with the effect of failure to comply with rules in any of the above categories of evidence law (e.g. improper admission or rejection of evidence) Because the decision of the curt regarding the admissibility or non admissibility of evidence may form the subject of aground of appeal where an appeal is logged against conviction, discharge or acquittal [see Art 184(c of cr.p.c]. These errors on the admissibility or inadmissibility of evidence may be reversible or harmless error. Here that one should ask is that “Does evidentiary errors constitute Reversible error? Most of the time, an evidentiary error alone is not very likely to induce an appellate court to term the error “ reversible” on the ground that the error affected a substantial right of a party. As a general matter, evidentiary reversal is perhaps most plausible, and most Justifiable, when the constitutional rights of a criminal defendant may be at stake or when it appeared to be out come determinative. Otherwise they are considered as harmless error, which was not prejudicial to the rights of the party, and for which; therefore, the court will not reverse the judgment. When we come to our case, a decision of any court in Ethiopia will not be ripe for cassation unless it shows prima-facie case for the existence of a basic error of law. And even though there is no illustration of the implications “basic error of law” in general and on evidentiary errors in particular, the experience of the cassation division shows, among others, the cases depict that there is a basic error of law when any court renders a decision or makes ruling. (1) When false evidence is produced against the party (b) by framing an issue which the pleadings or oral arguments of the parties have not raised or (c) by failing to consider an issue the pleadings are oral arguments of the parties have raised and the like (“The cassation Division and the Requirements for Basic Error of law” Muradu Abdo WONBER” law Jour 2nd half-year, January 2008 at P 52-53 Downloaded by Jodie du Plessis () lOMoARcPSD| 5 Is Milen's outline sufficient only to define evidence law as it exists in a common law system or it is equally applicable to a civil law system? Activity To finalize it, the law of evidence in the major legal systems/ i.e., in the common law, civil law or in countries that have a mixed legal system) is the body of legal rules developed or enacted to govern. Ø What facts need to be proved and produced to the court Ø Which of the parties have the burden of proof Ø The required standards of proof to win the case The admissibility, creditability, and weight of evidence and other procedural matters as to how the evidence shall be produced before the court of law. 1.1.2 Nature of Evidence law Where is the place of evidence law in relation to other laws? It is important to know the place of evidence law in relation to other laws. Laws may broadly be classified in to substantive and adjective. Adjective laws are concerned with the method of presenting cases to court proving them or generally enforcing the rights and duties provided under the substantive laws. While substantive laws, are those that defines rights and duties. This forms the greater part of the law, it would seem that it is more important part, since it defines what rights, privileges and duties one person may have against or owe another. However the rights, privileges and duties that exist under such law will mean nothing unless they can be enforced. This is why adjective law is just as important as the substantive law. Downloaded by Jodie du Plessis () lOMoARcPSD| 6 Law of evidence is categorized under adjective law together with procedural laws, both criminal and civil procedure Of course some scholars suggested that there will not be any problem if we incorporate rules of evidence as one part of procedural law since they have similar purpose. However, the consensus has been reached in categorizing law of evidence as one part of adjective law for the sake of establishing more effective system of adjudication of cases before the court of law. Although one can see grains of evidence law in procedural laws, their main dealing is with how pleadings can be framed, investigation conducted, evidence collected etc… This does not necessarily make the law of evidence to be part of procedural law. There are certain issues procedural laws never address and are left to evidence law. For instance, in the procedural law you did not study about the standard of proof, facts to be proved or need not be proved and the valve to be given to each term of evidence etc. These are left to evidence law therefore evidence law is not strictly speaking procedural law, but shares the commonality with procedural laws in the sense that both are means to the enforcement of the substantive law. Thus, evidence law suitably falls with in the general category of Adjective laws, which deal with the enforcement of the substantive law. However this does not mean that all nations have their own code of evidence, which can be considered as one sect of Adjective law. For instance, as you see later our country Ethiopia does not have evidence code that when you are asked to show. The truth is that our rules of evidence are not put together in a code or proclamation, but are found widely scattered in both substantive and procedural law. You may remember articles on proof of marriage, proof of will, proof of contract, proof of ownership and a lot of legal presumptions that relate to evidence. In this case, the problem that you would face is whether law of evidence is part of procedural or substantive law? Is law of evidence more of practical course? Downloaded by Jodie du Plessis () lOMoARcPSD| 7 Law of evidence has more of the smell of the courtroom than most law school classes and it offers the opportunity for some court- room type exercises. But it cannot hope to duplicate the reality of the court room. Because the process of proof involves many participants, and it is impossible to regulate each and every action of those participants by the law of evidence unless we interpret the rules in line with purpose of the law of evidence in general and the rational behind of the specific rule in particular. One can understand more about the rules of evidence that he knows theoretically when he becomes a practitioner. For instance, it is the duty of the trial judge to ensure the defendant receives a fair trial. He can for example, limit the nature of questioning in cross-examination. And also he may exercise his discretion to exclude evidence if the prejudicial effect of which exceeds its probative value. Thus, the application of judge's discretion to secure the right to a fair trial may differ case to case bases........................................................................