Law of Evidence
,Contents
1 Introduction to the Law of Evidence ......................................................................................... 1
2 Admissibility of relevant evidence .......................................................................................... 16
3 Privilege (exclusion of relevant evidence) .............................................................................. 64
4 Unconstitutionally obtained evidence (exclusion of relevant evidence)................................... 85
5 Hearsay ............................................................................................................................... 106
6 Admissibility and proof of the contents of relevant detrimental statements ........................... 113
7 Kinds of evidence and the presentation thereof ................................................................... 119
8 Witnesses ............................................................................................................................ 129
9 Proof without evidence ......................................................................................................... 133
10 Evaluation of witnesses ...................................................................................................... 135
1
,1 Introduction to the Law of Evidence
History and theory of the Law of Evidence
Law of Evidence definition
- Area of law that governs the proof of facts in a court of law
o Indicates what facts are relevant and how much weight to attach to it
- Problem generally resolved in court of law
Significance of Law of Evidence
- Machine that transforms the rules of substantive law into orders and enforcements
- Remember –
o Substantive law = rights and duties of parties
▪ Follow Roman-Dutch Law
o Procedural law = procedural mechanisms to enforce rights and duties
▪ Follow English law
▪ Also known as adjectival law
- Law of Evidence forms part of the machinery of procedural law
Functions of Law of Evidence
- 1. Admissibility
o What can be admitted to prove the facts in issue (facta probanda)
- 2. Manner of presentation
o How should evidence be brought?
▪ Orally
▪ Documents
▪ Electronically
- 3. What evidence should not be considered
o Relevant evidence
o Irrelevant evidence
- 4. Factors influencing the probative value of evidence
o Does it make disputed point more or less true?
- 5. What evidence may be lawfully withheld from court
- 6. Rules for assessing the weight or cogency of the evidence
- 7. Standard of proof should be satisfied before a party bearing the burden of proof can be
successful
- What do you think the function of the law is? = administer justice
o Always ask: whether this rule is leading to / adding to justice
Area of law that Law of Evidence fits into
- Branch of procedural law (adjectival law)
1
, - Source = English law
- Linked to criminal and civil procedure
- Not always clear which falls under which branch
- E.g. right to cross-examine and duty to admit
o RDL = substantive law
o BUT they are procedural in nature and .: fall under Law of Evidence
Early History and development of (English) Law of Evidence
- (possible question? = critically evaluate the history)
- Different stages –
- 1. Religious / primitive stage (11th century)
o It was thought that one man should not sit in judgment upon another
o “trial by ordeal” = perfect aid in truth-finding
o Essentially an appeal to God to ‘decide’ factual dispute
o Anglo-Saxons had many different types of ordeals
▪ E.g. “ordeal of the accursed morsel” = accused required to swallow dry morsel
of bread, accompanied by a prayer that he should choke if here guilty
▪ Logical explanation of this = fear, brought about by feelings of guilt, dries the
mouth and renders it more difficult to swallow a dry piece of bread
o Trial by battle (from Normans) – judicium Dei par excellence
▪ Dispute could be settled by a duel – not merely appeal to physical force – but
accompanied by belief that Providence will give victory to the right
- 2. Formal stage (12th century)
o Increase in human reason and in field of evidence people were turning their backs on
age-old irrational methods
o Priests were forbidden from administering ordeals – thus destroying the validity of an
entire system of proof = God as fact-finder for human disputes was being abandoned
o “oath helpers” – oath was the primary mode of proof
▪ Later called compurgators
▪ People who were prepared to state under oath that the oath of one of the parties
should be believed – NOT eye-witnesses
▪ Party able to summon the largest number of compurgators ‘won’ the case
o Formal procedure – tribunal still not required to weigh evidence
o Mistakes in form were fatal
o We still have swearing an oath before getting on stand today
- 3. Rational stage
o Realisation that compurgators could make a more meaningful contribution
2
,Contents
1 Introduction to the Law of Evidence ......................................................................................... 1
2 Admissibility of relevant evidence .......................................................................................... 16
3 Privilege (exclusion of relevant evidence) .............................................................................. 64
4 Unconstitutionally obtained evidence (exclusion of relevant evidence)................................... 85
5 Hearsay ............................................................................................................................... 106
6 Admissibility and proof of the contents of relevant detrimental statements ........................... 113
7 Kinds of evidence and the presentation thereof ................................................................... 119
8 Witnesses ............................................................................................................................ 129
9 Proof without evidence ......................................................................................................... 133
10 Evaluation of witnesses ...................................................................................................... 135
1
,1 Introduction to the Law of Evidence
History and theory of the Law of Evidence
Law of Evidence definition
- Area of law that governs the proof of facts in a court of law
o Indicates what facts are relevant and how much weight to attach to it
- Problem generally resolved in court of law
Significance of Law of Evidence
- Machine that transforms the rules of substantive law into orders and enforcements
- Remember –
o Substantive law = rights and duties of parties
▪ Follow Roman-Dutch Law
o Procedural law = procedural mechanisms to enforce rights and duties
▪ Follow English law
▪ Also known as adjectival law
- Law of Evidence forms part of the machinery of procedural law
Functions of Law of Evidence
- 1. Admissibility
o What can be admitted to prove the facts in issue (facta probanda)
- 2. Manner of presentation
o How should evidence be brought?
▪ Orally
▪ Documents
▪ Electronically
- 3. What evidence should not be considered
o Relevant evidence
o Irrelevant evidence
- 4. Factors influencing the probative value of evidence
o Does it make disputed point more or less true?
- 5. What evidence may be lawfully withheld from court
- 6. Rules for assessing the weight or cogency of the evidence
- 7. Standard of proof should be satisfied before a party bearing the burden of proof can be
successful
- What do you think the function of the law is? = administer justice
o Always ask: whether this rule is leading to / adding to justice
Area of law that Law of Evidence fits into
- Branch of procedural law (adjectival law)
1
, - Source = English law
- Linked to criminal and civil procedure
- Not always clear which falls under which branch
- E.g. right to cross-examine and duty to admit
o RDL = substantive law
o BUT they are procedural in nature and .: fall under Law of Evidence
Early History and development of (English) Law of Evidence
- (possible question? = critically evaluate the history)
- Different stages –
- 1. Religious / primitive stage (11th century)
o It was thought that one man should not sit in judgment upon another
o “trial by ordeal” = perfect aid in truth-finding
o Essentially an appeal to God to ‘decide’ factual dispute
o Anglo-Saxons had many different types of ordeals
▪ E.g. “ordeal of the accursed morsel” = accused required to swallow dry morsel
of bread, accompanied by a prayer that he should choke if here guilty
▪ Logical explanation of this = fear, brought about by feelings of guilt, dries the
mouth and renders it more difficult to swallow a dry piece of bread
o Trial by battle (from Normans) – judicium Dei par excellence
▪ Dispute could be settled by a duel – not merely appeal to physical force – but
accompanied by belief that Providence will give victory to the right
- 2. Formal stage (12th century)
o Increase in human reason and in field of evidence people were turning their backs on
age-old irrational methods
o Priests were forbidden from administering ordeals – thus destroying the validity of an
entire system of proof = God as fact-finder for human disputes was being abandoned
o “oath helpers” – oath was the primary mode of proof
▪ Later called compurgators
▪ People who were prepared to state under oath that the oath of one of the parties
should be believed – NOT eye-witnesses
▪ Party able to summon the largest number of compurgators ‘won’ the case
o Formal procedure – tribunal still not required to weigh evidence
o Mistakes in form were fatal
o We still have swearing an oath before getting on stand today
- 3. Rational stage
o Realisation that compurgators could make a more meaningful contribution
2
