disputes which get to court involve a dispute about the facts. Some involve a
dispute about both law and the facts; a fairly small minority are about the law
and nothing else. The facts that are disputed are determined by the substantive
law (Contract, Tort, Crime, Company Law, Insolvency Law etc.
) and the reactions of the parties to allegations. For instance, on a charge
of murder the prosecution must prove that the victim was killed by the defendant
who at the time had that mental state specified by the Criminal Law for murder.
The facts in issue will be the actions and the mental state of the defendant.
If the defendant raises a defence of provocation, then the facts in issue will
include the actions of the victim.
The court reconstructs
events from the evidence presented by the parties to the court.
In most trials the chief form of evidence is the sworn testimony
of witnesses. But it may include documents, physical property, such as a weapon
and scientific evidence.
The court makes its findings
of fact from the evidence given directly to the court and the inferences which
can be drawn from such evidence.
The rules of
evidence restrict the evidence which may be presented to the court and determine
how that evidence is handled.
The rules of evidence are chiefly concerned
with five matters:
What is evidence for legal purposes?
When is evidence unnecessary?
How and by whom can evidence be presented to the court?
How is the evidence to be evaluated?
What are the roles of those who constitute the
What is Evidence for
Central to this part
of the Law of Evidence is the concept of relevance.
Evidence will not be admitted by a court unless it goes some way to show, either
directly or indirectly, that a fact in dispute did or did not exist.
The price of ham is irrelevant in an action by a customer against a shopkeeper
from whose ham the customer contracted salmonella poisoning.
However, courts will not listen to everything that is relevant. Relevance
and admissibility are separate concepts.
The Law of Evidence says that certain kinds of relevant evidence cannot be taken
into account. The point is well made by Maguire:
the very beginning a student of evidence must accustom himself to dealing as wisely
and understandingly as possible with principles which impede freedom of proof.
He is making a study of calculated and supposedly helpful obstructionism."
and Common Law pp.10-11.
the course we will look at some of the rules of privilege which exist:
the privilege against self-incrimination, legal professional privilege, litigation
privilege, without prejudice negotiations and public policy immunity. Time does
not permit us to look at all of these. These result in the exclusion of evidence
which is often highly probative.
These are all exclusionary rules, founded on public policy, which require a court
to ignore relevant evidence. There are many other exclusionary rules including
the opinion evidence rule, the rule against admitting evidence of findings by
other courts about the facts in dispute and the rule - which applies only in criminal
trials- that evidence of a criminal defendant's propensity to commit crime in
general or a particular crime should not be admitted.
The best known exclusionary rule is the hearsay
rule. The object of this rule is to limit a witness's evidence when offered
to prove the facts asserted to things which the witness perceived with his own
five senses: that is to say, things which he has seen, heard, felt, smelt and
tasted. Again time does not permit us to study all of these exclusionary rules.
Because these exclusionary rules obstruct discovery
of the truth many exceptions to the exclusionary rules have been recognised. The
hearsay rule is subject to a very large number of exceptions and in some cases
these exceptions are themselves subject to exceptions! A confession by a criminal
defendant is hearsay. It is nonetheless admissible, but only so long as it was
not obtained through oppression or other dubious means. There are exceptions to
all the private privileges and to public interest immunity. The opinion evidence
rule has been partially eroded. Statutory inroads have been made into the
rule against evidence of prior determinations and the propensity evidence rule
is not absolute.
When is Evidence Unnecessary?
the Law of Evidence allows a fact to proved without evidence. This happens when
the court takes judicial notice of a fact. Sometimes no evidence is required
because a party makes a formal admission.
lessen the burden on a party to produce evidence. Where legitimacy is in issue
a party will not be asked to prove that the child is the off-spring of two people
who were married to one another. The Law of Evidence only asks the party to prove
that the child was born to the mother during the marriage. The child will be found
legitimate by the court unless the opponent can produce evidence which satisfies
the court on the balance of probabilities that the child was not the child of
Presenting Evidence to the Court
The course will look at the rules governing
examination-in-chief, cross-examination and re-examination and re-opening a case.
These rules have been devised to allow evidence to be presented in a orderly fashion,
to make it easier for the court or jury to follow the evidence and to be fair
to the parties. Special rules have been devised to control cross-examination of
the accused in a criminal trial.
Also of importance are the rules
which determine who will be allowed to give oral evidence in court and who can
refuse to testify. Nowadays almost anyone who has something relevant to say is
competent to give evidence, although not necessarily on oath. Children
can, and in criminal cases must, give evidence unsworn. Most people are both competent and compellable
witnesses. They cannot refuse to testify. The criminal defendant is an exception:
he is competent but not compellable. But if he stays out of the witness box the
jury can draw adverse inferences from his silence.
When evidence takes
the form of a document there are a number of rules which stipulate whether the
document is acceptable quite apart from any issue of relevance or infringement
of an exclusionary rule. For example, there are rules about the use of copies
and the proper authentication of documents. There are also rules about the
production of real evidence (objects) and the conduct of views and demonstrations
(excursions by the court).
The Evaluation of Evidence
This is what the burden and standard of proof
are all about. The general rule is that the party initiating proceedings, and
seeking to establish liability, bears the legal burden of persuading the court
of his allegations. Sometimes, for policy reasons, the Law of Evidence reverses
the burden of proof. Thus the defence and not the prosecution in a criminal trial
has the burden of proving insanity. The Law of Evidence may go half-way in this
direction by shifting the evidential burden of proof - the obligation to come
forward with some evidence before the issue will be considered by the court -
but not the legal burden of proof.
of proof tells us to what degree the evidence which is advanced by a party bearing
the legal burden of proof must be persuasive. When the prosecution has the burden
of proof in a criminal trial, which it has on most issues, it must prove the facts
it alleges beyond reasonable doubt.
The Roles of Those who Make up the Court
In criminal trials for serious offences a judge still sits with a jury. The
Law of Evidence determines the role which each plays. The division of functions
is not entirely clear-cut. The basic rule is that law is for the judge and fact
for the jury. Decisions about the admissibility of evidence are taken by the judge
even when they hinge on questions of fact.
The Law of Evidence was originally
almost entirely judge-made. However, increasingly the legislature has intruded
into this area of the law and the study of Evidence, like the study of most legal
subjects, requires a familiarity with both the common law and statute law. The
most important statutory provisions which we shall be studying are contained within
the Criminal Justice Act 1988, the Criminal Evidence Act 1898 and the Police and
Criminal Evidence Act 1984 and the Criminal Justice and Public Order Act 1994,
Civil Evidence Act 1995 and the Youth Justice and Criminal Evidence Act 1999 and
the Criminal Justice Bill 2003.
As a general proposition the
Law of Evidence is the same for civil and criminal disputes, although both the
common law and statutes have made certain changes to the rules as they apply in
criminal proceedings. For example, the standard of proof is more demanding in
criminal proceedings, the reception and evaluation of evidence is more stringently
regulated and limits have been set on the permissible scope of cross-examination
of the accused if he decides to go into the witness box.
Law of Evidence has been fashioned to accommodate the adversarial system in which
it operates. The rules assume that the parties have responsibility for determining
the evidence to be presented to the court. If the adversarial system were to go
the rationale for many of the rules would disappear.
In the last few decades there has been considerable reform of the Law of
Evidence. The pressure for reform is continuing. The trend is towards greater
admissibility; of limiting the scope and operation of the various exclusionary
rules with the goal of creating a rational body of rules and principles to aid
the court to discover the truth about the facts in dispute.