"[F]rom 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." Evidence-Common Sense and Common Law pp.10-11.    

During 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?  

Occasionally 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.   Presumptions 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 the husband.  

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.   The standard 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.  

The 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.