Evidence Overview

Evidence

Evidence is that which tends to prove or disprove the facts in dispute.  Evidence must be relevant to the questions in issue. It must be relevant as a matter of fact and common sense and must not be inadmissible at law.

There may be direct eyewitness evidence of the matters in dispute in many cases. In other cases, it may be necessary to rely on circumstantial evidence only or a combination of direct and indirect evidence,

Evidence of facts which in the common course of things, render the facts in dispute (in \”issue\”), more or less probable, is usually admissible. This is sometimes called “circumstantial” evidence. Circumstantial evidence should be logically relevant to the disputed facts.

The most important type of evidence is verbal evidence given on oath or affirmation.  It is a fundamental feature of the common law system of criminal and civil justice, that a person putting forward facts in a claim may be subject to challenge, scrutiny and examination.

Verbal evidence is elicited by questions under oath or affirmation in court. Questions may only be asked to elicit relevant admissible evidence.  They must be directed towards eliciting facts relevant to the dispute.  These are the facts alleged in the claim and the defence respectively in a civil case or in the summons or indictment in a criminal case. Questions must be asked in good faith and must not be designed to embarrass, harass or oppress the witness.

Real evidence refers to physical items and materials which are relevant.  However real evidence will not stand alone.  It either must be agreed or oral evidence must be given to establish its authenticity and its connection with the facts in dispute. Documents may be offered as evidence.  However, the hearsay evidence rule generally prevents documents being offered as evidence of the truth of their content.

Where facts are not seriously disputed, they may and should be pre-agreed and should not require to be proved at all. Parties or their advocates may choose to waive the strict rules of evidence, either in advance or in the course of the hearing in relation to collateral and background facts which are not of key importance or which are not disputed. They may choose not to object to otherwise inadmissible evidence in such cases.

Best Evidence

The traditional common law principle was that the so-called best evidence of a particular matter should be offered. The is to say where better evidence could be produced, lesser evidence would not generally be acceptable.

If the best evidence was not available then secondary evidence could be proved. For example, a copy of a  deed could only be offered where it could be shown the original could not be produced because it was lost.

Witnesses must generally give evidence of relevant facts that they have observed first hand. However, circumstantial evidence (indirect perception of facts) which infer other relevant facts may be admitted as a practical necessity.

Witnesses

Most persons are competent to give evidence. This means that they are legally capable of giving oral evidence. Their evidence may be lawfully received, although it is a matter for the judge or jury to determine its credibility and the weight which should be attached to it. Children and persons who are mentally incapable may give unsworn evidence, provided that they are capable of giving an intelligible account of the matters concerned.

With limited exceptions, any person with knowledge of facts and matters relevant to matters in dispute in a civil or criminal case can be compelled to attend court and answer questions.  If he does not voluntarily attend, a Witness Summons or Subpoena (under pain of punishment) may be issued by a party, requiring him to attend.

A subpoena is an Order which issues from the Court offices and obliges the witness to attend.  If the witness fails to attend he may be arrested and brought before the court to explain his non-attendance . He may be committed to prison for contempt of court.

In the course of questioning a witness, the opponent’s advocate (barrister or solicitor) may challenge the validity of questions put. Even though evidence may be relevant, the rules of evidence exclude as inadmissible, certain types of evidence.  If a question seeks inadmissible or irrelevant evidence, it may be challenged.  Similarly, if evidence is given which is, in fact, irrelevant, the Judge may counsel  the jury in a jury trial, to disregard it, if it is prejudicial.

Witnesses must generally answer all questions properly put to them.  Failure to answer a proper question is contempt in the face of the Court.  The Court may imprison a witness for contempt of Court. In some instances, a  witness may be able to claim privilege.  The grounds are very limited and must be specifically claimed.  Where privilege applies, the witness may not be compelled to answer a question in relation to the privileged matter.

One of the best-known grounds of privilege is that the answer may expose the party or witness to criminal proceedings or a penalty. The rule does not apply to an accused in a criminal case, who chooses to give evidence.  However, an accused may generally refuse to give evidence and cannot be compelled to do so.

Exclusionary Rules

Several rules exclude evidence which may be logically probative. In other jurisdictions, many of these “exclusionary” rules have been abolished. The protection offered by the rules is most important in criminal cases on indictment, with a jury.  The rules evolved historically, when the jury trial was more common, in civil cases.

The rules exclude evidence by which (historically) a jury (but now the judge only) may be overly influenced, but which does not have the probative value that it may appear to have.  However, the rules apply to summary criminal cases heard by judges only and to civil cases, which are now, with limited exceptions, heard by Judges sitting without a jury.

Witnesses may not give evidence of their own previous consistent statements in order to bolster their credibility.  This evidence is presumed to be unreliable and is generally inadmissible as a matter of law.  There are certain circumstances where prior consistent statements, may be allowed. One important exception is where it is offered in order to rebut an allegation that the evidence has been recently fabricated.

Character evidence is generally inadmissible as proof of whether the disputed facts occurred. It is admissible in certain limited circumstances.  Character evidence is evidence which suggests that a person is more or less likely to do something due to his actions and behaviour on other occasions. The rationale is that this type of evidence is unreliable and should accordingly be wholly excluded

The general principle is that witnesses may testify only in relation to matters of which they have a first-hand personal knowledge and have observed.  They may not testify as to their opinion.  They may not draw inferences.  They may not offer opinions or say anything other than that which is directly relevant to facts in dispute.

There are common sense exceptions to the rule requiring firsthand observed narrative. Persons may give evidence of their perceptions, without a detailed explanation of the minutiae of what it is based on.  They may describe their observations in broad terms, especially when the matters are not seriously disputed.

Hearsay

A related principle is the so-called hearsay evidence rule. This rule or principle prohibits out of court statements or assertions being offered as proof of the truth of their contents.  In the narrow and commonly understood sense, a witness may not generally relay that what another person said on another occasion as evidence of the truth of what that person.  The rule applies to statements in documents.

Hearsay evidence is considered to be doubly objectionable. It is subject to the fallibility of recollection and more, importantly, is not subject to challenge by way of cross-examination. There are various exceptions to the hearsay evidence rule. The exceptions often require that other facts be proved, in order to form a basis for the exception to the rule. See generally the separate section on the hearsay evidence rule.

Some evidence, which might appear at first glance,  to be hearsay is not, in fact, hearsay because the question of its truth is not relevant. In this case, the truth of the content of the documents will not matter.  For example, letters constituting an exchange of correspondence constituting a contract are admissible as proof of their content, as the truth or falsity of the underlying offer and acceptance is irrelevant as a matter of contract law.

Opinion Evidence

A witness must generally give evidence, only of facts which he has perceived. He may not offer an opinion evidence. An expert may give opinion evidence it his areas of expertise. In order to qualify to give opinion evidence, it must be shown that the person concerned is an expert in the relevant area. The witness concerned will usually first give evidence of his qualification and or experience in the relevant areas.  The other party may not accept that the witness has the requisite expertise and may challenge it. The judge decides.

For  example in personal injuries cases, accident engineers, doctors etc may be relevant to determine what happened and the extent of the damage

The expert must base their opinion on proven facts or admitted facts. If the opinion is based on inadmissible on unproven facts the court should reject the opinion.

Expert opinion will not be admitted if it relates to matters of everyday experience on which the judge or jury can form his own conclusions without help.  It may be admitted to furnish the court with knowledge, which is outside its experience and knowledge.

Burden of Proof

In a civil case, the burden of proof is on the plaintiff or claimant.  He must prove, on the balance of probabilities, that the facts alleged by him in his claim, are true.  Proof on the balance of probabilities requires that the claimant shows that the facts he alleges are more likely than not to be true. It is said that if the probabilities are equal the case will fail.  The person must show that it is more probable than not that the facts are as he alleges.

The claimant must prove all the facts which are required to establish his claim. They should be set out in the formal pleadings.  For example, in a negligence claim, each aspect must be proved as a matter of probability namely the circumstances giving rise to the defendant’s duty, breach of that duty and that loss and damage was caused to the claimant as a result.

Once a claimant puts forward sufficient so-called “prima facie” evidence, his opponent then bears the burden of rebutting it. Prima facie evidence, is that which if it remains un-contradicted is sufficient to allow the claimant to succeed. This effectively places a burden on his opponent to bring forward evidence to the contrary, or evidence of facts which constitute a defence, which as a matter of law negates the claim.

Where the defendant raises a defence that goes beyond denying the claim, the onus is on him to prove the facts constituting that defence. For example, consent to the conversion of goods is a full defence.  If a claimant proves that the goods have been taken and converted by the claimant, the defendant may prove in turn that this was done with the claimant’s consent thereby negating a claim.  The defendant must prove his defence on the balance of probabilities.

This overall burden of proof rests with the claimant in the case as a whole. The defendant or accused may submit to the judge after the claimant/prosecution’s case that that party has not made out a sufficient case to succeed.  If this application succeeds, then the defendant will not need to put forward his defence.  The essence of the application is that the claimant\’s or prosecution’s case as put forward, is insufficient to succeed, even without contradiction the defendant’s witnesses and other evidence.

The rules are broadly similar in a criminal case, save that the prosecution must prove the case against the accused beyond a reasonable doubt. This means that if there is a reasonable doubt as to the accused’s guilt, he must be acquitted. If the accused has a defence, he need only establish the facts that constitute this deference on the balance of probabilities.

In practice, the obligation and burden to bring forward evidence may shift in the course of a civil or criminal proceeding.  Once one party has not brought forward sufficient evidence so that if the case concludes at that point, he would succeed there is effectively an onus on the other priority to bring forward evidence to contradict it.

Presumptions

Some presumptions apply as a matter of law.  Other presumptions are more questions of logical deduction.  For example, it is a presumption which applies as a matter of law, that a person has been missing for seven years and those who would normally be likely to hear from him, have not heard from him during this period that this raises a presumption that he is dead. Proof of these facts, with no indication to the contrary this would be sufficient presumption of death.

There are also a number of other presumptions which tend towards assuming the truth of the status quo.  There is a presumption of validity of the acts of governmental and other public authorities. There as a presumption that a child born to a married couple is legitimate.

Legislation may place an onus on one party or another to prove or disprove certain facts.  It may be provided that where certain circumstances, apply this is deemed presumptive of other facts. This is commonly encountered in criminal legislation. For example, a mechanical reading device such as a breathalyzer is presumed to be accurate, in the absence of proof to the contrary. Where the presumption applies, the accused must disprove the position.

In the law of civil wrongs,  the “res ipsa loquitur” presumption frequently assists the claimant. The res ipsa loquitur rule provides a presumption of negligence where an act or event happens which would not in the normal course occur without negligence. To some extent, this is less a presumption as a matter of logical inference.

Acceptance without Proof

Certain matters are accepted by the courts without evidence.  Judicial notice involves the Court or Judge accepting facts without proof.  This will apply to facts which are part of general knowledge and common sense.  This also includes facts that are available from incontrovertibly established sources or which are notorious.

Matters of common and indisputable knowledge need not be proved.  This would refer to basic matters of signs, human nature and everyday life.  Matters within the ordinary intelligence of individuals or which are commonly known need not be proved.

Judicial notice is taken of facts, evidence from well established and incontrovertible sources.  The Courts will take judicial knowledge of the law including the contents of Statutes.  They do not need to be proved.  Statutory rules and instruments may require proof.

Acceptance by Agreement or Default

Matters which are agreed or accepted between the parties do not require to be proved.  The trial should only deal with matters which are generally in dispute.  Parties are strongly encouraged, particularly under the newer case management rules, to agree matters which are not seriously disputed.  Parties may be penalised in costs for requiring their opponent unnecessarily, to prove matters which are not seriously disputed.

Many facts will be accepted by the course of the claim and defence.  If matters are not denied, they are accepted and accordingly, evidence need not be offered in relation to them. Even if matters are denied in the claim and defence, it may be that nearer the hearing, some of the questions are agreed so that the trial may proceed only in respect of the facts which are generally disputed.

Real Evidence

Real evidence involves the production of actual objects relevant to the matter in hand. The relevance and connection of the things concerned must be proved, generally by admission or verbal evidence. If the state or condition of a particular thing or goods are the subject of dispute the production of the physical goods may be powerful evidence of the matter alleged or denied.

In some cases, the Courts will inspect a particular location relevant to the dispute.  Photographs or video evidence may be agreed and accepted. For example, in industrial accidents, the location may either be inspected or may be brought forward and opened to the Court by video or photographic evidence.

Recordings, photographs, video and films may represent important evidence of matters in question.  The recordings, photographs, video etc. would themselves have to be proved unless admitted.  Photographs recordings and video evidence are not generally considered hearsay (unlike documents).  Although a film or photograph may be fabricated the content is not considered as evidence in the same sense that words and documents are.

A photograph must be admitted or authenticated.  The person taking the taking photograph must prove its authenticity.  It may also be necessary to prove that the photograph was developed and not interfered with (in the case of traditional cameras).  Similarly, tape recording and video recordings must be authenticated and proved or submitted to be connected to relate to the events in the dispute.

The physical appearance of witnesses in Court, their demeanour, is a critical aspect of the trial.  Generally, both the judge and opponents must be permitted to see the witnesses to consider their demeanour and the manner of their evidence and answers to cross-examination.  This is presumed to assist in appraising the credibility.