Most legal 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:
1. What is evidence for legal
purposes?
2. When is evidence unnecessary?
3. How and by whom can evidence be
presented to the court?
4. How is the evidence to be
evaluated?
5 What are the roles of those who
constitute the court?
What is Evidence for
Legal Purposes?
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:
"From 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.
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