Evidence

I INTRODUCTION

Evidence, the means by which disputed facts are proved to be true or untrue in any trial before a court of law or an agency that functions like a court. Because English law is committed to a rational rather than a formalistic system of evidence, no value is assigned to the form or the quantity of evidence offered. Effectiveness is generally determined by how persuasive the evidence seems, either to a judge or to a jury where that is the tribunal of fact. In a few cases, formal rules are enforced. Some transactions, such as wills or transfers of land, must be evidenced by written documents.

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II LAW OF EVIDENCE IN ENGLAND

English evidence law contains more detailed rules of proof than do other legal systems. This is largely attributable to the historic practice of trial by jury. Less strict rules of proof prevail in administrative agencies (for example, employment tribunals) where juries are not used, as well as in trials before judges alone. The following are some of the detailed rules that must be addressed in a legal action.

A Burden of Proof

The burden of producing evidence on a given point, and of persuading the judge or jury of its truth, is assigned by law to one side or the other in a court trial. Best known is the rigorous requirement that the prosecution in a criminal case must prove the defendant’s guilt beyond reasonable doubt. Lesser burdens placed on other litigants (parties that take part in a court action) typically involve proving their case by a balance of probabilities. Thus, a person may be found not guilty of manslaughter for a death occurring in a car crash when guilt is not proved beyond reasonable doubt. That person can, however, still be held liable for damages in a civil action for the same death, and on the same evidence, because negligence need only be proved on the balance of probability.

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B Admissibility

Rules of admissibility determine which items of evidence judges or juries may be permitted to hear (or see or read). Generally, if evidence is relevant it is admissible. Nevertheless, certain facts that are logically relevant and of considerable evidential force are still not legally admissible because of their supposed tendency to “confuse and mislead the jury”.

C Relevance

The evidence is relevant when it has a tendency “in reason” to prove or disprove disputed facts. No distinction is made between direct and circumstantial evidence. Thus, direct testimony of an eyewitness is relevant because it can show that an event occurred. Using an article found at the scene of a crime to show that its owner was present may have less probative force in the eyes of a jury, but it is equally admissible, and it is for the jury to decide what weight to attach to it.

Although it will usually be obvious whether evidence is relevant, it will be for the judge to decide whether it actually is so. It is also the judge’s task to decide whether, even if relevant, evidence should be put before the jury. Under certain circumstances, for example, a defendant’s criminal record may be put before a jury. The prosecution may apply to do this, and the judge will have to decide whether the requirements of the Criminal Justice Act 2003 have been satisfied and whether it would be fair to admit the evidence.

D Hearsay

Hearsay evidence consists of statements made out of court by someone who is not present to testify under oath at a trial.

Until the passage of the Criminal Justice Act 2003, most hearsay evidence was inadmissible in criminal cases. That Act allowed the admission of hearsay evidence in a number of cases, chiefly: where a witness is unavailable; statements in business documents; information that is already in the public domain; evidence of reputation, character, or family tradition; statements made in such emotionally overpowering circumstances “that the possibility of concoction or distortion can be disregarded”; confessions; and material upon which an expert witness relies.

In civil cases, either party may rely on hearsay evidence by serving on the other parties in advance of the trial a notice containing details of the hearsay.

E Witnesses

Nearly all persons with knowledge relevant to the case can testify; only those limited by extreme youth or mental incapacity are precluded. Witnesses may state only their own knowledge and are required to express facts rather than opinions. However, a special category of expert witnesses also exists. Experts frequently utilize hearsay and routinely express opinions. Doctors, for example, can testify as to the causes of death and injury; through training and experience, they are better qualified to form an opinion than the jurors (see Forensic Medicine).

Legal evidence is not limited to the sworn testimony of witnesses. Specific objects, when identified by spoken testimony, may often be introduced in evidence when their existence or appearance tends to prove or disprove an alleged fact. Thus, models, parts of machinery, weapons, clothing, and documents may generally be introduced in evidence. Interpreters give evidence of what non-English speaking witnesses have said.

F Privileges

Except for the accused party, anyone can be compelled to be a witness in a trial, but not every question asked must be answered. Facts that need not be disclosed on demand are known as privileged information. Information may be privileged even when the response would serve the cause of truth and justice.

Only powerful social interests, however, can justify the refusal to answer questions, so privileges are few. Among those established is the need of the nation to protect military and diplomatic secrets, often called Public Interest Immunity. A witness cannot generally be forced to answer a question that is self-incriminating.

In addition, some disclosures made in confidence need not be revealed. Lawyers cannot repeat what their clients have told them privately. However, the spouse of the accused is competent to give evidence for the prosecution, and can generally be compelled to give evidence on behalf of the accused.

G Corroboration

Corroboration is independent, admissible, and credible evidence tending to confirm that the accused has committed the crime; it is rarely required. A jury will be warned, however, that it may be dangerous to convict on the uncorroborated evidence of a particular witness such as an accomplice.

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III EVIDENCE IN OTHER JURISDICTIONS

The rules of evidence vary throughout the world. Western Europe generally follows a civil law tradition in trial procedure and consequently employs quite different rules of evidence. The codes there are nearly silent on the subject of admissibility, most probably because trial by jury is unknown. Witnesses are questioned by judges rather than by lawyers, thus minimizing disputes about which questions are permissible. European civil and criminal codes allow witnesses privileges similar to those found in the English legal tradition, although they are generally less protective of the accused party. The legal codes of Japan are heavily based on German laws, and still resemble them to some extent, but the post-World War II constitution also incorporated many protections of the accused found in English law.

Reviewed By:
Simon Levene

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Photo source: Dispatch

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