Law of Evidence

1. Law of Evidence Functions and basic concepts

2. Meaning of evidence • Legal scholars and jurists have different views of defining the “evidence”, it depends on the context of using it. • Bryan garner defines the EVIDENCE: “something (including testimony, documents, and tangible objects) that tends to prove the existence of an alleged fact”. He continues to say that Evidence is a body of law regulating the admissibility of what is offered into the record of legal proceeding.

3. Meaning of evidence • Another definition is from AkiniolsAguda’s Book (law and practice relating to evidence in Nigeria) “The judicial evidence: means (forms) by which facts are proved, but excluding inferences and arguments. It is a common knowledge that facts will be proved, by production of oral testimony of persons who perceived that fact, or by the production of documents, or by the inspection of things or places”

4. Meaning of evidence • Another definition which seems wholesome is that for Adrian Keane which defines Evidence as “information by facts tend to be proved, and the law of evidence as that body of legal rules regulating the means by which facts may be proved in courts of law and tribunals and arbitration in which the rules of evidence are applied”

5. Meaning of evidence • The Kenyan evidence act defines the evidence “EVIDENCE denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved; and without prejudice to the foregoing generality, includes statement by accused persons, admissions, and observation by the court in its judicial capacity” • The Sudanese law of evidence defines the evidence (البينة) as “any means by which a fact is proved or disproved in the court, or disputes before the tribunals or arbitrations” in this sense it seems that the Sudanese law of evidence is more clear and took the doctrine of generality in the means of evidence.

6. The necessity of the rules of evidence • There are two views regarding the necessity for the rules of evidence. • One view is that, since the object of the court is to arrive at the truth i.e., the existence or non-existence of a fact, the more the court hears about it, the greater the chance of arriving at a correct conclusion.

7. The necessity of the rules of evidence • The other one is if there are no rules at all, then no case will ever be decided. It would take years before the simplest case is decided and justice would become a mockery. Further, if you leave it to the court to decide on each occasion what matters are connected with the matter in controversy and, therefore, should be looked into by the court, there will be great uncertainty as to relevant matters, depending upon the patience of the judge. Therefore the rules of evidence are absolutely necessary both from point of view of time as well as of certainty.

8. Law of evidence as part of procedural law • We have gone through the point that rules of evidence are necessary. We have also seen they play an important part in the course of the trial, whether of a civil or a criminal case. Since it deals with the procedure it is under the category of law referred to as procedural law or adjective, in contrast to substantive law, which deals with rights and liabilities. i.e., under what conditions a certain right exists in a certain person; under what conditions is a person subject to a specific liability.

9. Law of evidence as part of procedural law • The law of evidence, however, is part of the law of procedure, i.e., the procedure which a court has to follow. • It said that the law of evidence is the law of forum (or court) or lex fori. It is a matter of convenience. Which means in the evidential procedures, the court must follow those procedures of the country of the court. The foreigners cannot insist upon their law of evidence being followed by their countries.

10. Classification of Evidence • Evidence by which facts may be proven or disproven in court is known as judicial evidence. It is used to prove either facts in issue or relevant facts from which facts in issue may be inferred. It covers testimony of witness, documents, and objects that can be used as evidence. • In order to prove the existence or non-existence of fact, several categories of evidence emerge. These different categories of evidence will be discussed in depth in the upcoming lectures as we shall go through this course. However, a brief introduction would be provided here.

11. Classification of Evidence Evidence may be classified into five main categories, and they are: 1. Testimony: This is the most basic form of evidence. It consists of the oral narration of the witness of fact in the court at the proceeding. The testimony usually taken by oath or affirmation and may be unsworn, and that what we will cover it on its time. 2. Documentary evidence: This refers to evidence contained in documents and can be adduced in courts. Documentary evidence is evidence in the form of a recorded document. While many people may think of written documents, recordings in other media are also considered documentary evidence, i.e., a photograph or film would be classified as documentary evidence. The best type of evidence of a document is said to be the original copy and it must be adduced if it is relied upon. i.e., a contract offered to prove terms it contains is documentary evidence.

12. Classification of Evidence 3. Real evidence: This refers to material objects or exhibits which are produced for the courts inspection. It may also refer to a thing the existence or characteristics of which are relevant and material to a case. It is usually a thing that was directly involved in some event in issue in the case. i.e., the bloody knife, the murderer weapon, a crumpled automobile, and etc., to be admissible, real evidence, like all evidence, must be relevant, material, cogent, and competent.

13. Real evidence

14. Classification of Evidence 4. Circumstantial evidence: Circumstantial evidence is evidence of relevant facts from which the existence and non-existence of facts may be inferred. This should be contrasted with direct evidence of which a witness claims to have personal or first-hand knowledge. 5. Hearsay evidence: Hearsay evidence refers to testimony given or repeated in court by a person other than the one who perceived it. As a general rule hearsay is inadmissible. But there are some cases and circumstances hearsay evidence is admissible and needs corroboration. As students’ activity we will discuss collectively as you presenting in the time.

15. The functions of Evidence Law The law of evidence is of great importance to judicial proceedings, below are some of its functions: 1. It prescribes the manner in which relevant facts may be adduced in a court. i.e. either by way of oral or direct evidence or admissible hearsay evidence or judicial notice/presumption or documentary evidence etc.

16. The functions of Evidence Law 2. The law od evidence determines what facts may or may not be proved in a court of law. it does this by excluding those facts which may not be proved. 3. The law of evidence elaborately lays down the competence, compellability and privileges of witnesses. It stipulates rules on who qualifies to be a witness and who does not 4. It determines the questions to be asked to the witnesses and the manner of doing the same. 5. The law of evidence also sets down the manner of proof in court i.e. by witnesses on oath subject to examination-in- chief, cross examination and or judicial notice, presumptions, admissions, by production of material objects or documents etc.

17. Basic concepts of the Law of Evidence • There are certain basic technical terms used in the law of evidence. The meanings of some of the terms can be easily discernible from the use of ordinary language. Others are slightly technical. • What follows below is a definition of some of the most crucial terms which are applicable in the day-to-day application of the law of evidence. This list is certainly not exhaustive.

18. Basic concepts of the Law of Evidence 1. Fact: The Kenyan Evidence Act defines a fact as follows; “fact” include- a) any thing, state of things, or relation of things, capable of being perceived by the senses; and b) any mental condition of which any person is conscious.

19. Basic concepts of the Law of Evidence 2. Fact in Issue: A fact in issue means any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. Therefore, a fact in issue may be a fact that one party alleges and the other party controverts.

20. Basic concepts of the Law of Evidence 3. Relevant Facts: A fact is relevant if it has a probative value, that is, if it tends to persuade a court of law of the probability or possibility of the alleged fact. Evidence is said to be relevant to a case if it has a direct connection to the facts in issue and can be used to prove or disprove that fact.

21. Basic concepts of the Law of Evidence 4. Collateral Facts or Subordinate Facts: Collateral facts are of three kinds. The first type covers facts affecting the competence of a witness. A witness may be rendered incompetent to testify if for instance s/he is mentally handicapped. The second type of collateral fact covers the credibility of a witness. A witness may lose credibility if he gives evidence for one party who he has a certain bias towards.

22. Basic concepts of the Law of Evidence The last category of collateral evidence covers facts which must be proved as a condition precedent to the admissibility of certain facts of evidence tendered to prove a fact in issue or a relevant fact. A good example is the exception to the general rule that for a document to be admitted as evidence it must be produced in its original form, a copy can only be admissible as evidence of the contents on proof that the original has been destroyed or cannot be found after due search.

23. Basic concepts of the Law of Evidence 5. Prima facieEvidence: It is the kind of evidence which normally necessitates a finding that a fact has been proved if such evidence is not rebutted. 6. Oral Evidence: These are statements made by witnesses in Court. It refers to a persons testimony offered to prove the truth of the matter asserted

24. Basic concepts of the Law of Evidence 7. Direct and Indirect Evidence: Is that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and is distinguished from circumstantial evidence, which is often called "indirect.” Indirect evidence on the other hand refers to circumstantial evidence or evidence of relevant facts which we have already addressed above

25. Basic concepts of the Law of Evidence 8. Intrinsic and Extrinsic Evidence: Intrinsic evidence is that which is derivedfrom a document without anything to explain it. Extrinsic evidence is external evidence, orthat which is not contained in the body of anagreement, contract, and the like.

26. Basic concepts of the Law of Evidence 9. Parole Evidence: This refers to extrinsic evidence and is at times referred to as parole evidence rule. The rule stipulates that no extrinsic evidence shall be admissible to add or to subtract from the contents of a written document

27. Basic concepts of the Law of Evidence 10. PRIMARY AND SECONDARY EVIDENCE: Primary evidence is also referred to as best evidence. It is evidence of the highest quality available, as measured by the nature of the case rather than the thing being offered as evidence. For example, in documentary evidence, if the original document is available, it must be offered rather than a copy of the original document. Secondary evidence, That which is inferior to primary. Thus, a copy of an instrument, or oral evidence of its contents, is secondary evidence of the instrument and contents.

28. Basic concepts of the Law of Evidence 11. Opinion Evidence: This is where a witness is called to testify as to his or her belief, thought, inference or condition concerning a fact or facts. It is a conclusion formed from observable phenomena and mental impressions

29. ..End Any question?