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Law of Evidence Law of Evidence Teaching Material Prepared by: Kahsay Debesu, (LL.B, Lecture) & Andualem Eshetu( LL.B, Assistant Lecturer) Prepared under the Sponsorship of the Justice and Legal System Research Institute 2009 Table of Contents Justified Font type: Times New Roman Font Size: 12 (Content) 14 and Bold and Center (Chapter Title) 12 and Bold (Headings) Line Spacing: 1.5 lines Single space between paragraphs TABLE OF CONTENTS page CHAPTER: Evidence law General Introduction …………………………………….1 1.1 Meaning, Nature and purpose of Evidence law……………………………………….2 1.1.1 Evidence Law defined……………………………………………………....2 1.1.2 Nature of Evidence law…………………………………………………. …5 1.1.3 Purpose /significance of Evidence law…………………………………..…8 1.2 Development of Evidence law…………………………………………………….....11 1.3 Evidence in civil and common law legal systems …………………………………..13 1.4 Evidence in Ethiopia ………………………………………………………………...22 1.5 Evidence law in civil and criminal cases ……………………………………………25 1.6 Classification of evidence……………………………………………………………30 Chapter two: Facts, which may be proved other than by evidence ………………...33 2.1 Admitted facts……………………………………………………………………….34 2.1.1 Limitations of Admissions…………………………………………………..35 2.1.2 Classification of Admission: formal and informal admissions ……………...38 2.1.3 Types of Admissions: Judicial and Extra- Judicial ……………………….....39 2.1.3.1 Judicial Admissions civil and criminal cases …………………………40 2.1.3.2. Extra- Judicial Admission: Civil and criminal case………………….51 2.2 Presumption ………………………………………………………………………..54 2.2.1 General introduction: basic fact and presumed fact …………………………….54 2.2.2 Presumption of fact……………………………………………………………...58 2.2.3. Presumption of Law ……………………………………………………………60 2.2.3.1. Irrefutable Presumption ………………………………………………..61 2.2.3.2 Reputable presumptions…………………………………………………62 2.2.3.3 Permissive presumptions ………………………………………………66 2.3 Judicial Notice ……………………………………………………………………....68 2.3.1 Judicial notice of adjudicative facts …………………………………………..69 2.3.2 Judicial notice of law …………………………………………………………73 Chapter three: Relevance and admissibility of evidences …………………………..85 3.1 Facts in issue…………………………………………………………………………86 3.2 Relevant facts………………………………………………………………………...89 3.3 Facts Relevant to facts in issue……………………………………………………....93 3.4 Relevancy of Confession …………………………………………………………..100 3.5 Relevancy of Circumstantial Evidence……………………………………………..105 3.6 Relevancy of similar Occurrence…………………………………………………...107 3.7 Relevancy of Judicial decision……………………………………………………..110 3.8 Relevancy of character evidence…………………………………………………...114 3.9. Relevant but inadmissible facts……………………………………………………118 3.9.1 Admissibility: General………………………………………………………..118 3.9.2 Public policy and privilege…………………………………………… ……..120 CHAPTER FOUR: ORAL EVIDENCE…………………………………………….126 4.1 Introduction…………………………………………………………………………126 4.2 Oral evidence: Definition…………………………………………………………...127 4.3 Importance of Oral Evidence ……………………………………………………128 4.4 Nature and Development of Oral Evidence in Different Legal Systems ………130 4 .4.1 The Traditional Ethiopian Oral Litigation……………………………………132 4.5 Competence of witnesses……………………………………………………...135 4.5.1 Grounds of incompetence………………………………………………………..135 4.5.1.1 Mental incapacity ………………………………………………………..136 4.5.1.2 Physical incapacity………………………………………………………137 4.5.1.3 Legal interdiction (Conviction of a crime)……………………………...138 4.5.1.4 Interest in the out come of the case as ground of incompetence……...138 4.6. Examination of witness ……………………………………………………………139 4.6.1 Examination-in-chief……………………………………………………………139 4.6.2 Cross examination ………………………………………………………………141 4.6.3 Re-examination …………………………………………………………………143 4.7 Hearsay evidence…………………………………………………………………...144 4.7.1 Definition of hearsay………………………………………………………….144 4.7.2 Justification for exclusion of hearsay statements …………………………….145 4.7.3 Exception to hearsay evidence ……………………………………………….147 4.8 Exclusionary rule: Privileges………………………………………………………151 4.8.1 Policies underlying privileges…………………………………………………151 4.8.2 Types of privileges……………………………………………………………..153 4.8.2.1 He right against self-incrimination…………………………………………154 4.8.2.2Governmental privileges……………………………………………………154 4.8.2.3 Professional confidential154……………………………………………….156 4.8.2.4 Other privileges… …………………………………………………………161 CHAPTER FIVE: REAL EVIDENCE………………………………………………164 5.1 Demonstrative evidence……………………………………………………………165 5.2. Documentary evidence…………………………………………………………….172 5.3 Authentication of Documentary Evidence …………………………………………173 5.3.1 Modes of authentication ………………………………………………………173 5.4. Best evidence rule………………………………………………………………..176 5.5 Proof of contents of documents…………………………………………………….177 CHAPTER SIX: BURDEN AND STANDARD OF PROOF………………………181 6.1 Meaning and concept of burden of proof……………………………………...……184 6.1.1 Burden of production………………………………………………………......185 6.1.2 Burden of persuasion ………………………………………………………...185 6.1.3 Burden of proof under the evidence law of Ethiopia………………………….187 6.1.4 Burden of proof in case of presumptions……………………………………..194 6.2 Standard of proof…………………………………………………………………...195 6.2.1 In civil cases…………………………………………………………………..196 6.2.2 In criminal cases …………………………….. ……………………………..197 References………………………………………………………………………………204 Chapter One: Evidence law General Introduction Introduction The first chapter of this teaching material deals with the introductory or preliminary matters such as the definition, purpose and nature of evidence law. Of also presents also study the common law and civil law approaches to evidence law with the various types of evidences. Here it shows the differences between two legal systems in their approach to evidence law. Moreover, it discusses the evidence law in Ethiopia and the where about of evidence rules and principles in Ethiopia in relation with the general rules of evidence. In addition the chapter reflects the fundamental distinction between the operations of the rules of evidence in the civil context from the criminal context. Finally, the chapter tries to give a highlight on classification of evidence and who show evidence can broadly be classified be it oral, documentary evidence or otherwise. Chapter Objectives At the end of this unit, the students are expected to be able to • describe what law of evidence is all about • explain the significance of evidence • identity the differences between the civil law and common law approach to law of evidence and the Ethiopian position • discuss the concept of evidence law in civil and criminal cases • discuss the type of evidences 1 1.1 Meaning, Nature and purpose of Evidence law 1.1.1 Evidence Law defined What is evidence law? Before dealing with “evidence law”, it is important to discuss about the concept of “evidence” in general since evidence and law of evidence are two different things. The word “ evidence” is originated from a Latin term “evidentia” which means to show clearly, to make clear to the sight to discover clearly certain, to ascertain or to prove. Thus, evidence is something, which serves to prove or disprove the existence or non- existence of an alleged fact. The party who alleges the existence of a certain fact has to prove its existence and the party, who denies it, has to disprove its existence or prove its non-existence. However, all facts traditionally considered, as evidence may not be evidence in the eyes of evidence law. Rather, evidence is something presented before the court for the purpose of proving or disproving an issue under question. In other words, evidence is the means of satisfying the court of the truth or untruth of disputed fact between the parties in their pleadings. Draft Evidence Rules (DER) defines evidence, as “ a means whereby any alleged matter of fact, the truth of which is submitted to investigation, is proved and includes statements by accused persons, admission, Judicial notice, presumptions of law, and observation by the court in its Judicial capacity”. This definition may be more than what you think to be evidence. However, even though the kinds of evidences enumerated under Rule 3 of DER are not exhaustive, it failed to cite “documentary evidence” which is considered as one of reliable evidences, especially in civil cases, as one types of evidence. This seems the result of poor drafts' man ship. Activity Discuss the literary meaning of evidence in comparison with evidence in the eyes of the law? 2 When we come to the meaning of evidence law, different writers defines it according to their own perceptions but with similar messages. The difference is one defines in amore elaborated way while others do not. For instance, Mc. Cormick defines evidence law as “… the system of rules and standards by which the admission of proof at the trial of a lawsuit is regulated” But this definition is not as such very helpful especially to a beginner, because, it fails to incorporate what things are going to be dealt with by the course. The title of the course, is the law of evidence. That does not mean only the rules concerning whether a given piece of information is admissible or not, but also such questions as what happens if there is no evidence on a given point? How much evidence, if any must a party introduces to prevent a court from ruling against him on factual proposition? What are the roles of the judge in evaluating the evidence and the like. To this effect, Robert Arthur Melin [here after referred as Melin], have made an attempt to define evidence law in a more comprehensive way. He defined it as follows. The law of evidence is the body of legal
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