Mian Ali Haider L.L.B., L.L.M (Cum Laude) U.K. Road To Law Of Evidence Mian Ali Haider L.L.B., L.L.M (Cum Laude) U.K.

Qanoon –e- Shahdat / Evidence Act 1872 / English Law of Evidence The Qanun-e-Shahadat Order 1984 repealed Evidence Act of 1872 Both are subjectively the same but objectively they are poles apart. The Object of Qanun-e-Shahadat Order is evident from its preamble which has never been the object of the repealed Evidence Act

With reference to the preamble, Intention of object of introduction this Order, as stated therein, is to bring the all laws of evidence in conformity with the injection of Islam as laid down in the Holy Quran and Sunnah

It is an admitted position that all Articles or the Order 1984 are substantially and subjectively mere reproduction of all sections of the repealed Act with exceptions of Article 3, Article 4 to 6(with reference to Hudood), addition of Article 44 and addition of a proviso to Article 42 if compared with corresponding sections of the repealed Act

However, principles of Islamic Law of evidence so long as they are not codified or adopted by Qanun-e-Shahadat, 1984 are not per se applicable Order. It apply to all judicial and quasi judicial proceedings.

WHAT IS EVIDENCE Evidence is information used in court to decide on the probability of an alleged fact. Facts open to proof are: Facts in issue Relevant facts Collateral facts

FACTS IN ISSUE Identifiable from the pleadings. Pleadings set out allegations, admissions and denials and thus define facts in issue A fact formally admitted is no longer a fact in issue Admitted in pleadings, interrogatories etc

RELEVANT FACTS Facts from which it is possible to infer the existence or non-existence of a fact which is in issue. This is called circumstantial evidence.

COLLATERAL FACTS Affects the credibility of a witness. Goes to weight of evidence Affects competence of witness Preliminary facts which are proved as a condition precedent to the admissibility of certain kinds of evidence.

TYPES OF EVIDENCE Testimony Direct testimony Hearsay evidence made orally Direct testimony Statements of a fact of which witness has first hand knowledge Hearsay Any out of court statement offered as evidence of the truth of its contents

TYPES OF EVIDENCE Original evidence Real evidence Documentary evidence Evidence of an out of court statement tendered for any relevant purpose other than that of proving the truth of the facts contained in it. Real evidence A material object produced for inspection Documentary evidence Produced as real or original evidence, or hearsay

TYPES OF EVIDENCE Primary evidence Secondary evidence Evidence of the best kind e.g. original documents Secondary evidence Evidence of inferior kind e.g. photostat copies Circumstantial evidence evidence of facts relevant to the existence or non-existence of a fact in issue

Evidence Something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.

Forms of Evidence circumstantial evidence direct evidence real evidence demonstrative evidence

Circumstantial Evidence: A form of evidence that allows a judge or jury to infer or accept a fact based on a set of known circumstances. A fact that can be used to infer another fact. Example: The cookie monster is found standing by an open cookie jar with cookie crumbs on his face. The circumstantial evidence would indicate that the cookie monster ate a cookie. However, he was not actually seen eating the cookie. Acid Test: You can believe the evidence without necessarily concluding that the accused is guilty. There are other possible inferences that could be made.

Direct Evidence: An eyewitness has seen or heard the alleged events, or some real evidence is provided which proves a fact in question. (The fact in question must prove the guilt of the accused.) COOKIES Example: Someone sees cookie monster eat a cookie out of the cookie jar. Acid Test: If you believe the evidence (ie. eye-witness testimony), then you are forced to conclude that the accused is guilty. There are no other inferences that can be made.

Real Evidence (physical): evidence that consists of physical objects that can be offered into evidence. Example: The cookie jar with the cookie monster’s fingerprints on it. Other typical examples… weapons, tools, tool markings, fingerprints, blood, hair, skin samples Acid Test: Can the item be labeled and deposited with the court?

Demonstrative evidence: Evidence that is prepared by an attorney in an effort to assist the trier of fact in visualizing or comprehending other evidence. Example: A map of the kitchen showing the cookie monster’s proximity and access to the cookie jar. Other typical examples… charts, maps, photographs, crime sketches Acid Test: Does the item itself actually prove the fact, or does it demonstrate a fact that must be proven using some other form of evidence? (Such as an eye witness or an expert witness.)

Exculpatory Evidence Evidence tending to establish a criminal defendant’s innocence.

Direct Evidence Evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.

Hearsay Evidence Testimony given by a witness who relates not what he or she knows, but what others have said. Therefore it is dependent on the credibility of someone other than the witness. (An out of court statement offered for the truth of the matter being asserted.)

Impeachment Evidence Evidence which is used to undermine (discredit) a witness’s credibility.

Prima Facie Evidence Evidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.

Burden of Proof A party’s duty to prove a disputed assertion or charge. Beyond a Reasonable Doubt Clear and Convincing Preponderance of the Evidence

Beyond a Reasonable Doubt Reasonable Doubt is the doubt that prevents one from being firmly convinced of a defendant’s guilt, or the belief that there is a real possibility that a defendant is not guilty.

Clear and Convincing Evidence indicating that the thing to be proved is highly probable or reasonably certain.

Preponderance of the Evidence The greater weight of the evidence, not necessarily established by the number of witnesses testifying, but by evidence that has the most convincing force.

EVIDENTIAL BURDEN The party bearing the legal burden usually bears the evidential burden Distinguish from prima facie Before evidence acceptable judge must be satisfied by prima facie evidence.

PRIMA FACIE EVIDENCE E.g. in order to admit tape recordings judge must satisfy himself that a prima facie case of originality has been made out be evidence which defines and describes the provenance and history of the recordings up to the moment they appear in court. (R v. Robson (1972)) Photographs and videos need only show proof that they refer to event in question

PRIVELEGE Legal professional privilege Certain communications between lawyer and client cannot be elicited from client Certain communications relating to pending or contemplated litigation between lawyer and client or third parties cannot be elicited from client Relates mainly to communications for giving legal advice and pending legal action

WITHOUT PREJUDICE Negotiations for settlement of an action are made without prejudice and therefore privileged Normally includes ‘without prejudice’ on documentation but does not have to, test is whether it is part of negotiation. Even if marked without prejudice and correspondence not part of settlement then statement of no use.

Evidentiary Tendency Inculpate: [verb] to incriminate Inculpatory Evidence: Evidence that would tend to incriminate the accused. Exculpate: [verb] to exonerate, vindicate, redeem Exculpatory Evidence: Evidence that would tend to exonerate the accused.

LEGAL BURDEN Those who allege must prove Statute may set out who has to prove what. Some acts shift onus of proof. Wording of contract would be important. In negative assertions those who allege still must prove.

LEGAL BURDEN Policy decisions may be made in difficult cases - onus placed on person who would find it less difficult to prove. Must prove on balance of probabilities, the evidence must show that the fact was more probable than not (Miller v. Minister of Pensions)

ADMIT/EXCLUDE FORMULA EVIDENTIARY ISSUES ARISE WHEN ONE SIDE WANTS TO ADMIT THE EVIDENCE AND THE OTHER WANTS TO EXCLUDE IT HOW THE LAWYER PREPARE ON CONTESTED ISSUES OFTEN DEPENDS UPON THE ANSWER TO 3 KEY QUESTIONS

INITIAL QUESTIONS What is the Evidence being offered to prove? Who is offering it? What form is it in?

AFTER ANSWERING 3 KEY QUESTIONS AFTER ANSWERING 3 KEY QUESTIONS – LAWYER MUST DO THE BARPH TEST THAT’S RIGHT – WHEN YOU THINK EVIDENCE – THINK BARPH

When you think evidence, think BARPH Best Evidence – Authentication – Relevance* – Privilege – State law Hearsay – *encompasses rules which may exclude relevant evidence for policy reasons

BURDEN OF PROOF Which party has to prove what? Legal burden requirement to prove a fact in issue Evidential burden the requirement to obtain sufficient evidence to justify a favourable finding of a fact in issue

LEGAL BURDEN Those who allege must prove Statute may set out who has to prove what. Some acts shift onus of proof. Wording of contract would be important. In negative assertions those who allege still must prove.

LEGAL BURDEN Policy decisions may be made in difficult cases - onus placed on person who would find it less difficult to prove. Must prove on balance of probabilities, the evidence must show that the fact was more probable than not (Miller v. Minister of Pensions)

ORGANISING INFORMATION In order to succeed in an action you need to prove or disprove facts logically. For example it has to be proved that a third party driver was negligent. Diagrams can assist with this approach Start with event to be proved and work downwards Check that all points can be proved on balance

Myths Regarding Evidence Myth #1: You can’t convict someone on circumstantial evidence alone. As there is often no witness to the crime, many convictions are based solely on circumstantial evidence. The probable conclusions based on circumstantial evidence can be very strong. There is no legal distinction between direct and circumstantial evidence as far as probative value - it is up to the trier of fact to decide how much weight to give to any particular evidence. Myth #2: Direct evidence (from an eyewitness) is more reliable than circumstantial evidence. Many studies have indicated that an eyewitness’ recollection of events is often quite inaccurate. Eyewitnesses often make positive errors (adding false details), and negative errors (forgetting correct details). Memory seems to be influenced by a witness’ expectations, beliefs, age, stress level, as well as the manner in which questions are posed to the witness.

END OF EVIDENCE

Hearsay Legalese for opening arguments made in court. Name of a chocolate factory in Pennsylvania. Holding of a belief that goes against generally accepted standards. The type of evidence that is often excluded, unless it falls within an accepted category.

Hearsay d. The type of evidence that is often excluded, unless it falls within an accepted category.

Leading question A question that suggests its answer. The first of a series of questions. A dispute of dancing partners. An important public issue.

Leading question A question that suggests its answer.

Cross-examination Inspection of a religious relic. Direct examination of a witness. Questioning of an adverse witness. Questioning of a party’s own witness.

Cross-examination c. Questioning of an adverse witness.

Expert Testimony Testimony of a witness who directly saw an event take place. Testimony about the good character of a defendant. Testimony of a witness who has substantial knowledge and experience in a particular field. Testimony given by a witness who has rehearsed so much that he or she sounds like an expert.

Expert Testimony c. Testimony of a witness who has substantial knowledge and experience in a particular field.