EVIDENCE NOTES

EVIDENCE (law)

The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation.
The quantum of evidence is the amount of evidence needed; the quality of proof is how reliable such evidence should be considered. This includes such concepts as hearsay, authentication, admissibility, reasonable doubt, and clear and convincing evidence.
There are several types of evidence, depending on the form or source. Evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit), exhibits (e.g., physical objects), documentary material, or demonstrative evidence, which are admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law).
When a dispute, whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to find in his or her favor. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy.
Legal scholars of the Anglo-American tradition, but not only that tradition, have long regarded evidence as being of central importance to the law.
In every jurisdiction based on the English common law tradition, evidence must conform to a number of rules and restrictions to be admissible. Evidence must be relevant – that is, it must be directed at proving or disproving a legal element.
However, the relevance of evidence is ordinarily a necessary condition but not a sufficient condition for the admissibility of evidence. For example, relevant evidence may be excluded if it is unfairly prejudicial, confusing, or the relevance or irrelevance of evidence cannot be determined by syllogistic reasoning – if/then logic – alone. There is also general agreement that assessment of relevance or irrelevance involves or requires judgments about probabilities or uncertainties. Beyond that, there is little agreement. Many legal scholars and judges agree that ordinary reasoning, or common sense reasoning, plays an important role. There is less agreement about whether or not judgments of relevance or irrelevance are defensible only if the reasoning that supports such judgments is made fully explicit. However, most trial judges would reject any such requirement and would say that some judgments can and must rest partly on unarticulated and un articulable hunches and intuitions. However, there is general (though implicit) agreement that the relevance of at least some types of expert evidence – particularly evidence from the hard sciences – requires particularly rigorous or in any event more arcane reasoning than is usually needed or expected. There is a general agreement that judgments of relevance are largely within the discretion of the trial court – although relevance rulings that lead to the exclusion of evidence are more likely to be reversed on appeal than are relevance rulings that lead to the admission of evidence.
According to Rule 401 of the Federal Rules of Evidence (FRE), evidence is relevant if it has the "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Federal Rule 403 allows relevant evidence to be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice", if it leads to confusion of the issues, if it is misleading or if it is a waste of time. California Evidence Code section 352 also allows for exclusion to avoid "substantial danger of undue prejudice." For example, evidence that the victim of a car accident was apparently a "liar, cheater, womanizer, and a man of low morals" was unduly prejudicial and irrelevant to whether he had a valid product liability claim against the manufacturer of the tires on his van (which had rolled over resulting in severe brain damage).

PRESENCE OR ABSENCE OF A JURY

The United States has a very complicated system of evidentiary rules; for example, John Wigmore's celebrated treatise on it filled ten volumes. James Bradley Thayer reported in 1898 that even English lawyers were surprised by the complexity of American evidence law, such as its reliance on exceptions to preserve evidentiary objections for appeal.
Some legal experts, notably Stanford legal historian Lawrence Friedman, have argued that the complexity of American evidence law arises from two factors: (1) the right of American defendants to have findings of fact made by a jury in practically all criminal cases as well as many civil cases; and (2) the widespread consensus that tight limitations on the admissibility of evidence are necessary to prevent a jury of untrained laypersons from being swayed by irrelevant distractions. In Professor Friedman's words: "A trained judge would not need all these rules; and indeed, the law of evidence in systems that lack a jury is short, sweet, and clear." However, Friedman's views are characteristic of an earlier generation of legal scholars. Many respected observers now reject the formerly-popular proposition that the institution of trial by jury is the main reason for the existence of rules of evidence even in countries such as the United States and Australia; they argue that are at work.

EXCLUSION OF EVIDENCE

UNFAIRNESS

Under English law, evidence that would otherwise be admissible at trial may be excluded at the discretion of the trial judge if it would be unfair to the defendant to admit it.
Evidence of a confession may be excluded because it was obtained by oppression or because the confession was made in consequence of anything said or done to the defendant that would be likely to make the confession unreliable. In these circumstances, it would be open to the trial judge to exclude the evidence of the confession under Section 78(1) of the Police and Criminal Evidence Act 1984 (PACE), or under Section 73 PACE, or under common law, although in practice the confession would be excluded under section 76 PACE.
Other admissible evidence may be excluded, at the discretion of the trial judge under 78 PACE, or at common law, if the judge can be persuaded that having regard to all the circumstances including how the evidence was obtained "admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
In the United States and other countries, evidence may be excluded from a trial if it is the result of illegal activity by law enforcement, such as a search conducted without a warrant. Such illegal evidence is known as the fruit of the poisonous tree and is normally not permitted at trial.

AUTHENTICATION

Certain kinds of evidence, such as documentary evidence, are subject to the requirement that the offer or provide the trial judge with a certain amount of evidence (which need not be much and it need not be very strong) suggesting that the offered item of tangible evidence (e.g., a document, a gun) is what the offer or claims it is. This authentication requirement has import primarily in jury trials. If evidence of authenticity is lacking in a bench trial, the trial judge will simply dismiss the evidence as unpersuasive or irrelevant.

WITNESSES

In systems of proof based on the English common law tradition, almost all evidence must be sponsored by a witness, who has sworn or solemnly affirmed to tell the truth. The bulk of the law of evidence regulates the types of evidence that may be sought from witnesses and the manner in which the interrogation of witnesses is conducted such as during direct examination and cross-examination of witnesses. Other types of evidentiary rules specify the standards of persuasion (e.g., proof beyond a reasonable doubt) that a trier of fact—whether judge or jury—must apply when it assesses evidence.
Today all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings, and all persons are also presumed to have a legal obligation to serve as witnesses if their testimony is sought. However, legal rules sometimes exempt people from the obligation to give evidence and legal rules disqualify people from serving as witnesses under some circumstances.
Privilege rules give the holder of the privilege a right to prevent a witness from giving testimony. These privileges are ordinarily (but not always) designed to protect socially valued types of confidential communications. Some of the privileges that are often recognized in various U.S. jurisdictions are spousal privilege, attorney–client privilege, doctor–patient privilege, state secrets privilege, and clergy–penitent privilege. A variety of additional privileges are recognized in different jurisdictions, but the list of recognized privileges varies from jurisdiction to jurisdiction; for example, some jurisdictions recognize a social worker–client privilege and other jurisdictions do not.
Witness competence rules are legal rules that specify circumstances under which persons are ineligible to serve as witnesses. For example, neither a judge nor a juror is competent to testify in a trial in which the judge or the juror serves in that capacity; and in jurisdictions with a dead man statute, a person is deemed not competent to testify as to statements of or transactions with a deceased opposing party.
Often, a Government or Parliamentary Act will govern the rules affecting the giving of evidence by witnesses in court. An example is the Evidence Act (NSW) 1995 which sets out the procedures for witnesses to follow in New South Wales, Australia.

HEARSAY

Hearsay is one of the largest and most complex areas of the law of evidence in common-law jurisdictions. The default rule is that hearsay evidence is inadmissible. Hearsay is an out of court statement offered to prove the truth of the matter asserted. A party is offering a statement to prove the truth of the matter asserted if the party is trying to prove that the assertion made by the declarant (the maker of the out-of-trial statement) is true. For example, prior to trial Bob says, "Jane went to the store." If the party offering this statement as evidence at trial is trying to prove that Jane actually went to the store, the statement is being offered to prove the truth of the matter asserted. However, at both common law and under evidence codifications such as the Federal Rules of Evidence, there are dozens of exemptions from and exceptions to the hearsay rule.

CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence is indirect evidence that implies the existence of the main fact in question, but does not in itself prove it. The existence of the main fact is deduced from the indirect or circumstantial evidence by a process of probable reasoning. The introduction of a defendant’s fingerprints or DNA sample is examples of circumstantial evidence. The fact that a defendant had a motive to commit a crime is also circumstantial evidence. In an important sense, however, all evidence is merely circumstantial because no evidence can prove a fact in the absence of one or more inferences.

BURDENS OF PROOF

Different types of proceedings require parties to meet different burdens of proof, the typical examples being beyond a reasonable doubt, clear and convincing evidence, and preponderance of the evidence. Many jurisdictions have burden-shifting provisions, which require that if one party produces evidence tending to prove a certain point, the burden shifts to the other party to produce superior evidence tending to disprove it.
One special category of information in this area includes things of which the court may take judicial notice. This category covers matters that are so well known that the court may deem them proved without the introduction of any evidence. For example, if a defendant is alleged to have illegally transported goods across a state line by driving them from Boston to Los Angeles, the court may take judicial notice of the fact that it is impossible to drive from Boston to Los Angeles without crossing a number of state lines. In a civil case, where the court takes judicial notice of the fact, that fact is deemed conclusively proved. In a criminal case, however, the defense may always submit evidence to rebut a point for which judicial notice has been taken.

EVIDENTIAL RULES STEMMING FROM OTHER AREAS OF LAW

Some rules that affect the admissibility of evidence are nonetheless considered to belong to other areas of law. These include the exclusionary rule of criminal procedure, which prohibits the admission in a criminal trial of evidence gained by unconstitutional means, and the parole evidence rule of contract law, which prohibits the admission of extrinsic evidence of the contents of a written contract. This practice is very common in today's complicated world.

EVIDENCE AS AN AREA OF STUDY

In countries that follow the civil law system, evidence is normally studied as a branch of procedural law.
All American law schools offer a course in evidence, and most require the subject either as a first year class, or as an upper-level class, or as a prerequisite to later courses. Furthermore, evidence is heavily tested on the Multistate Bar Examination (MBE) - approximately one-sixth of the questions asked in that test will be in the area of evidence. The MBE predominantly tests evidence under the Federal Rules of Evidence, giving little attention to matters on which the law of different states is likely to be inconsistent.

TAMPERING, FALSIFICATION, AND SPOLIATION

Acts that conceal, corrupt, or destroy evidence can be considered spoliation of evidence and/or tampering with evidence. Spoliation is usually the civil-law/due-process variant, may involve intent or negligence, may affect the outcome of a case in which the evidence is material, and may or may not result in criminal prosecution. Tampering is usually the criminal law variant in which a person alters, conceals, falsifies, or destroys evidence to interfere with a law-enforcement, governmental, or regulatory investigation, and is usually defined as a crime. Parallel construction is the creation of an untruthful, but plausible, explanation for how the evidence came to be held, which hides its true origins, either to protect sources and methods used, or to avoid the evidence being excluded as unlawfully obtained. Depending on the circumstances, acts to conceal or destroy evidence or misrepresent its true origins might be considered both tampering and spoliation.

HEARSAY IN ENGLISH LAW

The hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005.
Section 114 of the Criminal Justice Act 2003 defines hearsay evidence as a statement not made in oral evidence in criminal proceedings and admissible as evidence of any matter stated but only if certain conditions are met, specifically where:

• It is in the interests of justice to admit it (see section 114(1)(d))
• The witness cannot attend (see section 116)
• The evidence is in a document (see section 117)
• The evidence is multiple hearsay (see section 121)

The meaning of “statements” and “matter stated” is explained in section 115 of the 2003 Act. “Oral evidence” is defined in section 134(1) of that Act.

HISTORY OF THE RULE

The rules of hearsay began to form properly in the late seventeenth century and had become fully established by the early nineteenth century. The issues were analysed in substantial detail in Wright v Doe d Tatham. The technical nature of the discussion in Doe d Tatham inhibited much reasoned progress of the law, whose progress (in the form of judicial capacity to reform it) ended not long afterwards. Later attempts to reform through the common law it got little further, with Lord Reid in Myers v DPP saying
If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations; that must be left to legislation: and if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of parts of the existing law of hearsay susceptible of similar treatment, ... The only satisfactory solution is by legislation following on a wide survey of the whole field ... A policy of make do and mend is not appropriate.
There was some statutory reform in the nineteenth century (see Bankers' Books Evidence Act), and later the Evidence Act 1938 made some further if cautious reforms. The state of the hearsay rules were regarded as 'absurd' by Lord Reid and Lord Diplock.
The Law Commission and Supreme Court committee provided a number of reports on hearsay reform, prior to the Civil Evidence Acts 1968 and 1972.
The Criminal Justice Act 2003 ("2003 Act"), which went into force on 4 April 2005, introduced significant reforms to the hearsay rule, implementing (with modifications) the report by the Law Commission in Evidence in Criminal Proceedings: Hearsay and Related Topics (LC245), published on 19 June 1997. Previously, the Criminal Justice Act 1988 carved out exceptions to the hearsay rule for unavailable witnesses and business documents. These were consolidated into the 2003 Act.

REASONING BEHIND THE RULE

The reasoning behind the hearsay rule can be seen by comparing the acceptance of direct evidence and hearsay. Direct evidence is given under oath (with potential criminal liability for perjury if the testimony is subsequently proven false), in the presence of the court and jury, and may be cross-examined. In adducing direct evidence (that is, recollection of a witness in court) the court considers how the witness would have perceived the event at the time, potential ambiguities, and the witness's sincerity. These can be tested in cross-examination.
A statement reported in hearsay is not generally subject to these safeguards. The person making the original statement was not testifying under oath, and was not subject to cross-examination. Even assuming that the witness reporting the original statement does so completely truthfully, it remains possible that the person making the original statement was lying, joking, or exaggerating. It is also possible that the witness testifying at trial misunderstood the original statement. The court has no way to assess these possibilities, except via the testimony of the witness reporting the hearsay.
Although the hearsay rule is directed only at references to statements asserted for the truth of their contents, the courts were alive to the dangers of circumstantial as well as direct evidence:
the hearsay rule operates in two ways: (a) it forbids using the credit of an absent declarant as the basis of an inference, and (b) it forbids using in the same way the mere evidentiary fact of the statement as having been made under such and such circumstances.
The nature of the genuine danger of allowing a jury to make an inappropriate inference about the nature of such evidence has led to misunderstandings about the nature of hearsay.
A different rationale can be found in the requirement of justice that the accused is entitled to face his or her opponents. This principle finds support in the European Convention on Human Rights (articles 6(1) and 6(3)(d)) and, in the United States the sixth amendment of its Constitution (its principles tracing back to Raleigh's Trial).

CIVIL PROCEEDINGS

Hearsay is generally admissible in civil proceedings. This is one area in which English law differs dramatically from American law; under the Federal Rules of Evidence, used in U.S. federal courts and followed practically verbatim in almost all states, hearsay is inadmissible in both criminal and civil trials barring a recognized exception.
The law concerning hearsay in civil proceedings was reformed substantially by the Civil Evidence Act 1995 ("the 1995 Act") and is now primarily upon a statutory footing. The Act arose from a report of the Law Commission published in 1993 which criticized the previous reforming statutes' excessive caution and cumbersome procedures. Section 1 of the Act says
In civil proceedings evidence shall not be excluded on the ground that it is hearsay
This includes hearsay of multiple degree (that is, hearsay evidence of hearsay evidence: for example "Jack told me that Jill told him that she went up the hill").
Other provisions of the 1995 Act preserve common law rules relating to public documents, published works of a public nature and public records. The common law in respect of good and bad character, reputation or family tradition is also preserved.
The Act moves some of the focus of hearsay evidence to weight, rather than admissibility, setting out considerations in assessing the evidence (set out in summary form):

• Reasonableness of the party calling the evidence to have produced the original maker
• Whether the original statement was made at or near the same time as the evidence it mentions
• Whether the evidence involves multiple hearsay
• Whether any person involved had any motive to conceal or misrepresent matters
• Whether the original statement was an edited account, or was made in collaboration with another, or for a particular purpose
• Whether the circumstances of the hearsay evidence suggest an attempt to prevent proper evaluation of its weight

CRIMINAL PROCEEDINGS

STATUTORY DEFINITION

The Criminal Justice Act 2003 defines hearsay as statements "not made in oral evidence in the proceedings" being used "as evidence of any matter stated".

GENERAL RULE

STATUTORY EXCEPTIONS

UNAVAILABLE WITNESSES

A witness's testimony may be read in court if the witness is unavailable to attend.
To be admissible, the evidence must be otherwise admissible, and the maker of the statement identified to the court's satisfaction. Additionally, the absent person making the original statement must fall within one of five categories—they are:

• Dead
• Unfit to be a witness because of bodily or mental condition
• Outside the United Kingdom and it is not reasonably practicable to secure their attendance
• Cannot be found, and reasonably practicable steps to find them have been taken
• Afraid to testify or continue to testify

In the case of absence through fear, additional safeguards are imposed prior to the statement's admission. The court must be satisfied it is in the interests of justice, particularly considering the statements contents, whether special measures (screens in court, or video live-link) would assist, and any unfairness to the defendant in not being able to challenge the evidence.
A party to the proceedings (that is, either the prosecution or defence) who causes any of the above five conditions to occur to stop a witness giving evidence, cannot then adduce the hearsay evidence of it.
The scope of this rule has been considered in cases when much of the prosecution case involves evidence by a witness who is absent from court. In Luca v Italy, in the European Court of Human Rights, it was held that a conviction solely or decisively based upon evidence of witnesses which the accused has had no opportunity to examine breached Article 6 of the Convention (right to a fair trial). However in R v Arnold, in the Court of Appeal, it was said this rule would permit of some exceptions, otherwise it would provide a licence to intimidate witnesses - though neither should it be treated as a licence for prosecutors to prevent testing of their case. Each application had to be weighed carefully.

BUSINESS DOCUMENTS

Documents created in the course of a trade, occupation, profession or public office (referred to as "business") can be used as evidence of the facts stated therein.
To be admissible, the evidence referred to in the document must itself be admissible. The person supplying the information must have had personal knowledge of it (or be reasonably supposed to have had), and everyone else through whom the information was supplied must have also been acting in the course of business.
If the business information was produced in the course of a domestic criminal investigation, then either one of the above five categories (for absent witnesses) must apply, or the person producing the statement cannot be expected now to have any recollection of the original information. A typical example of this is doctor's notes in relation to an injured person, which is then adduced as medical evidence in a criminal trial. Previous criminal records can be adduced (if otherwise admissible) under this section, but not normally any further details about the method of commission, unless it can be demonstrated that the data inputter had the appropriate personal knowledge.

PREVIOUS CONSISTENT AND INCONSISTENT STATEMENTS

Sometimes during the testimony of a witness, the witness may be questioned about statements he previously made outside court on an earlier occasion, to demonstrate either that he has been consistent or inconsistent in his account of events. The Act did not change the circumstances in which such statements could become admissible in evidence (which are still prescribed in the Criminal Procedure Act 1865), but it did change the evidential effect of such statements once admitted. Formerly, such statements were not evidence of the facts stated in them (unless the witness agreed with them in court): they only proved that the witness had kept his story straight or had changed his story, and so were only evidence of his credibility (or lack of it) as a witness. They were not hearsay. Under the 2003 Act, however, such statements are now themselves evidence of any facts stated in them, not just of credibility, and so are now hearsay.

PRESERVED COMMON LAW EXCEPTIONS

Section 118 of the 2003 Act preserved the following common law rules and abolished the remainder:

• PUBLIC INFORMATION as evidence of the facts stated therein:
• published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps)
• public documents (such as public registers, and returns made under public authority with respect to matters of public interest)
• records (such as the records of certain courts, treaties, Crown grants, pardons and commissions)
• evidence relating to a person's age or date or place of birth may be given by a person without personal knowledge of the matter
• REPUTATION AS TO CHARACTER - evidence of a person's reputation is admissible for the purpose of proving his good or bad character
• REPUTATION OR FAMILY TRADITION - evidence of reputation or family tradition is admissible to prove or disprove (and only so far as it does so):
• pedigree or the existence of a marriage (or civil partnership following the Civil Partnership Act 2004)
• the existence of any public or general right
• the identity of any person or thing
• RES GESTAE - statements are admissible if:
• the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,
• the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or
• The statement relates to a physical sensation or a mental state (such as intention or emotion).
• CONFESSIONS - all rules relating to the admissibility of confessions or mixed statements
• ADMISSIONS BY AGENTS etc. as evidence of facts stated:
• an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated, or
• a statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.
• COMMON ENTERPRISE - a statement made by a party to a common enterprise is admissible against another party to the enterprise
• EXPERT EVIDENCE

AGREEMENT

Hearsay evidence is permitted by agreement between all parties in the proceedings. No such provision existed before the coming into force of the 2003 Act.

INTERESTS OF JUSTICE

There are some older cases which threw the rigidities of the hearsay rule into sharp relief. In Sparks’ v R an American airman was accused of indecently assaulting a girl just under the age of four. Evidence that the four-year-old victim (who did not give evidence herself) had told her mother "it was a cultured boy" was held not to be admissible (not being res gestae either) against the defendant, who was white.
In R v Blastland (1986) the House of Lords held in a murder case that highly self-incriminating remarks made by a third party, not at the trial, could not be admitted in evidence (the remarks mentioning the murder of a boy whose body had not yet been independently discovered).
Under the 2003 Act, any hearsay evidence whether or not covered by another provision may be admitted by the court if it is "in the interests of justice" to do so. This provision is sometimes known as the "safety valve".
The Act sets out criteria in determining whether the interests of justice test are met, and provides for consideration of other relevant factors:

• How much probative value (that is, use in determining the case) the statement has (assuming it to be true), or its value in understanding other evidence;
• What other relevant evidence has been or can be given;
• Its importance in the context of the case as a whole;
• Circumstances in which the statement was made;
• How reliable the maker of the statement appears to be;
• How reliable the evidence in the statement appears to be;
• Whether oral evidence can be given and, if not, why not;
• The difficulty involved in challenging the statement;
• The extent to which that difficulty would prejudice the party facing it.

·         What are the rules of evidence?

·         by Find Law UK

·         Here is an overview of some of the key concepts that affect the use of evidence at trial in civil and criminal matters.

·         If you need further help concerning a court case you can seek legal advice using our solicitor directory.

·         RELEVANCE AND CONTROL BY THE COURT

·         Perhaps the most basic rule of evidence is that for a party to introduce an item of evidence at trial, it must be relevant to some issue that is before the court.

·         Where the relevance of an item is not obvious, the party introducing it must explain how it is relevant.

·         The court has control over the flow of evidence in a case. It can request that the parties present evidence relating to particular issues, and can also limit the use of evidence as well as the extent of cross-examination.

·         WITNESSES

·         In general, witnesses are the means by which parties introduce evidence at trial. The court rules generally require that a party prepare witness statements for the witnesses it plans to call at trial.

·         When a witness appears at trial, his testimony is limited to what appears in his witness statement.

·         The other party has the right to cross-examine the witness, and the party calling the witness has the right to question his witness further about any issues raised on cross-examination.

·         Witness statements can have exhibits such as documents or photographs, models or other physical evidence.

·         In general, the opinion evidence of a witness is not admissible in court. Witnesses are to provide factual evidence only.

·         A witness may, however, relate relevant facts as he perceived them. For instance, a witness generally will be permitted to make statements such as “the truck’s speed was around 30 miles per hour” or “Mr Smith appeared to be drunk”.

·         EXPERT WITNESSES

·         There is an exception to the “no opinions” rule for expert witnesses, who are allowed to give opinion evidence as to relevant matters on which they are qualified to give expert evidence.

·         So, for example, in a clinical negligence case an expert witness will be permitted to give an opinion as to whether a particular action by the defendant harmed the claimant — whereas a non-expert would not be allowed to do so.

·         A corollary to the rule allowing experts to present opinion evidence is the fact an expert witness has a duty to assist the court, which overrides any obligation he may have to the party who instructed him.

·         In fact, in some cases, the court will require the parties to instruct a single, joint expert to opine on particular matters relevant to the case.

·         HEARSAY EVIDENCE IN CIVIL PROCEEDINGS

·         Hearsay can sometimes be a difficult concept to understand. Essentially, hearsay is a statement not made by a witness in court that is, nevertheless, used in court to prove the matter asserted in the statement.

·         Sometimes, an out-of-court statement is used in court, but not for the purpose of proving the truth of the matter asserted in the statement — when used in that way, the out of court statement is not hearsay.

·         For example, if a witness says in court “Nurse Adams told me she saw Surgeon Jones remove the patient’s liver instead of the gall bladder” that statement would be hearsay if it were offered in a clinical negligence case against Surgeon Jones for removing the claimant’s liver instead of his gall bladder.

·         On the other hand, if Surgeon Jones were suing Nurse Adams for defamation, it would not be hearsay, since the witness’s testimony is being used to prove that Nurse Adams made a defamatory statement rather than that Surgeon Jones messed up a gall bladder operation.

·         In civil proceedings, hearsay evidence can be admissible if the party offering the hearsay evidence gives the other party prior notice of the evidence and his intent to rely on it even though it is hearsay.

·         The other party then has the right to call as a witness the person who made the hearsay statement, and to cross-examine him about it (although in practice it will often happen that the hearsay is being used because the witness is unable to appear).

 

·         CHARACTER EVIDENCE IN CRIMINAL CASES

·         In criminal cases, the rules on what evidence is admissible to prove a defendant’s bad character are different from the rules applicable to other witnesses.

·         Evidence of bad character is defined as evidence of or a disposition toward misconduct — other than evidence having to do with the crime being prosecuted in the case or the conduct of the case.

·         There are a number of circumstances in which the prosecution can introduce evidence of the defendant’s bad character.

·         For instance, such evidence can be introduced where the parties agree to it, where it is relevant to an important matter in issue between the defendant and the prosecution, or where the defendant has made an attack on another person’s character.

·         If the prosecution intends to introduce evidence of the defendant’s bad character, it has to give prior notice to the court and to the defendant.

·         The court can also permit the introduction of evidence of the bad character of a witness other than the defendant. Unless the parties agree it, the party wishing to introduce such evidence must apply to the court for leave to do so.

·         The court will then make a determination as to whether such evidence would have substantial probative value.

·         PHYSICAL EVIDENCE

·         A party can introduce physical evidence, either as an exhibit to a witness statement or in some cases as a separate item of evidence on its own.

·         Physical evidence comes in many different forms, ranging from incriminating objects (e.g., the murder weapon, the defective ladder, etc) to maps, charts, drawings, sound and video recordings, photographs, etc.

·         In many cases, it is important to preserve physical evidence so that it is not tampered with, contaminated or otherwise spoiled prior to trial, and the party proposing to offer such evidence will need to arrange for this.

·         JUDICIAL NOTICE AND ADMITTED FACTS

·         Ordinarily, the court will take judicial notice of matters that are common knowledge, rather than require a party to prove such matters. In addition, the parties will often admit certain facts in their statements of case, so that those facts do not have to be proven at trial.

·         GETTING HELP WITH LITIGATION

·         A solicitor who specialises in litigation will have a thorough understanding of the rules of evidence and how they will work in your particular case.

What is admissible evidence?

Admissible evidence in a court of law is any statement, documentary, or tangible evidence that may be introduced to the judge or jury in order to establish or bolster a point put forward by a party to the proceedings.
Generally, in order for evidence to be admissible it must be relevant, without being prejudicial, and reliable.

ADMISSIBLE EVIDENCE IN CIVIL PROCEEDINGS

Any evidence, to be admissible, must be relevant. The rules on evidence contained primarily within Parts 32 and 33 of the Civil Procedure Rules 1998 give the court power to control the evidence brought before it. For example, the court may decide, prior to trial, that a particular issue between the parties is no longer important and can therefore make an order excluding any evidence that the parties intended to use in relation to that particular issue.
There are some exceptions to the rule that any relevant evidence is admissible. This includes:

OPINION EVIDENCE

The general rule is that opinion evidence is not admissible, as the function of a witness is to relate the facts to the court so the court can draw its own conclusions. However, there are some exceptions to this rule, when a witness makes a statement of opinion as a way of conveying relevant facts personally perceived by him, for example, that “David was drunk”.

HEARSAY EVIDENCE

Hearsay evidence may be an oral or written statement made outside the courtroom, which is then repeated to the court in order to prove the matter stated out of court. Whilst the law provides that, in civil proceedings, evidence shall not be excluded on the ground that it is hearsay (i.e. it is admissible), a party proposing to bring hearsay evidence must notify any other party of that fact and, on request, give particulars of, or relating to, the evidence.

ADMISSIBLE EVIDENCE IN CRIMINAL PROCEEDINGS

HEARSAY EVIDENCE may be admissible in criminal proceedings if it satisfies certain requirements. These are:

• if any statutory provision makes it admissible (e.g. cases where a witness is unavailable);
• if any rule of law preserved by section 118 of the Criminal Justice Act (CJA) 2003 makes it admissible;
• if all parties to the proceedings agree to it being admissible; or
• if the court is satisfied that it is in the interests of justice for it to be admissible.

HEARSAY IN CRIMINAL CASES

·         In criminal cases, the general rule is that hearsay evidence is not admissible. But as in civil cases, there is a procedure whereby a party can give the other party notice of its intent to use hearsay evidence.

·         If given such notice, the other party has a right to object to the use of such evidence by applying to the court for a decision as to whether the evidence should be admitted.

·         There are a large number of exceptions to the rule against hearsay. For example, the court can allow hearsay evidence to be admitted where it is a statement that was made by a person who has since died or become mentally incompetent.

·         There are also exceptions for public records, certain types of business documents, certain admissions or confessions, and a variety of other types of evidence that would otherwise be hearsay.

  CONFESSION EVIDENCE is any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not. A confession made by a defendant prior to his trial will be admissible in evidence at trial, although confessions made out of court are admissible in evidence only against the person making the confession and not those who may be implicated in that confession.
Bad character evidence is defined as evidence of, or a disposition towards, misconduct, other than evidence connected with the offence for which the defendant has been charged. Evidence of a defendant’s bad character may be raised and admissible at trial through one of more of seven ‘gateways’ which are set out in s101(1) of the CJA 2003.
The court may exercise its discretion to exclude prosecution evidence in situations where the police have not acted inappropriately, but there are factors personal to the defendant that would make it unfair for the evidence to be admitted at trial. However, most occasions whereby the court excludes evidence will involve the police having breached either the Police and Criminal Evidence Act 1984 or the Codes of Practice.