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

Road To Law Of EvidenceRoad To Law Of Evidence

Mian Ali HaiderL.L.B., L.L.M (Cum Laude)

U.K.

Mian Ali HaiderL.L.B., L.L.M (Cum Laude)

U.K.

Qanoon –e- Shahdat / Evidence Act 1872 / English Law of

Evidence

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The Qanun-e-Shahadat Order 1984 repealed Evidence Act of 1872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The Object of Qanun-e-Shahadat Order is evident from its preamble which has never been the object of the repealed Evidence Act

The Qanun-e-Shahadat Order 1984 repealed Evidence Act of 1872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The Object of Qanun-e-Shahadat Order is evident from its preamble which has never been the object of the repealed Evidence Act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

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that all Articles or the Order 1984 are substantially and subjectively mere reproduction of all sections of the repealed Act with exceptions of Article 3, Article 4 to 6(with reference to Hudood), addition of Article 44 and addition of a proviso to Article 42 if compared with corresponding sections of the repealed Act

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that all Articles or the Order 1984 are substantially and subjectively mere reproduction of all sections of the repealed Act with exceptions of Article 3, Article 4 to 6(with reference to Hudood), addition of Article 44 and addition of a proviso to Article 42 if compared with corresponding sections of the repealed Act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

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 EVIDENCEWHAT 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

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 ISSUEFACTS 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

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 FACTSRELEVANT 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.

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 FACTSCOLLATERAL 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.

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 EVIDENCETYPES OF EVIDENCE

Testimony 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

Testimony 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


Original 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

Original 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


Primary 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

Primary 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

EvidenceEvidence

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

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

Forms of EvidenceForms of Evidence

• real evidencereal evidence

• circumstantial evidencecircumstantial evidence

• direct evidencedirect evidence

• demonstrative evidencedemonstrative evidence

Circumstantial Evidence:Circumstantial Evidence: A form of evidence that allows A form of evidence that allows a judge or jury to infer or accept a fact based on a set of 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 known circumstances. A fact that can be used to infer another fact.another fact.

Acid Test:Acid Test: You can believe the evidence without You can believe the evidence without necessarily concluding that the accused is guilty. There necessarily concluding that the accused is guilty. There are other possible inferences that could be made.are other possible inferences that could be made.

Example:Example: The cookie The cookie monster is found monster is found standing by an open standing by an open cookie jar with cookie cookie jar with cookie crumbs on his face. crumbs on his face. The circumstantial The circumstantial evidence would evidence would indicate that the indicate that the cookie monster ate a cookie monster ate a cookie. However, he cookie. However, he was not actually seen was not actually seen eating the cookie. eating the cookie.

Direct Evidence:Direct Evidence: An eyewitness has seen or heard the An eyewitness has seen or heard the alleged events, or some real evidence is provided which alleged events, or some real evidence is provided which proves a fact in question.proves a fact in question. (The fact in question must (The fact in question must prove the guilt of the accused.)prove the guilt of the accused.)

Example:Example: Someone sees Someone sees cookie monster cookie monster eat a cookie out eat a cookie out of the cookie of the cookie jar. jar.

Acid Test:Acid Test: If you believe the evidence (ie. eye-witness If you believe the evidence (ie. eye-witness testimony), then you are forced to conclude that the testimony), then you are forced to conclude that the accused is guilty. There are no other inferences that can accused is guilty. There are no other inferences that can be made.be made.

COOKIESCOOKIES

Real Evidence (physical): Real Evidence (physical): evidence that consists of evidence that consists of physical objects that can be offered into evidence.physical objects that can be offered into evidence.

Example:Example: The cookie jar with the cookie monster’s The cookie jar with the cookie monster’s fingerprints on it.fingerprints on it.

Acid Test:Acid Test: Can the item be labeled and deposited with Can the item be labeled and deposited with the court?the court?

Other typical examples… Other typical examples… weapons,weapons,

tools, tools, tool markings, tool markings, fingerprints, fingerprints, blood, hair, skin samples blood, hair, skin samples

Demonstrative evidence: Demonstrative evidence: Evidence that is prepared by Evidence that is prepared by an attorney in an effort to assist the trier of fact in an attorney in an effort to assist the trier of fact in visualizing or comprehending other evidence.visualizing or comprehending other evidence.

Example:Example: A map of the kitchen showing the cookie A map of the kitchen showing the cookie monster’s proximity and access to the cookie jar.monster’s proximity and access to the cookie jar.

Acid Test:Acid Test: Does the item Does the item itself itself actually prove the fact, or actually prove the fact, or does it does it demonstratedemonstrate a fact that must be proven using a fact that must be proven using some other form of evidence? (Such as an eye witness some other form of evidence? (Such as an eye witness or an expert witness.)or an expert witness.)

Other typical examples… Other typical examples… charts, charts, maps, maps, photographs, photographs, crime sketchescrime sketches

Exculpatory EvidenceExculpatory Evidence

Evidence tending to establish a criminal defendant’s innocence.

Evidence tending to establish a criminal defendant’s innocence.

Direct EvidenceDirect Evidence

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

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

Hearsay EvidenceHearsay 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.)

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 EvidenceImpeachment Evidence

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

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

Prima Facie EvidencePrima Facie Evidence

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

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

Burden of ProofBurden of Proof

A party’s duty to prove a disputed assertion or charge.

1.Beyond a Reasonable Doubt

2.Clear and Convincing

3.Preponderance of the Evidence

A party’s duty to prove a disputed assertion or charge.

1.Beyond a Reasonable Doubt

2.Clear and Convincing

3.Preponderance of the Evidence

Beyond a Reasonable DoubtBeyond a Reasonable DoubtReasonable 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.

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 ConvincingClear and Convincing

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

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

Preponderance of the EvidencePreponderance of the EvidenceThe greater weight of the evidence, not

necessarily established by the number of witnesses testifying, but by evidence that has the most convincing force.

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 BURDENEVIDENTIAL 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.

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 EVIDENCEPRIMA 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

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

PRIVELEGEPRIVELEGE

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

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 PREJUDICEWITHOUT 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.

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.

Inculpate:Inculpate: [verb] to incriminate [verb] to incriminate

Inculpatory Evidence:Inculpatory Evidence: Evidence that would tend to Evidence that would tend to incriminate the accused.incriminate the accused.

Exculpate:Exculpate: [verb] to exonerate, vindicate, redeem [verb] to exonerate, vindicate, redeem

Evidentiary TendencyEvidentiary Tendency

Exculpatory Evidence:Exculpatory Evidence: Evidence that would tend to Evidence that would tend to exonerate the accused.exonerate the accused.

LEGAL BURDENLEGAL 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.

Those who allege must prove Statute may set out who has to prove


still must prove.

LEGAL BURDENLEGAL 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 FORMULAADMIT/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

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 QUESTIONSINITIAL QUESTIONS

What is the Evidence being offered to prove?

Who is offering it?

What form is it in?

What is the Evidence being offered to prove?

Who is offering it?

What form is it in?

AFTER ANSWERING 3 KEY QUESTIONSAFTER ANSWERING 3 KEY QUESTIONS AFTER ANSWERING 3 KEY

QUESTIONS – LAWYER MUST DO THE BARPH TEST

THAT’S RIGHT – WHEN YOU THINK

EVIDENCE – THINK BARPH

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

evidence for policy reasons

Best Evidence – Authentication – Relevance* – Privilege – State law Hearsay – *encompasses rules which may exclude relevant

evidence for policy reasons

BURDEN OF PROOFBURDEN 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

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 BURDENLEGAL BURDEN Those who allege must prove Statute may set out who has to prove


still must prove.

Those who allege must prove Statute may set out who has to prove


still must prove.

LEGAL BURDENLEGAL BURDEN





ORGANISING INFORMATIONORGANISING 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

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

Myth #1Myth #1: You can’t convict someone on circumstantial : You can’t convict someone on circumstantial evidence alone.evidence alone. As there is often no witness to the crime, many convictions are As there is often no witness to the crime, many convictions are based solely on circumstantial evidence. The probable conclusions based solely on circumstantial evidence. The probable conclusions based on circumstantial evidence can be very strong. based on circumstantial evidence can be very strong. There is no There is no legal distinction between direct and circumstantial evidence as far legal distinction between direct and circumstantial evidence as far as probative value - it is up to the trier of fact to decide how much as probative value - it is up to the trier of fact to decide how much weight to give to any particular evidence. weight to give to any particular evidence.

Myths Regarding EvidenceMyths Regarding Evidence

Myth #2Myth #2: Direct evidence (from an eyewitness) is more : Direct evidence (from an eyewitness) is more reliable than circumstantial evidence.reliable than circumstantial evidence.

Many studies have indicated that an eyewitness’ recollection of Many studies have indicated that an eyewitness’ recollection of events is often quite inaccurate. Eyewitnesses often make positive events is often quite inaccurate. Eyewitnesses often make positive errors (adding false details), and negative errors (forgetting correct errors (adding false details), and negative errors (forgetting correct details). Memory seems to be influenced by a witness’ details). Memory seems to be influenced by a witness’ expectations, beliefs, age, stress level, as well as the manner in expectations, beliefs, age, stress level, as well as the manner in which questions are posed to the witness.which questions are posed to the witness.

HearsayHearsay

a. Legalese for opening arguments made in court.

b. Name of a chocolate factory in Pennsylvania.

c. Holding of a belief that goes against generally accepted standards.

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

a. Legalese for opening arguments made in court.

b. Name of a chocolate factory in Pennsylvania.

c. Holding of a belief that goes against generally accepted standards.


HearsayHearsay



Leading questionLeading question

a. A question that suggests its answer.

b. The first of a series of questions.

c. A dispute of dancing partners.

d. An important public issue.

a. A question that suggests its answer.

b. The first of a series of questions.

c. A dispute of dancing partners.

d. An important public issue.

Leading questionLeading question

a. A question that suggests its answer.a. A question that suggests its answer.

Cross-examinationCross-examination

a. Inspection of a religious relic.

b. Direct examination of a witness.

c. Questioning of an adverse witness.

d. Questioning of a party’s own witness.

a. Inspection of a religious relic.

b. Direct examination of a witness.

c. Questioning of an adverse witness.

d. Questioning of a party’s own witness.

Cross-examinationCross-examination

c. Questioning of an adverse witness.c. Questioning of an adverse witness.

Expert TestimonyExpert Testimony

a. Testimony of a witness who directly saw an event take place.

b. Testimony about the good character of a defendant.

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

d. Testimony given by a witness who has rehearsed so much that he or she sounds like an expert.

a. Testimony of a witness who directly saw an event take place.

b. Testimony about the good character of a defendant.


d. Testimony given by a witness who has rehearsed so much that he or she sounds like an expert.

Expert TestimonyExpert Testimony



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

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