TOPIC 2: BASIC CONCEPTS
OF THE LAW OF EVIDENCE
•Concepts in the Law of Evidence
•Fact, fact in issue, relevant facts
•Classification of evidence- Testimonial and
physical, corroborative, hearsay, direct,
original, documentary, real, demonstrative,
DNA,
electronic,
exculpatory
and
inculpatory
•Best evidence rule
CONCEPTS IN THE LAW OF
EVIDENCE
• These include:
– Facts
– Facts in Issue
– Relevant facts
– Collateral facts
FACT
• These are anything, state of things or relation of things
capable of being perceived by the senses and any mental
condition of which any person is conscious.
• Oxford Advanced Learner’s Dictionary defines fact to be a
thing that is known or can be proved to have happened, to
be true or to exist. Fact is said to be a thing which is in actual
existence.
• Black’s Law Dictionary defines fact to be a thing done; an
action performed or an incident transpiring; an event or
circumstance; an actual occurrence; an actual happening in
time space or an event mental or physical; that which has
taken place.
• Legal facts are the information on which lawyers base their
arguments, in order to win cases in courts of law. The
evidence presented during a trial is designed to prove the
facts supporting one's argument.
• Majorly, the facts which are open to proof or disproof in
courts of law are facts in issue, relevant facts, and collateral
facts.
FACT IN ISSUE
• A fact in issue is sometimes referred to as a ‘principal
fact’ or ‘factum probandum’.
• It refers to those facts which the claimant (or the
prosecutor) must prove in order to succeed in his claim
(prosecution) together with those facts which the
defendant (or the accused) must prove in order to
succeed in his defence.
• Black’s Law Dictionary 5th Edition, Facts in issue are
defined as those matters of fact on which the plaintiff
proceeds by his action, and which the defendant
controverts in his defense.
• The nature and number of facts in issue in a case is
determined not by the law of evidence, but partly by
reference to the substantive law and partly by reference
to what the parties allege, admit, and deny. Most cases
involve more than one fact in issue.
For example, in an action for damages for breach of
contract in which the defendant simply denies the facts on
which the claimant relies for his claim, the facts in issue
will be those facts which, if proved, will establish the
formation of a binding contract between the parties, breach
of contract by the defendant, and consequential loss and
damage suffered by the claimant. However, if the
defendant, in his defence, pleads discharge by agreement,
admitting that the contract was made but denying the
breach and loss alleged by the claimant, then the facts in
issue will then be those which, if proved, will establish
breach by the defendant and consequential loss and
damage suffered by the claimant together with those facts
which, if proved, will establish that the parties discharged
the contract by agreement. Another possibility is that the
defendant admits the contract and its breach and makes no
counterclaim. The only facts in issue will then be those
which, if proved, will establish consequential loss and
damage and the amount of damages to which the claimant
claims he is entitled. There are many other possibilities.
• In civil proceedings, the facts in issue are
usually identifiable by reference to the
statement of case, its very purpose being to set
out the factual (and legal) issues on which the
parties agree and disagree so that they and the
court know in advance exactly what matters
are left in dispute and what facts, therefore,
have to be proved or disproved at the trial.
– Order 2, rule 3 (1) ‘…every pleading shall contain only a
statement in a summary form of the material facts on
which the party pleading relies for his claim or defence.’
• In criminal cases in which the accused pleads
not guilty, the facts in issue are:
– all those facts which the prosecution must prove in order
to succeed, including the identity of the accused, the
commission by him of the actus reus, and the existence of
any necessary knowledge or intent on his part, together
with any further facts that the accused must prove in
order to establish any defence other than a simple denial
of the prosecution case.
• The only fact or facts upon which the court
must make its pronouncement are the facts in
issue. Therefore the plaintiff in a civil
proceeding or the prosecution in a criminal
matter must be dutiful in discharging this
burden in other to succeed in their matters.
RELEVANT FACTS
• A relevant fact, sometimes called a ‘fact relevant to
the issue’, an ‘evidentiary fact’ or ‘factum probans’,
• It is a fact from which the existence or nonexistence of a fact in issue may be inferred.
• If the only facts which were open to proof or
disproof were facts in issue, many claims and
defences would fail. If, for example, the fact in
issue is whether a man shot his wife, obviously an
eye-witness to the incident may be called to give
evidence that he saw the shooting.
• However, in many cases a statement by a witness
that he perceived a fact in issue with one of his
senses, which is described as ‘direct evidence’, is
quite simply unavailable.
• Very often the only available evidence is that
which can establish some other fact or facts
relevant to the fact in issue, for example the
evidence of a gunsmith that on the day before the
shooting the man bought a gun from him, the
evidence of a policeman that after the shooting he
found that gun buried in the garden of the man’s
house, and the evidence of a forensic expert that
the gun bore the man’s fingerprints.
• Evidence of relevant facts is described as
‘circumstantial evidence’.
• Where a party to proceedings seeks to establish a
relevant fact the existence of which is denied by
his opponent, the relevant fact may also be said to
be a ‘fact in issue’.
COLLATERAL FACTS
• Collateral facts, sometimes referred to as ‘subordinate
facts’, are of three kinds:
– facts affecting the competence of a witness;
– facts affecting the credibility of a witness; and
– facts, sometimes called ‘preliminary facts’, which must be
proved as a condition precedent to the admissibility of
certain items of evidence tendered to prove a fact in issue or
a relevant fact.
• As to the first, an example would be that a potential
witness suffers from a disorder of the mind rendering
him incompetent to testify.
• An example of a collateral fact of the second kind would
be that a witness, who testifies to the effect that he saw a
certain event at a distance of 50 yards, suffers from an
eye complaint which prevents him from seeing anything
at a distance greater than 20 yards.
• Such a witness may be cross-examined about his
eye complaint and, if he denies its existence,
evidence in rebuttal may be given by an oculist.
Similarly, a witness may be cross-examined about
his bias or partiality towards one of the parties to
the proceedings and again, if he denies it, evidence
may be called to contradict his denial.
• A collateral fact of the third kind may be
illustrated by reference to an exception to the rule
against hearsay: in criminal proceedings a
statement made by a participant in or observer of
an event is admissible as evidence of the truth of
its contents, by way of exception to the rule against
hearsay, on proof that it was made by a person so
emotionally overpowered by the event that the
possibility of concoction or distortion can be
disregarded.
• Another illustration is an exception to the
general rule that a party seeking to rely upon
the contents of a document must adduce the
original: a copy is admissible as evidence of the
contents on proof that the original has been
destroyed or cannot be found after due search.
• Where a party to proceedings seeks to establish
a collateral fact the existence of which is denied
by his opponent, the collateral fact may also be
said to be a ‘fact in issue’.
• The existence or non-existence of a preliminary
fact in issue is decided by the judge as part of
his general function to rule on all questions
concerning the admissibility of evidence.
VARIETIES/TYPES OF EVIDENCE
• The evidence by which facts may be proved or
disproved in court is known as ‘judicial evidence’.
• Judicial evidence takes only three forms, namely
oral evidence, documentary evidence, and things.
• Judicial evidence, however, is open to
classification not only in terms of the form in
which it may be presented in court but also in
terms of its substantive content, the purpose for
which it is presented and the rules by which its
admissibility is determined.
• Thus, any given item of judicial evidence may
attract more than one of the labels by which the
varieties of evidence have been classified.
• The principal forms of clasification include.
a. TESTIMONY
• Generally speaking, testimony simply means the
evidence given by a competent witness under oath or
affirmation different from evidence derived from
writings and other sources. It connotes the evidence of a
live witness before a judicial proceeding.
• According to the Black’s Law Dictionary, 5th edition,
testimony in common parlance is interchangeably used
with the word ‘’Evidence”.
• Testimony properly so called has been described to
mean only such evidence as is delivered by a witness on
the trial of a cause, either orally or in the form of
affidavits or depositions.
• Testimony means oral or written statement made by a
person in court as proof of the truth of that which is
being stated or asserted, it could be direct evidence or
hearsay.
• Testimony is the oral statement of a witness made
on oath in open court and offered as evidence of
the truth of that which is asserted.
• Also defined as the spoken evidence given by a
witness under oath in court or at a deposition, or
written evidence given under oath through an
affidavit.
• It is the assertion of a witness in court offered as
evidence of truth of that which is asserted.
• It includes:
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–
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Oral or written statements given to police as well
testimony in court by people who witnessed an event.
Statement made under oath
What is said in court by a competent witness
b. DIRECT EVIDENCE
• ‘Direct testimony’ is a term used to describe a
witness’s statement that he perceived a fact in
issue with one of his five senses.
• It is testimony relating to facts of which the
witness has or claims to have personal or
firsthand knowledge.
• Direct testimony, or ‘direct evidence’ as it is
sometimes called, is a term commonly used in
contrast with ‘hearsay evidence’. The term is
also used in contrast with ‘circumstantial
evidence’.
c. HEARSAY
• In common parlance, hearsay is used to describe
statements, often gossip, that one hears but does not
know to be true. In the law of evidence, the word is used
in a broader technical sense.
• The common law concept of hearsay may be defined as
any statement, other than one made by a witness in the
course of giving his evidence in the proceedings in
question, by any person, whether it was made on oath or
unsworn and whether it was made orally, in writing, or
by signs and gestures, which is offered as evidence of
the truth of its contents.
• If the statement is tendered for any purpose other than
that of proving the truth of its contents, for example to
prove simply that the statement was made or to prove
the state of mind of the maker of the statement, it is not
hearsay but ‘original evidence’. Provided that it is
relevant to a fact in issue, original evidence is
admissible.
• At common law, hearsay could only be received in
evidence exceptionally.
• Under the modern law, in civil cases the rule has been
abrogated; in criminal cases there are a variety of
statutory exceptions; and in both civil and criminal cases
a number of common law exceptions have been
preserved and given statutory force.
• The meaning of ‘hearsay’ and ‘original evidence’ and the
distinction between them is perhaps best understood by
way of examples.
• Suppose a fact in issue in criminal proceedings is
whether a man, H, shot his wife, W. X was an eyewitness to the shooting and later said to Y: ‘H shot W’. Y
repeated X’s statement to Z. If X is called as a witness to
the proceedings he may, of course, give direct testimony
of the shooting. It is something of which he has personal
or first-hand knowledge, something he perceived with
his own eyes.
• However, X may not narrate to the court the statement that
he made to Y in order to prove that H shot W unless his
statement comes within one of the exceptions to the rule
against hearsay. The statement was made other than in the
course of giving evidence in the proceedings in question and
would be tendered in order to prove that H shot W (the truth
of its contents). For the same reasons neither Y nor Z, if
called, could recount X’s out-of-court statement unless,
again, it comes within one of the exceptions to the rule
against hearsay.
• Now suppose a fact in issue in criminal proceedings is
whether D is physically capable of speech. D is charged with
obtaining property by deception. The prosecution allege that
he dishonestly obtained money from a charity by pretending
that he was incapable of speech. D, leaving the offices of the
charity, held a conversation with E. E, if called as a witness
for the prosecution, may give evidence of what D said, not to
prove the truth of anything that D said, but simply to prove
that D’s statements were made, that D could speak. D’s outof-court statements are received as original evidence.
• These are deliberately simple examples of
difficult concepts. The meaning of hearsay
evidence and the distinction between hearsay
and original evidence give rise to difficult legal
problems which are explored later in the
course.
• There exist numerous common law and
statutory exceptions to the rule against hearsay
as shall be addressed in group assignments.
d. DOCUMENTARY EVIDENCE
• Documentary evidence usually consists of a document
or a copy of a document, produced for inspection by the
court.
• However, in some cases the evidence may be presented
electronically, by a simultaneous display to all parties
via courtroom monitors, thereby ensuring that all
involved are looking at the same item of evidence at the
same time. Presentation of evidence in this way is
encouraged in fraud and other complex criminal cases
because of its potential for saving time.
• The meaning of ‘document’ varies according to the
nature of the proceedings and the particular context in
question. The word is defined to include not only
documents in writing, but also maps, plans, graphs,
drawings, photographs, discs, tapes, videotapes, films,
and negatives.
• Documents may be produced to show their
contents, their existence, or their physical
appearance.
• The contents of a document may be received as
evidence of their truth, by way of exception to the
hearsay rule, or for some other purpose, for
example to identify the document or to show what
its author thought or believed.
• It is convenient to regard the contents of
documents as a separate category of judicial
evidence because although, like oral statements,
they are subject to the general rules of evidence on
admissibility, their reception in evidence is also
subject to two additional requirements. One of
these relates to the proof of their contents.
e. PRIMARY AND SECONDARY
EVIDENCE
• ‘primary evidence’, is the best available evidence, which
does not by its very nature suggest that better evidence may
be available.
• ‘secondary evidence’, that is evidence which by its nature
suggests that better evidence may be available.
• The original of a document is primary evidence, a copy
secondary eveidence of its contents
• As a general rule, a party seeking to rely on the contents of a
document must adduce primary evidence of those contents,
which is usually the original of the document in question, as
opposed to secondary evidence of those contents, for
example a copy of the document, a copy of a copy of the
document, or oral evidence of the contents.
• Where a document is produced to show the bare fact of its
existence or its physical appearance, for example the
substance of which it is made or the condition which it is in,
it constitutes a variety of ‘real evidence’.
f. REAL EVIDENCE
• Real evidence usually takes the form of some
material object produced for inspection in order
that the court may draw an inference from its own
observation as to the existence, condition or value
of the object in question.
• It is material objects, other than documents
produced for the inspection of the court.
• Although real evidence may be extremely valuable
as a means of proof, little if any weight attaches to
such evidence in the absence of some
accompanying testimony identifying the object in
question and explaining its connection with, or
significance in relation to, the facts in issue or
relevant to the issue.
• In addition to material objects, including documents,
examples of real evidence also include the physical
appearance of persons and animals, the demeanour of
witnesses, the intonation of voices on a tape recording,
views, that is inspections out of court of the locus in quo
or of some object which it is impossible or highly
inconvenient to bring to court, and, possibly, out-ofcourt demonstrations or re-enactments of acts or events
into which the court is enquiring.
• Real evidence has been classified into six different types
and these are as follows:
• i. Material Objects: These are any kind of evidence
produced for the proving of facts in issue or relevant
fact in a judicial proceeding.
• ii. Appearance of a person: This entails the procurement
of a person’s physical appearance in court for the
purpose of establishing certain facts like injury
sustained, claim on paternity of a child or the
determination of the age of a child.
• iii. Demeanour of Witnesses: This deals with the character of
a witness either within or without the court. The behaviour
of a witness observed as to truthfulness, deceitfulness
vengeful or otherwise could be used as evidence before the
court and this constitutes real evidence.
• iv. View: This deals with the inspection of the place of
occurrence of an event upon which a case is established. This
in law is what is referred to the visit to the ‘’locus in quo’’.
Locus in quo is the scene of a crime or where an act been
disputed occurred.
• v. Tape-Recording: This is an aspect of electronic evidence.
When a tape recording is allowed to be played in court for
the purpose of putting words expression from it into
evidence, it becomes real evidence.
• vi. Documents: This involves the usage of a document in
evidence as a chattel and not for the purpose of the perusal
of its content. Example of this is the presentation of an
alleged stolen book that is recovered and now presented in
court as evidence
g. PHYSICAL EVIDENCE
• Tangible items that tend to prove some material fact.
• It is any proof introduced in the form of a physical object,
whether whole or in part. In criminal proceedings, such
evidence might consist of dried blood, fingerprints, a murder
weapon, DNA samples, casts of footprints or tires at the
scene of the crime etc.
• Physical evidence refers to any material items that would be
present at the crime scene, on the victims, or found in a
suspect’s possession.
• Described synonymously with real evidence.
• It can be any material or object
• It can take any form including:
– Large as a building
– Fleeting as an odor
– Small as a hair
– Microscopic as DNA
• It is much more reliable than testimonial evidence.
• It is the type of evidence that forensic scientists are most
interested in
• Forensic scientists will…
– Observe physical evidence
– Determine identity
– Determine origin
• Types of physical evidence include:
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Trace Evidence
Transient evidence
Conditional Evidence
Indirect Evidence
Circumstantial Evidence
Individual evidence
Class evidence
• Trace evidence: physical evidence that is found in small
but measurable amounts, such as strands of hair, fibers,
or skin cells.
• Transient evidence: Temporary evidence. Can be easily
changed or lost. Its usually observed by first officer on scene
and must be recorded at that time. Examples include: OdorsPerfume, cigarette smoke, gas, Temperature- Coffee pot, car
hood, water in bath tub, dead body and Imprints- Footprints
in sand, fingerprints in dust, teeth marks in perishable food.
• Conditional evidence: evidence produced by a specific action
or event at the scene. It must be observed and recorded.
Examples include; Lights, Garage door, Doors, Windows,
Position of body and Position of furniture etc.
• Indirect evidence: Evidence that does not prove or disprove a
fact in question. Evidence providing only a basis for
inference about a disputed fact. May prove something like
the possession of controlled substances or driving under the
influence.
• Circumstantial Evidence: Evidence based on suggestion
rather than personal knowledge. Implies a fact or event
without actually proving it. The more circumstantial
evidence there is, the greater it weighs. Probability and
statistics important.
• Circumstantial physical evidence:
– Can prove crime has been committed e.g. Gasoline at a scene
of a fire
– Back up witness testimony or disprove it e.g. Test blood
stains of suspects
– Link suspect with victim or crime scene e.g. Broken glass of
headlight in cuff of suspects pants at scene of hit and run
– Determine identity of people associated with crime e.g.
Fingerprints, DNA
– Allow investigators to reconstruct a crime e.g. Blood spatter
patterns
• Individual Evidence: Material that can be related to a
single source. Individualization always involves a
comparison. Narrows an identity to a single person or
thing e.g. DNA, Fingerprints and Handwriting
• Class Evidence: Material that can be associated with a
group of items that share properties or characteristics.
Object is similar to group of similar objects but not one
single object. Narrows an identity to group of persons or
things e.g. Blue jeans
h. CIRCUMSTANTIAL EVIDENCE
• Circumstantial evidence is evidence of relevant facts
(facts from which the existence or non-existence of a fact
in issue may be inferred) as contrasted with ‘direct
evidence’, a term which is used to mean testimony
relating to facts in issue of which a witness has or claims
to have personal or first-hand knowledge.
• It is a type of evidence in which the fact in issue may be
inferred from a given situation or occurrence. This kind
of evidence is only made applicable when there is the
absence of direct evidence.
• Circumstantial evidence is one which projects a number
of circumstances in which inference can be made of the
occurrence of a situation, thus becoming the facts upon
which the case rests.
• Also defined as the circumstances in which a fact may
be said to be relevant to a fact in issue, in the sense that
the existence of the former gives rise to an inference as
to the existence or non-existence of the latter, are many
and various.
• Circumstantial evidence may take the form of oral or
documentary evidence (including admissible hearsay)
or real evidence.
• ‘It is no derogation of evidence to say that it is
circumstantial.’ Its importance lies in its potential for
proving a variety of different relevant facts all of which
point to the same conclusion, as when it is sought to
establish that an accused committed murder by evidence
of his preparation, motive, and opportunity for its
commission, together with evidence of the discovery of
a weapon, capable of having caused the injuries
sustained by the victim, buried in the accused’s back
garden and bearing his fingerprints.
• Circumstantial evidence, it has been said, ‘works by
cumulatively, in geometrical progression, eliminating
other possibilities’ and has been likened to a rope
comprised of several cords: One strand of the cord
might be insufficient to sustain the weight, but three
stranded together may be quite of sufficient strength.
• Thus it may be in circumstantial evidence—there may be
a combination of circumstances, no one of which would
raise a reasonable conviction or more than a mere
suspicion; but the three taken together may create a
conclusion of guilt with as much certainty as human
affairs can require or admit of.
• Circumstantial evidence may sometimes be conclusive,
but it must always be narrowly examined, if only
because evidence of this kind may be fabricated to cast
suspicion on another.
– Joseph commanded the steward of his house, ‘put my cup,
the silver cup in the sack’s mouth of the youngest’, and
when the cup was found there Benjamin’s brethren too
hastily assumed that he must have stolen it.. .
• It is also necessary before drawing the inference of the
accused’s guilt from circumstantial evidence to be sure
that there are no other co-existing circumstances which
would weaken or destroy the inference
• Where a fact relied on as circumstantial evidence is an
indispensable link in a chain of reasoning towards guilt,
it may be appropriate to identify the fact and establish
beyond reasonable doubt before the ultimate inference
can be drawn, but where the evidence consists of
strands in a cable rather than links in a chain and no one
strand is indispensable for a conviction, the judge
should not to consider any particular fact separately, but
to consider the circumstantial evidence as a whole.
• For circumstantial evidence to be relied on, it must be
that which is cogent, unequivocal, strong and
compelling and must lead to the irresistible conclusion
that the accused and no other person committed the
offence, such evidence must make no room for any
reasonable doubt.
• Certain types of circumstantial evidence arise so
frequently that they have been referred to as
‘presumptions
of
fact’
or
‘provisional
presumptions’ such as the presumptions of
intention, guilty knowledge, continuance of life,
and seaworthiness etc.
• Another type of circumstantial evidence is
evidence of facts which are so closely associated in
time, place, and circumstances with some
transaction which is in issue that they can be said
to form a part of that transaction. Such facts,
referred to as facts forming part of the res gestae,
covered in later part of this course.
• The following examples of circumstantial
evidence:
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•
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•
Motive
Evidence of facts which supply a motive for a particular
person to do a particular act is often received to show that it
is more probable that he performed that act. Such evidence
is admissible notwithstanding that the motive is irrational.
Surely in an ordinary prosecution for murder you can prove
previous acts or words of the accused to show that he
entertained feelings of enmity towards the deceased, and this
is evidence not merely of the malicious mind with which he
killed the deceased, but of the fact that he killed him . . . it is
more probable that men are killed by those that have some
motive for killing them than by those who have not.
Conversely, evidence of absence of motive may be relevant
to show the relative unlikelihood of a particular person
having performed a particular act.
Plans and preparatory acts
Facts which tend to suggest that a person made plans or
other preparations for the performance of a particular act are
relevant to the question of whether she subsequently
performed that act. Thus evidence may be given of the
purchase by an alleged murderer of poison, or as the case
may be, of a gun or dagger.
Capacity
• Evidence of a person’s mental or physical capacity or
incapacity to do a particular act has an obvious
relevance to the question of whether he in fact
performed it.
Opportunity
• Circumstantial evidence of opportunity is evidence of
the fact that a person was present at the time and place
of some act allegedly performed by him, for example
evidence, to establish adultery in divorce proceedings,
that a couple occupied the same hotel bedroom for two
nights. Conversely, evidence of lack of opportunity is
evidence of the fact that a person was absent, which, in a
criminal case, may assist the accused, for example alibi
evidence, or the prosecution, for example evidence that
after his arrest the accused had no opportunity to
commit further offences (coupled with evidence that no
further offences similar to those with which he is
charged were committed in the same area).
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•
•
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Identity
Circumstantial evidence of identity often takes the form
of expert testimony that the fingerprints of the accused
or samples taken from his body match those discovered
on or taken from some material object at the scene of the
crime or the victim of the offence in question.
It can also take the form of evidence that a tracking dog
tracked the accused by scent from the scene of the crime.
Identity may also be established by evidence that both
the accused and the criminal share the same name, the
same physical idiosyncrasy, for example lefthandedness, the same style of handwriting, or the same
particular manner of expression in speech or writing.
In civil proceedings, evidence as to the paternity of a
person may be given by expert medical evidence of
blood tests showing that a man is or is not excluded
from being the father of that person.
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Continuance
The fact that a certain act or event was taking place at one
point in time may justify the inference that it was also taking
place at some prior or subsequent point in time.
Thus evidence of the speed at which someone was driving at
a particular point in time may be given to show the speed at
which he was likely to have been driving a few moments
earlier or later.
Failure to give evidence or call witnesses
In civil cases, one party’s failure to give evidence or call
witnesses may justify the court in drawing all reasonable
inferences from the evidence which has been given by his
opponent as to what the facts are which the first party chose
to withhold.
Thus adverse inferences have been drawn from the
unexplained absence of witnesses who were apparently
available and whose evidence was crucial to the case.
The inferences that may be drawn, in criminal cases, from
the accused’s election not to give evidence, call for a more
detailed analysis.
• In appropriate cases the judge may comment adversely on
the fact that the witness was not called, but should exercise
the same degree of care as when commenting on the failure
of the accused himself to give evidence and in particular
should avoid the suggestion that the failure is something of
importance when there may be a valid reason for not calling
the witness.
• Whether a comment is justified and, if so, the terms in which
it should be cast, are matters dependent upon the facts of the
particular case.
Failure to provide evidence
• If, in any civil proceedings in which the paternity of any
person falls to be determined, the court directs a party to
undergo a blood test and that party fails to obey the
direction, the court may draw such inferences as appear
proper in the circumstances.
• Similarly, Where an accused has refused without good cause
the taking from him of an intimate body sample the court, in
determining whether there is a case to answer, and the court
or jury, in determining whether he is guilty of the offence
charged, ‘may draw such inferences from the refusal as
appear proper’.
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Lies
Lies told by an accused, on their own, do not prove that
a person is guilty of any crime.
However, evidence of such post-offence behaviour may
indicate a consciousness of guilt. Inappropriate
circumstances, lies may be relied upon by the
prosecution as evidence supportive of guilt
Standards of comparison
In cases where it is necessary to decide whether a
person’s conduct meets some objective standard of
behaviour, evidence of what other persons would do in
the same circumstances is admissible as a standard of
comparison.
Similarly, where the issue concerns the existence of a
practice in a trade carried out in a particular location,
evidence may be admissible of the existence or nonexistence of that practice in a similar trade located
elsewhere.
i. CONCLUSIVE EVIDENCE
• Conclusive evidence operates to prove a matter
and to bar any evidence that might go to disprove
it.
• It is that evidence which cannot be contradicted.
• An example of this is the criminal culpability of a
child under seven years of age under criminal law
which provides that: ‘’No act is an offence’’ if it
done ‘’by a child under seven years of age’’.
• The implication of this is that if in any criminal
case, the accused or the offender is found to be
younger or lesser than seven years of age, he
would not be held liable as he is not capable of
committing a criminal offence under the law.
j. DEMONSTRATIVE EVIDENCE
• This is a common form of proof, generally having
the form of the representation of an object.
Examples include: photographs, videos, sound
recordings, x-rays, maps, drawings, graphs, charts,
simulations, sculptures, and models, among
others.
k. DIGITAL EVIDENCE
• In recent years, the use of digital evidence in trials
has greatly increased. Simply put, it is any type of
proof that can be obtained from an electronic
source, such as emails, hard drives, word
processing documents, instant message logs, ATM
transactions, cell phone logs, and so forth.
l. EXCULPATORY EVIDENCE
• Typically used in criminal cases, this type of
evidence is that which favors the defendant,
either partially or totally removing their guilt in
the case. In some jurisdictions e.g. United
States, if the prosecutor or police have found
evidence, it is their duty to disclose it to the
accused. Failure to do so can result in the case
being dismissed.
m. SCIENTIFIC EVIDENCE
• Evidence submitted to the court claiming to be
scientific in nature must first conform to
generally-accepted principles of the scientific
community.
n. PRIMA FACIE EVIDENCE
• The term ‘’prima facie’’ is a Latin expression
which means ‘’on the face of it’’ on the first
impression or at the first sight.
• This is, “evidence sufficient to establish a claim
or defense until rebutted by contrary
evidence.”
• That which would entitle a party to a
judgement in his favour unless such evidence is
contradicted.
• Such evidence is generally deemed sufficient to
prove a particular proposition or fact if it is not
refuted by later evidence or argumentation.
• When a prima facie evidence is established by a
party, it shifts the burden of proof to the other
party and in the absence of any or further
evidence to the contrary, the prima facie
evidence becomes a conclusive proof.
• This term is normally invoked at a stage of a
“no case to answer submission’’ in a criminal
trial. In a criminal case, a prima facie evidence
is established when the prosecution has
presented sufficient evidence to render
reasonable a conclusion on the face of the
evidence that the accused is convictable in the
absence of a contrary evidence.
BEST EVIDENCE RULE
• The best evidence rule has its origins in the 18th century
case Omychund v Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33.
Wherein Lord Harwicke stated that no evidence was
admissible unless it was "the best that the nature of the
case will allow"
• It is a rule of evidence requiring the “best” evidence of
something be admitted at trial or during a hearing.
• It is a general rule that the best evidence of which the
nature of the case will admit must be produced if it can
possibly be obtained; if not, then the next best evidence
that can be obtained is admitted.
• The best evidence is evidence which is more specific and
definite as opposed to that, which is merely general and
indefinite or descriptive. The best evidence is that kind
of proof, which under any possible circumstances
affords the greatest certainty of the facts in question or
evidence which comes on its surface, no suggestion of
better evidence behind.
• The Best Evidence Rule presupposes that no better
evidence could have existed than what is adduced.
• If there be two or more ways of proving a fact, the
method most cogent, than others is to be adopted.
• The best evidence rule applies when a party wants
to admit as evidence the contents of a document at
trial, but that the original document is not
available. In this case, the party must provide an
acceptable excuse for its absence. If the document
itself is not available, and the court finds the
excuse provided acceptable, then the party is
allowed to use secondary evidence to prove the
contents of the document and have it as admissible
evidence. The best evidence rule only applies
when a party seeks to prove the contents of the
document sought to be admitted as evidence.
• The rationale for the best evidence rule can be
understood from the context in which it arose: in the
eighteenth century a copy was usually made by hand by
a clerk (or even a litigant). The best evidence rule was
predicated on the assumption that, if the original is not
produced, there is a significant chance of error or fraud
in relying on such a copy.
• In the age of digital facsimiles, etc. the rule is more
difficult to justify. The likelihood of actual error (as
opposed to mere illegibility) through copying is slight.
The balance of convenience favours avoiding needless
effort and delays where there is no dispute about the
fairness and adequacy of a digital facsimile. Further, it is
by no means clear what the ‘original’ of an electronic
communication such as an e-mail actually is: as many as
eight electronic ‘copies’ of a message might come into
existence from creation to receipt.
• The best evidence rule is also thought to be the basis for
the rule precluding the admissibility of hearsay
evidence, although the two rules are now quite distinct.
• In the United States the rule has been codified in the federal
Rules of Evidence as rule1002:177
• To prove the content of a writing, recording, or photograph,
the original writing, recording, or photograph is required,
except as otherwise provided in these rules or by Act of
congress.
• The rule requires that when writings are introduced as
evidence in a trial, the original writing must be produced as
the “best evidence”. In federal practice, however, any exact
copies of the original carry the same legal weigh as the
original unless their authenticity is in question.
• The term “writing” has been liberally interpreted to include
photographs, x-rays, and films. Note that for photographs
and film, this could be construed to mean negatives, not
prints, as they are the true ‘original’. The rule applies in two
situations:
– a) Where the terms of the writing are legally dispositive in the
issue at bar (not collateral documents or issues).
– b) Where the witness’s sole knowledge of a fact comes from
having read it in the document.
• There is an exception. If the original document is
unavailable for reasons other than serious
misconduct of the proponent, secondary sources of
evidence (such as oral testimony) can be used in
place of the original.
• However, good this best evidence rule may have
been it has ceased to be a fixed rule of law it is no
more than a mere counsel of prudence to adduce
the best evidence available rather than a rule of
law excluding inferior evidence merely because a
superior evidence is available.
• Lord Denning in Garton v. Hunter [1969] 1 All ER
451, [1969] 2 QB 37MR says that, ‘nowadays we do
not confine ourselves to the best evidence. We
admit all relevant evidence. The goodness or
badness of it goes only to weight and not to
admissibility.’
The main emphasis in modern times is upon ensuring that,
so far as possible and subject to considerations of reliability
and weight, all relevant evidence is capable of being
adduced.
• However, there has been an argument that the rule still
subsists. In the case of Also R v Stephenson (1971) 1 WLR 1, it
was stated in this case that, “…Nonetheless, it can be said
that the Best Evidence Rule still subsists and evidence can
still be excluded altogether on the ground that it is not the
best evidence available.”
• For example in such transaction that involves written
documents like a lease, or Mortgage Deed, although sensual
methods of proof are available, the court would demand that
if you have the original document, you must produce it,
unless non-production is excused.
• However, such instances are not to be misconstrued as
anything in the nature of the Best Evidence Rule as a fixed
rule of Law. Rather, they are suggestive only that the
secondary evidence or other evidence adduced is so
unreliable that is would be unsafe to admit it.
•