Road To Law Of Evidence
Mian Ali Haider
L.L.B., L.L.M (Cum Laude)
U.K.
Qanoon –e- Shahdat / Evidence Act
1872 / English Law of Evidence
 The Qanun-e-Shahadat Order
1984 repealed Evidence Act of 1872
 Both are subjectively the same but
objectively they are poles apart.
 The Object of Qanun-e-Shahadat
Order is evident from its preamble
which has never been the object of the
repealed Evidence Act
 With reference to the preamble,
Intention of object of introduction this
Order, as stated therein, is to bring the
all laws of evidence in conformity with
the injection of Islam as laid down in the
Holy Quran and Sunnah
 It is an admitted position that all Articles or
the Order 1984 are substantially and
subjectively mere reproduction of all sections
of the repealed Act with exceptions of Article
3, Article 4 to 6(with reference to Hudood),
addition of Article 44 and addition of a proviso
to Article 42 if compared with corresponding
sections of the repealed Act
 However, principles of Islamic Law of
evidence so long as they are not
codified or adopted by Qanun-eShahadat, 1984 are not per se
applicable Order. It apply to all judicial
and quasi judicial proceedings.
WHAT IS EVIDENCE
 Evidence is information used in court to
decide on the probability of an alleged
fact.
 Facts open to proof are:
 Facts in issue
 Relevant facts
 Collateral facts
FACTS IN ISSUE
 Identifiable from the pleadings.
 Pleadings set out allegations,
admissions and denials and thus define
facts in issue
 A fact formally admitted is no longer a
fact in issue
 Admitted in pleadings, interrogatories etc
RELEVANT FACTS
 Facts from which it is possible to infer
the existence or non-existence of a fact
which is in issue.
 This is called circumstantial evidence.
COLLATERAL FACTS




Affects the credibility of a witness.
Goes to weight of evidence
Affects competence of witness
Preliminary facts which are proved as a
condition precedent to the admissibility
of certain kinds of evidence.
TYPES OF EVIDENCE
 Testimony
 evidence made orally
 Direct testimony
 Statements of a fact of which witness has
first hand knowledge
 Hearsay
 Any out of court statement offered as
evidence of the truth of its contents
TYPES OF EVIDENCE
 Original evidence
 Evidence of an out of court statement
tendered for any relevant purpose other
than that of proving the truth of the facts
contained in it.
 Real evidence
 A material object produced for inspection
 Documentary evidence
 Produced as real or original evidence, or
hearsay
TYPES OF EVIDENCE
 Primary evidence
 Evidence of the best kind
 e.g. original documents
 Secondary evidence
 Evidence of inferior kind
 e.g. photostat copies
 Circumstantial evidence
 evidence of facts relevant to the existence
or non-existence of a fact in issue
Evidence
Something (including testimony,
documents and tangible objects) that
tends to prove or disprove the existence
of an alleged fact.
Forms of Evidence
• circumstantial evidence
• direct evidence
• real evidence
• demonstrative evidence
Circumstantial Evidence: A form of evidence that allows
a judge or jury to infer or accept a fact based on a set of
known circumstances. A fact that can be used to infer
another fact.
Example: The cookie
monster is found
standing by an open
cookie jar with cookie
crumbs on his face.
The circumstantial
evidence would
indicate that the
cookie monster ate a
cookie. However, he
was not actually seen
eating the cookie.
Acid Test: You can believe the evidence without
necessarily concluding that the accused is guilty. There
are other possible inferences that could be made.
Direct Evidence: An eyewitness has seen or heard the
alleged events, or some real evidence is provided which
proves a fact in question. (The fact in question must
prove the guilt of the accused.)
Example:
Someone sees
cookie monster
eat a cookie out
of the cookie
jar.
COOKIES
Acid Test: If you believe the evidence (ie. eye-witness
testimony), then you are forced to conclude that the
accused is guilty. There are no other inferences that can
be made.
Real Evidence (physical): evidence that consists of
physical objects that can be offered into evidence.
Example: The cookie jar with the cookie monster’s
fingerprints on it.
Other typical examples…
weapons,
tools,
tool markings,
fingerprints,
blood, hair, skin samples
Acid Test: Can the item be labeled and deposited with
the court?
Demonstrative evidence: Evidence that is prepared by
an attorney in an effort to assist the trier of fact in
visualizing or comprehending other evidence.
Example: A map of the kitchen showing the cookie
monster’s proximity and access to the cookie jar.
Other typical examples…
charts,
maps,
photographs,
crime sketches
Acid Test: Does the item itself actually prove the fact, or
does it demonstrate a fact that must be proven using
some other form of evidence? (Such as an eye witness
or an expert witness.)
Exculpatory Evidence
Evidence tending to establish a criminal
defendant’s innocence.
Direct Evidence
Evidence that is based on personal
knowledge or observation and that, if
true, proves a fact without inference or
presumption.
Hearsay Evidence
Testimony given by a witness who relates
not what he or she knows, but what
others have said. Therefore it is
dependent on the credibility of someone
other than the witness. (An out of court
statement offered for the truth of the
matter being asserted.)
Impeachment Evidence
Evidence which is used to undermine
(discredit) a witness’s credibility.
Prima Facie Evidence
Evidence that will establish a fact or
sustain a judgment unless contradictory
evidence is produced.
Burden of Proof
A party’s duty to prove a disputed
assertion or charge.
1.Beyond a Reasonable Doubt
2.Clear and Convincing
3.Preponderance of the Evidence
Beyond a Reasonable Doubt
Reasonable Doubt is the doubt that
prevents one from being firmly
convinced of a defendant’s guilt, or the
belief that there is a real possibility that
a defendant is not guilty.
Clear and Convincing
Evidence indicating that the thing to be
proved is highly probable or reasonably
certain.
Preponderance of the
Evidence
The greater weight of the evidence, not
necessarily established by the number
of witnesses testifying, but by evidence
that has the most convincing force.
EVIDENTIAL BURDEN
 The party bearing the legal burden
usually bears the evidential burden
 Distinguish from prima facie
 Before evidence acceptable judge must
be satisfied by prima facie evidence.
PRIMA FACIE EVIDENCE
 E.g. in order to admit tape recordings
judge must satisfy himself that a prima
facie case of originality has been made
out be evidence which defines and
describes the provenance and history of
the recordings up to the moment they
appear in court. (R v. Robson (1972))
 Photographs and videos need only
show proof that they refer to event in
PRIVELEGE
 Legal professional privilege
 Certain communications between lawyer
and client cannot be elicited from client
 Certain communications relating to
pending or contemplated litigation
between lawyer and client or third
parties cannot be elicited from client
 Relates mainly to communications for
giving legal advice and pending legal
WITHOUT PREJUDICE
 Negotiations for settlement of an action
are made without prejudice and
therefore privileged
 Normally includes ‘without prejudice’ on
documentation but does not have to,
test is whether it is part of negotiation.
 Even if marked without prejudice and
correspondence not part of settlement
then statement of no use.
Evidentiary Tendency
Inculpate: [verb] to incriminate
Inculpatory Evidence: Evidence that would tend to
incriminate the accused.
Exculpate: [verb] to exonerate, vindicate, redeem
Exculpatory Evidence: Evidence that would tend to
exonerate the accused.
LEGAL BURDEN
 Those who allege must prove
 Statute may set out who has to prove
what. Some acts shift onus of proof.
 Wording of contract would be important.
 In negative assertions those who allege
still must prove.
LEGAL BURDEN
 Policy decisions may be made in
difficult cases - onus placed on person
who would find it less difficult to prove.
 Must prove on balance of probabilities,
the evidence must show that the fact
was more probable than not (Miller v.
Minister of Pensions)
ADMIT/EXCLUDE FORMULA
 EVIDENTIARY ISSUES ARISE WHEN
ONE SIDE WANTS TO ADMIT THE
EVIDENCE AND THE OTHER WANTS
TO EXCLUDE IT
 HOW THE LAWYER PREPARE ON
CONTESTED ISSUES OFTEN
DEPENDS UPON THE ANSWER TO 3
KEY QUESTIONS
INITIAL QUESTIONS
 What is the Evidence being offered to
prove?
 Who is offering it?
 What form is it in?
AFTER ANSWERING 3 KEY
QUESTIONS
 AFTER ANSWERING 3 KEY
QUESTIONS – LAWYER MUST DO
THE BARPH TEST
 THAT’S RIGHT – WHEN YOU THINK
EVIDENCE – THINK BARPH
When you think evidence, think
BARPH
 Best Evidence –
 Authentication –
 Relevance* –
 Privilege – State law
 Hearsay –
 *encompasses rules which may exclude relevant
evidence for policy reasons
BURDEN OF PROOF
 Which party has to prove what?
 Legal burden
 requirement to prove a fact in issue
 Evidential burden
 the requirement to obtain sufficient
evidence to justify a favourable finding of a
fact in issue
LEGAL BURDEN
 Those who allege must prove
 Statute may set out who has to prove
what. Some acts shift onus of proof.
 Wording of contract would be important.
 In negative assertions those who allege
still must prove.
LEGAL BURDEN
 Policy decisions may be made in
difficult cases - onus placed on person
who would find it less difficult to prove.
 Must prove on balance of probabilities,
the evidence must show that the fact
was more probable than not (Miller v.
Minister of Pensions)
ORGANISING
INFORMATION
 In order to succeed in an action you
need to prove or disprove facts logically.
 For example it has to be proved that a
third party driver was negligent.
 Diagrams can assist with this approach
 Start with event to be proved and work
downwards
 Check that all points can be proved on
balance
Myths Regarding Evidence
Myth #1: You can’t convict someone on circumstantial
evidence alone.
As there is often no witness to the crime, many convictions are
based solely on circumstantial evidence. The probable conclusions
based on circumstantial evidence can be very strong. There is no
legal distinction between direct and circumstantial evidence as far
as probative value - it is up to the trier of fact to decide how much
weight to give to any particular evidence.
Myth #2: Direct evidence (from an eyewitness) is more
reliable than circumstantial evidence.
Many studies have indicated that an eyewitness’ recollection of
events is often quite inaccurate. Eyewitnesses often make positive
errors (adding false details), and negative errors (forgetting correct
details). Memory seems to be influenced by a witness’
expectations, beliefs, age, stress level, as well as the manner in
which questions are posed to the witness.
Hearsay
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.
Hearsay
d. The type of evidence that is often
excluded, unless it falls within an
accepted category.
Leading question
a.
b.
c.
d.
A question that suggests its answer.
The first of a series of questions.
A dispute of dancing partners.
An important public issue.
Leading question
a. A question that suggests its answer.
Cross-examination
a.
b.
c.
d.
Inspection of a religious relic.
Direct examination of a witness.
Questioning of an adverse witness.
Questioning of a party’s own witness.
Cross-examination
c. Questioning of an adverse witness.
Expert Testimony
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.
Expert Testimony
c. Testimony of a witness who has substantial
knowledge and experience in a particular
field.