The Role and Rules of Evidence

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Created on Thursday, 01 August 2013 00:00

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The Role and Rules of Evidence

Think About This:“[F]rom the very beginning a student of evidence must accustom himself to dealing as wisely and understandingly as possible with principles which impede freedom of proof... calculated and supposedly helpful obstructionism...”(Maguire, Evidence-Common Sense and Common Law, pp.10-11.)

The OmanbaPa Research Group

BRIEFS & MEMOS

When is Evidence Unnecessary- and in this ongoing election petition, is the battle for it really over? “Occasionally the Law of Evidence allows a fact to be proved without evidence. This happens when the court takes judicial notice of a fact. Sometimes no evidence is required because a party makes a formal admission. Presumptions lessen the burden on a party to produce evidence. Where legitimacy is in issue a party will not be asked to prove that the child is the off-spring of two people who were married to one another. The Law of Evidence only asks the party to prove that the child was born to the mother during the marriage. The child will be found legitimate by the court unless the opponent can produce evidence which satisfies the court on the balance of probabilities that the child was not the child of the husband. The course will look at the rules governing examination-in-chief, cross-examination and re-examination and re-opening a case. These rules have been devised to allow evidence to be presented in an orderly fashion, to make it easier for the court or jury to follow the evidence and to be fair to the parties. Special rules have been devised to control cross-examination of the accused in a criminal trial. Also of importance are the rules which determine who will be allowed to give oral evidence in court and who can refuse to testify. Nowadays almost anyone who has something relevant to say is competent to give evidence, although not necessarily on oath. Children can, and in criminal cases must, give evidence unsworn. Most people are both competent and compellable witnesses. They cannot refuse to testify. The criminal defendant is an exception: he is competent but not compellable. But if he stays out of the witness box the jury can draw adverse inferences from his silence.” (West’s Encyclopedia of American Law, edition 2)