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


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)


Over the past months; we have been privileged by the courtesies of the Judicial Service of Ghana and the Ghana Broadcasting Corporation (GTV) and not least, the parties to the trial in having on first hand, the proceedings of the 2012 presidential election petition being heard by the 9-member panel of the highest court of the land- the Supreme Court of Ghana. In these Briefs & Memos, we shall consider the following as culled from West’s Encyclopedia and UEA Norwich: (1) What is evidence for legal purposes? (2) When is evidence unnecessary? (3) How and by whom can evidence be presented to the court? (4) How is the evidence to be evaluated and the roles of those who constitute the court. We mention in passing the often cited Evidence Decree Act of 1974.


In the words of UEA Norwich, most legal battles that sail to court involve a dispute over facts and that others, as we have been witnessing in the ongoing presidential election petition hearing under discussion, also concern issues over both the law and the facts. The research suggests that a fairly small minority of litigations are solely about the law and that the facts that are disputed are determined by the substantive law (Contract, Tort, Crime, etc.) and the reactions of the parties to allegations ( The supporting illustrations given here are that on a charge of murder the prosecution must, for example, prove that the victim was killed by the defendant who at the time had that mental state specified by the Criminal Law for murder. The facts in issue, therefore, will be the actions and the mental state of the defendant.

Thus if the defendant, for example, raises a defence of provocation, then the facts in , per UEA, will include the actions of the victim. The court reconstructs events from the evidence presented by the parties to the court and that in most trials the chief form of evidence is the sworn testimony of witnesses. But it may include documents, physical property, such as a weapon and scientific evidence and the court makes its findings of fact from the evidence given directly to the court and the inferences which can be drawn from such evidence. “The rules of evidence restrict the evidence which may be presented to the court and determine how that evidence is handled.” This reminds us of the various objections raised under the Evidence Decree 1974, where counsels in the ongoing petition, sought to introduce certain circumstantial evidence to buttress their claims only to be overruled. The rules of evidence are chiefly concerned with five main matters discussed below:

What is Evidence for Legal Purposes?

Researched- Central to this part of the Law of Evidence is the concept of relevance. Evidence will not be admitted by a court unless it goes some way to show, either directly or indirectly, that a fact in dispute did or did not exist. The price of ham is irrelevant in an action by a customer against a shopkeeper from whose ham the customer contracted salmonella poisoning. However, courts, it is said, will not listen to everything that is relevant. Relevance and admissibility are separate concepts. The Law of Evidence says that certain kinds of relevant evidence cannot be taken into account.

Exclusion and Privileges

The rules of privilege which exist are as follows: the privilege against self-incrimination, legal professional privilege, litigation privilege, without prejudice negotiations and public policy immunity… in the exclusion of evidence which is often highly probative. These are founded on public policy, which require a court to ignore relevant evidence. There are other exclusionary rules including the opinion evidence rule, the rule against admitting evidence of findings by other courts about the facts in dispute and the rule – which applies only in criminal trials- that evidence of a criminal defendant’s propensity to commit crime in general or a particular crime should not be admitted. The best known exclusionary rule is the hearsay rule. The object of this rule is to limit a witness’s evidence when offered to prove the facts asserted to things which the witness perceived with his own five senses: that is to say, things which he has seen, heard, felt, smelt and tasted.

It is found that because these exclusionary rules obstruct discovery of the truth many exceptions to the rules have been recognised. For example, a confession by a criminal defendant is hearsay. It is nonetheless admissible, but only so long as it was not obtained through oppression or other dubious means. There are exceptions to all the private privileges and to public interest immunity. The opinion evidence rule has been partially eroded. Statutory inroads have been made into the rule against evidence of prior determinations and the propensity evidence rule is not absolute.

Researched- Presenting Evidence to the Court: When evidence takes the form of a document there are a number of rules which stipulate whether the document is acceptable quite apart from any issue of relevance or infringement of an exclusionary rule. For example, there are rules about the use of copies and the proper authentication of documents. There are also rules about the production of real evidence (objects) and the conduct of views and demonstrations (excursions by the court).

The Evaluation of Evidence– The general rule is that the party initiating proceedings, and seeking to establish liability, bears the legal burden of persuading the court of his allegations. Sometimes, for policy reasons, the Law of Evidence reverses the burden of proof. Thus the defence and not the prosecution in a criminal trial has the burden of proving insanity. The Law of Evidence may go half-way in this direction by shifting the evidential burden of proof – the obligation to come forward with some evidence before the issue will be considered by the court – but not the legal burden of proof. The standard of proof tells us to what degree the evidence which is advanced by a party bearing the legal burden of proof must be persuasive. When the prosecution has the burden of proof in a criminal trial, which it has on most issues, it must prove the facts it alleges beyond reasonable doubt.

The Roles of Those who Make up the Court: Researched- In criminal trials for serious offences a judge still sits with a jury. The Law of Evidence determines the role which each plays. The division of functions is not entirely clear-cut. The basic rule is that law is for the judge and fact for the jury. Decisions about the admissibility of evidence are taken by the judge even when they hinge on questions of fact. The Law of Evidence was originally almost entirely judge-made. However, increasingly the legislature has intruded into this area of the law and the study of Evidence, like the study of most legal subjects, requires a familiarity with both the common law and statute law… As a general proposition the Law of Evidence is the same for civil and criminal disputes, although both the common law and statutes have made certain changes to the rules as they apply in criminal proceedings. For example, the standard of proof is more demanding in criminal proceedings, the reception and evaluation of evidence is more stringently regulated and limits have been set on the permissible scope of cross-examination of the accused if he decides to go into the witness box.

The Law of Evidence has been fashioned to accommodate the adversarial system in which it operates. The rules assume that the parties have responsibility for determining the evidence to be presented to the court. If the adversarial system were to go the rationale for many of the rules would disappear… The trend is towards greater admissibility; of limiting the scope and operation of the various exclusionary rules with the goal of creating a rational body of rules and principles to aid the court to discover the truth about the facts in dispute. (Culled, ibid,

Researched- What is Evidence? Any matter of fact that a party to a lawsuit offers to prove or disprove an issue in the case. A system of rules and standards that is used to determine which facts may be admitted, and to what extent a judge or jury may consider those facts, as proof of a particular issue in a lawsuit.

Until 1975, the law of evidence was largely a creature of the Common Law: Evidence rules in most jurisdictions were established by cases rather than by organized, official codifications. Legal scholars long pushed for legislation to provide uniformity and predictability to the evidentiary issues that arise during litigation. [In the United States,] Following a lengthy campaign begun by the American Law Institute, which drafted its Model rules of evidence in 1942, and the National Conference of Commissioners on Uniform State Rules, which drafted the Uniform Rules of Evidence in 1953, Congress in 1975 adopted the Federal Rules of Evidence. The Federal Rules of Evidence are the official rules in federal court proceedings… Both state and federal rules serve as a guide for judges and attorneys so that they can determine whether to admit evidence- that is, whether to allow evidence to be observed by the judge or jury making factual conclusions in a trial.

Researched- One important benchmark of admissibility is relevance. The goal of this rule is to allow parties to present all of the evidence that bears on the issue to be decided, and to keep out all evidence that is immaterial or that lacks Probative value. Evidence that is offered to help prove something that is not at issue is immaterial. For example, the fact that a defendant attends church every week is immaterial, and thus irrelevant, to a charge of running a red light. Probative value is a tendency to make the existence of any material fact more or less probable. For instance, evidence that a murder defendant ate spaghetti on the day of the murder would normally be irrelevant because people who eat spaghetti are not more or less likely to commit murder, as compared with other people. However, if spaghetti sauce were found at the murder scene, the fact that the defendant ate spaghetti that day would have probative value and thus would be relevant evidence.

Witnesses: Researched– The most common form of evidence is the testimony of witnesses. A witness can be a person who actually viewed the crime or other event at issue, or a witness can be a person with other relevant information- someone who heard a dog bark near the time of a murder, or who shared an office with the defendant and can describe her character and personality. Any competent person may testify as a witness, provided that the testimony meets other requirements, such as relevancy. To be admissible, testimony must be limited to matters of which the witness has personal knowledge, meaning matters that the witness learned about using any of his or her senses. Second, the witness must declare under oath or affirmation that the testimony will be truthful. The purpose of this is to “awaken the witness’ conscience and impress the witness’ mind with the duty to [be truthful]” (Fed. R. Evid. 603). The oath or affirmation requirement also serves as a ground for perjury if the witness does not testify truthfully. Although the oath frequently invokes the name of God, the witness need not possess any religious beliefs; a secular affirmation is sufficient.

Witnesses may be called to testify by any party to the lawsuit. The party who calls a witness to testify generally questions the witness first, in what is known as direct examination. The judge may exercise reasonable control over the questioning of witnesses in order “(1) to make the interrogation and presentation effective for the ascertainment of the truth; (2) to avoid needless consumption of time, and (3) to protect the witnesses from harassment, or undue embarrassment” (Fed. R. Evid. 611(a)). The judge may prevent a witness from rambling in a narrative fashion and may require an attorney to ask specific questions in order to ascertain the truth quickly and effectively.

Judicial Notice: Some matters that are relevant to a trial are so obvious that a court will not require evidence to prove them- for example, that it is dark outside at midnight, or that April 30, 1995, fell on a Sunday. To prevent wasting a court’s time, the rules of evidence permit courts to take Judicial Notice of such matters; that is, to accept them as true without formal evidentiary proof. Courts may take judicial notice of facts that are generally known to be true (e.g., that gasoline is flammable) or facts that are verifiable from dependable sources (For example, what is the capital city of Ghana?)

Researched- Privileges: It is a basic tenet in United States’ Jurisprudence that “the public … has a right to every [person’s] evidence,” and that parties in litigation should avail themselves of all rational means of ascertaining truth (Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 [1980]). Yet courts view certain interests and relationships to be of such importance that they protect those interests and relationships from certain efforts to gather evidence. These protections, or exclusions from the general rule of free access to evidence, are known as privileges.

To encourage clients to communicate freely with their lawyers and to fully disclose any information that may enable their lawyers to provide appropriate legal advice, courts allow clients to refuse to disclose and to prevent any other person from disclosing confidential communications made when seeking legal services. This privilege applies to clients’ communications with their attorneys and with the attorneys’ office staff. It protects only confidential communications, not communications made to friends or acquaintances in addition to an attorney. The Attorney-Client Privilege applies to the client but not the attorney, has the right to waive the privilege and to testify regarding protected communications. The privilege does not terminate even when the attorney-client relationship does. The privilege does not apply to a client’s allegations of a breach of duty by the attorney.

 CONCLUSION: The Law of Evidence is designed to honour Law and Justice. But Ross- a member of the Scandinavian Realist School of Jurisprudence says: “To invoke justice is the same as banging on the table- an emotional expression which turns one’s demand into an absolute postulate”. (On Law and Justice, 1958, p. 274). For Tenzin Gyatso- the fourteenth Dalai Lama of Tibet, justice is an inescapable truth: “In the end, the innate desire of all people for truth, justice and human understanding must triumph over ignorance and despair.” (Freedom in Exile, 1991, pp.88-9)



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Gina is the Director of Health and Publisher, JusticeGhana Group.

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