Selected Evidence Terms

admissibility of evidence - The principles determining whether or not particular items of evidence may be received by the court. The central principle of admissibility is relevance. All irrelevant evidence is inadmissible, but evidence that is legally relevant may also be inadmissible if it falls within the scope of one of the exclusionary rules of evidence. See also conditional admissibility; multiple admissibility.

alibi - n. [from Latin: elsewhere] A defence to a criminal charge alleging that the defendant was not at the place at which the crime was committed and so could not have been responsible for it. If the defendant claims to have been at a particular place at the time of the crime, evidence in support of an alibi may only be given if the defendant has supplied particulars of it to the prosecution not later than seven days after committal, unless the Crown Court considers that there was a valid reason for not supplying them.

best-evidence rule A rule requiring that a party must call the best evidence that the nature of the case will allow. Formerly of central importance, in modern law it is largely confined to a rule of practice, not a requirement of law, that the original of a private document must be produced in order to prove its contents; if it cannot be produced its absence must be explained.

burden of proof The duty of a party to litigation to prove a fact or facts in issue. Generally the burden of proof falls upon the party who substantially asserts the truth of a particular fact (the prosecution or the claimant). A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue; and the evidential burden ( burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or nonexistence of a fact in issue.

The normal rule is that a defendant is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case by establishing both the actus reus of the crime and the mens rea. It must first satisfy the evidential burden to show that its allegations have something to support them. If it cannot satisfy this burden, the defence may submit or the judge may direct that there is no case to answer, and the judge must direct the jury to acquit. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent). If, however, the prosecution has established a basis for its case, it must then continue to satisfy the persuasive burden by proving its case beyond reasonable doubt (see also proof beyond reasonable doubt). It is the duty of the judge to tell the jury clearly that the prosecution must prove its case and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the defendant is entitled to be acquitted.

There are some exceptions to the normal rule that the burden of proof is upon the prosecution. The main exceptions are as follows. (1) When the defendant admits the elements of the crime (the actus reus and mens rea) but pleads a special defence, the evidential burden is upon him to create at least a reasonable doubt in his favour. This may occur, for example, in a prosecution for murder in which the defendant raises a defence of self-defence. (2) When the defendant pleads coercion, diminished responsibility, or insanity, both the evidential and persuasive burden rest upon him. In this case, however, it is sufficient if he proves his case on a balance of probabilities (i.e. he must persuade the jury that it is more likely that he was insane than not). (3) In some cases statute expressly places a persuasive burden on the defendant; for example, a person who carries an offensive weapon in public is guilty of an offence unless he proves that he had lawful authority or a reasonable excuse for carrying it.

character n.(in the law of evidence)1. The reputation of a party or witness. In civil cases the reputation of a party is not admissible unless it is directly in issue, as it may be in an action for defamation. In criminal cases the accused may call evidence of his good character or give evidence to show the bad character of the witnesses for the prosecution. If he does so, the prosecution may call evidence in rebuttal, but any such evidence must be limited to evidence of reputation and not include opinions about the accused's disposition. Evidence of the reputation for truthfulness of a witness may be given in both civil and criminal cases.

2. Loosely, the disposition of a party.

common law 1. The part of English law based on rules developed by the royal courts during the first three centuries after the Norman Conquest (1066) as a system applicable to the whole country, as opposed to local customs. The Normans did not attempt to make new law for the country or to impose French law on it; they were mainly concerned with establishing a strong central administration and safeguarding the royal revenues, and it was through machinery devised for these purposes that the common law developed. Royal representatives were sent on tours of the shires to check on the conduct of local affairs generally, and this involved their participating in the work of local courts. At the same time there split off from the body of advisers surrounding the king (the curia regis) the first permanent royal court – the Court of Exchequer, sitting at Westminster to hear disputes concerning the revenues. Under Henry II (reigned 1154–89), to whom the development of the common law is principally due, the royal representatives were sent out on a regular basis (their tours being known as circuits) and their functions began to be exclusively judicial. Known as justiciae errantes (wandering justices), they took over the work of the local courts. In the same period there appeared at Westminster a second permanent royal court, the Court of Common Pleas. These two steps mark the real origins of the common law. The judges of the Court of Common Pleas so successfully superimposed a single system on the multiplicity of local customs that, as early as the end of the 12th century, reference is found in court records to the custom of the kingdom. In this process they were joined by the judges of the Court of Exchequer, which began to exercise jurisdiction in many cases involving disputes between subjects rather than the royal revenues, and by those of a third royal court that gradually emerged – the Court of King's Bench (see Court of Queen's Bench). The common law was subsequently supplemented by equity, but it remained separately administered by the three courts of common law until they and the Court of Chancery (all of them sitting in Westminster Hall until rehoused in the Strand in 1872) were replaced by the High Court of Justice under the Judicature Acts 1873–75.

2. Rules of law developed by the courts as opposed to those created by statute.

3. A general system of law deriving exclusively from court decisions.

competence n.(of witnesses) The legal capacity of a person to be a witness. Since the abolition in the 19th century of certain ancient grounds of incompetence, every person of sound mind and sufficient understanding has been competent, subject to certain exceptions. For example, a child may be sworn as a witness only if he understands the solemnity of the occasion and that the taking of an oath involves an obligation to tell the truth over and above the ordinary duty of doing so. However, under the Youth Justice and Criminal Evidence Act 1999, a child below the age of 14 years may only give unsworn evidence. Since the Police and Criminal Evidence Act 1984 and the subsequent 1999 amendments, the spouse of an accused is generally a competent witness for the prosecution (subject to some exceptions) and compellable for the accused (subject to some exceptions).

confession n. An admission, in whole or in part, made by an accused person of his guilt. At common law, confessions were admissible if made voluntarily, i.e. not obtained as a result of some threat or inducement held out by a person in authority (such as a police officer). They are now governed by the Police and Criminal Evidence Act 1984, which requires the prosecution, if called upon to do so, to prove beyond a reasonable doubt that the confession was not obtained by oppression of the person who made it or as a result of anything that was likely to render the confession unreliable. A confession may also be ruled to be inadmissible if the civil rights of the accused have been breached, for example if he has been denied access to legal advice.

corroboration n. Evidence that confirms the accuracy of other evidence “in a material particular”. In general, English law does not require corroboration and any fact may be proved by a single item of credible evidence. The obligation to warn the jury of the dangers of acting on uncorroborated evidence of accomplices or of complainants in cases of sexual offences has been abolished: the judge now has a discretion to indicate the dangers of a jury relying on particular evidence. Corroboration remains mandatory in cases of treason and perjury and for opinion evidence as to some matters, e.g. speeding.

cross-examination n. The questioning of a witness by a party other than the one who called him to testify. It may be to the issue, i.e. designed to elicit information favourable to the party on whose behalf it is conducted and to cast doubt on the accuracy of evidence given against that party; or to credit, i.e. designed to cast doubt upon the credibility of the witness. Leading questions may be asked during cross- examination. See also credit.

disclosure n.1. (in contract law) See nondisclosure; uberrimae fidei.

2. (in company law) (a) A method of protecting investors that relies on the company disclosing and publishing information, which is then evaluated by the investors, their advisers, and the press. See also Stock Exchange. (b) A method of regulating the conduct of directors and promoters by requiring them, on fiduciary principles or by statutory provisions, to disclose to the company any relevant information, e.g. an interest in a contract with the company.

duress n. Pressure, especially actual or threatened physical force, put on a person to act in a particular way. Acts carried out under duress usually have no legal effect; for example, a contract obtained by duress is voidable (see also economic duress; undue influence). In criminal law, when the defendant's power to resist is destroyed by a threat of death or serious personal injury, he will have a defence to a criminal charge, although he has the mens rea for the crime and knows that what he is doing is wrong. Duress is not a defence to a charge of murder as a principal (i.e. to someone who actually carries out the murder himself), although it is still a defence to someone charged with aiding and abetting murder. The threat need not be immediate; it is sufficient that it is effective; for example a threat in court to kill a witness may constitute duress and thus be a defence to a charge of perjury, even though it cannot be carried out in the courtroom. However, the defence is unavailable to someone who failed to take available alternative action to avoid the threat. See also coercion; necessity; self-defence.

estoppel n. [from Norman French estouper, to stop up] A rule of evidence or a rule of law that prevents a person from denying the truth of a statement he has made or from denying facts that he has alleged to exist. The denial must have been acted upon (probably to his disadvantage) by the person who wishes to take advantage of the estoppel or his position must have been altered as a result. There are several varieties of estoppel. Estoppel by conduct (or in pais) arises when the party estopped has made a statement or has led the other party to believe in a certain fact. Estoppel by deed prevents a person who has executed a deed from saying that the facts stated in the deed are not true. Estoppel by record (or per rem judicatam) prevents a person from reopening questions that are res judicata (i.e. that have been determined against him in a previous legal proceeding). See also issue estoppel.

There are two forms of equitable estoppel – promissory and proprietary. The doctrine of promissory estoppel applies when one party to a contract promises the other (by words or conduct) that he will not enforce his rights under the contract in whole or in part. Provided that the other party has acted in reliance on that promise, it will, though unsupported by consideration, bind the person making it: he will not be allowed subsequently to sue on the contract. When applicable, the doctrine thus modifies the common-law rules relating to accord and satisfaction. Under the doctrine of proprietary estoppel, the courts can grant a discretionary remedy in circumstances where an owner of land has implicitly or explicitly led another to act detrimentally in the belief that rights in or over land would be acquired. The remedy may take the form of the grant of a fee simple in the property at one extreme or the grant of a short-term occupational licence at the other.

hearsay evidence Evidence of the statements of a person other than the witness who is testifying and statements in documents offered to prove the truth of what was asserted. In general, hearsay evidence is inadmissible (the rule against hearsay) but this principle is subject to numerous exceptions. In civil cases, the Civil Evidence Act 1995 abolished the rule against hearsay. The 1995 Act provides that what in civil litigation would formerly have been called “ hearsay evidence” may be used when a notice of the intention to reply on that evidence is given. It is for the court to decide at trial what weight to put on any particular evidence, whether it is hearsay or not. At common law, there are numerous exceptions applicable to both civil and criminal cases, e.g. declarations of deceased persons, evidence given in former trials, depositions, admissions, and confessions. Some exceptions apply only to criminal cases, e.g. dying declarations and statements admitted under the Criminal Justice Act 1988 (which makes most first-hand hearsay and certain business documents admissible). See also admissibility of records; original evidence.

hostile witness An adverse witness who wilfully refuses to testify truthfully on behalf of the party who called him. A hostile witness may, with the permission of the court, be cross-examined by that party, for example by putting to him a previous statement that is inconsistent with his present testimony.

imputation n. An allegation of misconduct or bad character made by an accused against the prosecutor or one of his witnesses. When this occurs the accused may (under the Criminal Evidence Act 1898), with leave of the court, be cross-examined about his own previous convictions and bad character. Under the Criminal Justice and Public Order Act 1994 allegations made against the character of a deceased victim may lead to cross-examination of the accused as to his character.

judicial discretion The power of the court to take some step, grant a remedy, or admit evidence or not as it thinks fit. Many rules of procedure and evidence are in discretionary form or provide for some element of discretion. In criminal cases, under the provisions of the Police and Criminal Evidence Act 1984, the court may exclude prosecution evidence if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The Court of Appeal is reluctant to review the exercise of discretion by trial judges.

judicial notice ( judicial cognizance) The means by which the court may take as proven certain facts without hearing evidence. Notorious facts (i.e. matters of common knowledge) may be judicially noticed without inquiry; some other facts (e.g. matters that can easily be checked in a standard work of reference and are reasonably indisputable) may be noticed after inquiry. When judicial notice has been taken, evidence in rebuttal is not permitted.

opinion evidence Evidence of the opinions or beliefs of a witness, as opposed to evidence of facts about which he can give admissible evidence. At common law, opinion evidence is in general inadmissible but this rule is subject to many exceptions. Thus a nonexpert witness may testify as to age, speed of vehicles, handwriting, or identity. Expert witnesses (e.g. doctors) may give their opinions on any matter falling within their expertise. At common law, a witness could not give his opinion on an ultimate issue (i.e. the question that the court had to decide) but this rule, which was not very strictly applied in practice, was relaxed in respect of civil cases by the Civil Evidence Act 1972. See also hearsay evidence.

presumption n. A supposition that the law allows or requires to be made. Some presumptions relate to people, e.g. the presumption of innocence and of sanity (see entries below). Others concern events, e.g. the presumption of legality (omnia praesumuntur rite et solemniter esse acta: all things are presumed to have been done correctly and solemnly). Most relate to the interpretation of written documents, particularly statutes (see interpretation of statutes). Almost every presumption is a rebuttable presumption, i.e. it holds good only in the absence of contrary evidence. Thus, the presumption of innocence is destroyed by positive proof of guilt. An irrebuttable presumption is one that the law does not allow to be contradicted by evidence, as, for example, the presumption that a child below the age of 10 is incapable of committing a crime (see doli capax). See also equitable presumptions.

real evidence Evidence in the form of material objects (e.g. weapons). When an object is admitted in evidence, it is usually marked as an exhibit. Documents are not usually classified as real evidence, but may be treated as such if the physical characteristics of the document (rather than its content) are of significance. Some authorities include evidence of identification and the demeanour of witnesses within the classification of real evidence.

res gestae [Latin: things done] The events with which the court is concerned or others contemporaneous with them. In the law of evidence, res gestae denotes: (1) a rule of relevance according to which events forming part of the res gestae are admissible; (2) an exception to the rule against hearsay evidence under which statements forming part of the res gestae are admissible, for example if they accompany and explain some relevant act or relate to the declarant's contemporaneous state of mind or his contemporaneous physical sensations.

res ipsa loquitur [Latin: the thing speaks for itself] A principle often applied in the law of tort of negligence. If an accident has occurred of a kind that usually only happens if someone has been negligent, and the state of affairs that produced the accident was under the control of the defendant, it may be presumed in the absence of evidence that the accident was caused by the defendant's negligence.

similar - fact evidence Evidence that a party, especially the accused, has on previous occasions misconducted himself in a way similar to the misconduct being alleged against him in the proceedings before the court. The evidence frequently takes the form of a previous conviction. In general, the prosecution may not offer similar- fact evidence as part of its case unless it can be shown to be relevant to an issue before the jury, for example by rebutting some defence advanced by the accused. Thus, if a person charged with fraud contends that he was honestly mistaken, the fact that he has committed similar frauds on previous occasions may be admissible. The judge may in his discretion exclude otherwise admissible similar- fact evidence under section 78 of the Police and Criminal Evidence Act 1984 if he considers that it would have an adverse effect on the fairness of the proceedings.

standard of proof The degree of proof required for any fact in issue in litigation, which is established by assessing the evidence relevant to it. In criminal cases the standard is proof beyond reasonable doubt (see also burden of proof); in civil cases (including divorce petitions) the standard is proof on a balance of probabilities.

testimony (testimonial evidence) n. A statement of a witness in court, usually on oath, offered as evidence of the truth of what is stated.

voir dire (voire dire) [Norman French: to speak the truth]

1. The preliminary examination by a judge of a witness to determine his competence or of a juror to determine his qualification for jury service.

2. An inquiry conducted by the judge in the absence of the jury into the admissibility of an item of evidence (e.g. a confession). It is sometimes called a trial within a trial.

3. Formerly, a special oath taken by witnesses called to testify on the voir dire.

Source: A Dictionary of Law. Ed. Elizabeth A. Martin. Oxford University Press, 2002. Oxford Reference Online. Oxford University Press. 27 October 2004 www.oxfordreference.com

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Oxford University Press, Online Resource Centre, Selected Evidence Terms.

Selected Evidence Terms