11 Evidence

Introduction

Evidence relates to the procedures in court, to discover evidence that relates to the trial.

“The best way to think about evidence, is to think about proof,” Jamie said”

“That’s because in court,” Mandy said, “are judges who are people, are jury who are people, and lawyers and the public who are also people.”

Even though you might not think about it, evidence is used everyday.

“Every time a boy is trying to impress you Mandy,” Joe said, “they’re providing evidence.”


“It might not even be oral evidence, and can include hand gestures, voice, confidence, and all sorts of other things,” Demi added.

Relevance

Relevance is at the core of evidence law, because of the limited resources of courts.

“If courts had to hear everything, every witness wanted to say, and every thing a person wanted to bring up,” Mandy begun, “we would be there for a loooong time.”

Evidence therefore must be directly relevant at proving or disproving a legal element.

For example, if the case relates to negligence, the legal elements would include showing that there was a duty of care, breach, and causation.

Exclusion of evidence

Evidence may be excluded due to unfairness if it was admitted. This isn’t that it is unfair to a party, but for example, that a confession is unreliable due to the surrounding issues, for example abuse by police.

“This is something decided by police on public policy grounds,” Mandy commented, “because it’s unfair if police didn’t feed a person, didn’t attend to their medical cares, because that person’s confession would be essentially induced by that abuse, and may accordingly be unreliable.”

Witnesses

Witnesses are investigated by direct examination and cross-examination.

Direct examination is examination by the side who has called the witness.

“For example, if I call Selena as a witness for my case, and I ask her questions, this will constitute direct examination,” Jamie said.

During direct examination, generally, no leading questions may be asked. Leading questions are questions that suggest the answer the examiner is looking for. For example, “Selena, last night, you were with Demi weren’t you?” is a leading question. This is as compared with “Selena, who were you with last night?” which isn’t leading to an answer.

Cross-examination is examination by the opposing side who called the witness.

“For example, if I’ve concluded my examination of Selena (the witness), and I pass her to the other side, for example you Mandy,” Jamie begun, “this is cross-examination.”

Unlike direct examination, in cross, leading questions are permitted.

“This means I can ask Selena whether she was with Demi, rather than asking who she was with,” Mandy noted.

Hearsay

In the day-to-day sense, hearsay is where information is gathered where the person had no direct experience. For example, a person who testifies that Selena had told her, that she talked to Demi that night about Nick.

In the legal sense however, hearsay is an out-of-court statement which attempts to prove the truth of a matter asserted. For example, Demi telling the court that Selena told her, “I have a crush on Nick”, to prove that she has a crush on Nick – instead of calling Selena to the stand and asking her that question.

Hearsay evidence is generally inadmissible.

There are however, some exceptions.

Burden of proof

The burden of proof is generally upon the plaintiff (civil) or prosecution (criminal) who is making the case.

“For example, if you wanted to prove that Jamie had stolen your heart Mandy,” Joe said, “you’d have to prove that, because you’re the one who set out to make that statement, and therefore you’ve got to show why you think it’s true.”

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