Forms of Evidence

Question 1

What are the different forms of evidence?

Answer 1

• Oral evidence, documentary, real, electronic, other probative matter and direct/circumstantial evidence

Question 2

1. Oral Evidence

Answer 2

• most common form of evidence
• defined as oral statements from witnesses on what they’ve seen or heard.
• such evidence must be given verbally in the presence of both parties - Witnesses must take an oath and be subjected to examination in chief, cross examination and re-examination.
• the weight that is attached to the testimony depends on the credibility of the witness which includes age, ability to communicate, demeanor, integrity, consistency of testimony.

Question 3

1.1 Questioning of the Witnesses

Answer 3

• Examination in Chief
• Cross Examination
• Re-examination

Question 4

1.1.1 Re-examination

Answer 4

• Initial questioning with the purpose of presenting evidence favorable to the party calling the witness.
• the state will examine the state’s witnesses.
• A question and answer technique is used.
• no Leading questions may be asked.

Question 5

1.1.2 Cross Examination

Answer 5

• questioning of the opponents witness
• fundamental procedural right as there is a right to challenge evidence.
• it is more hostile than any other stage but rude and abusive questions may not allowed in court.
• Leading questions may be asked.

Question 6

1.1.3 Re-examination

Answer 6

• conducted by the party who initially called the witness.
• opportunity to clear up any misunderstanding.
• no leading questions may be presented.

Question 7

1.2 Cautionary Rule

Answer 7

• this is part of determining the credibility of a witness.
• some forms of evidence need to be handled with caution and circumspection.
• it may be unreliable but is not necessarily inadmissible.
• the court is required to evaluate this evidence more strictly than other forms of evidence.

Question 8

1.2.1 Single Witness

Answer 8

• Single witnesses are treated with caution in courts.
• The court may find someone guilty based off of a single witness if the evidence is satisfactory in all material aspects.

Question 9

1.2.2 Children

Answer 9

• generally children evidence are treated with caution as it is assumed that may be unreliable due to the imagination of a child and the inexperience of the child.
• Special arrangements are made for children to testify in separate rooms called ‘in camera’ where the testimony is recorded.
• if the evidence is not accepted by the court, s185 of the CPA states that they must provide reasons as to why.

Question 10

1.2.3 Complainant in a Sexual Misconduct case

Answer 10

• In the past, the evidence of a complainant used to be treated with caution but not anymore.
• the rule was applicable to such because it was believed that it was easy for them to fabricate evidence.
• The cautionary rule may be used if it can be justified.
• in ‘S v Jackson’ the SCA abolished the cautionary rule as it was based on an outdated and irrational idea.
  EG: In ‘S v M’, the judge applied the cautionary rule as it was clear the complainant had a grudge against the accused. The legislature abolished the rule as per s60 of the Criminal Law Amendment Act.

Question 11

1.3 Expert Evidence

Answer 11

• also known as a form of opinion evidence.
• Expert Evidence is given by Expert Witnesses who have specialized knowledge in a particular field.
• Experts are called as witnesses in matters which cannot be decided without expert guidance.
• the party calling the expert witness must lay a foundation as to the relevance of the opinion and show that the expert has a specialized knowledge.
• the court is not obliged to follow the courts opinion.

Question 12

2. Documentary Evidence

Answer 12

• written documentation that is submitted as evidence.
• it can only be submitted as evidence if it is relevant.
• an affidavit is usually submitted to the court, which is less forceful than oral evidence as it cannot be cross examined.
• the documentation must be submitted by the witness that must prove its authenticity.
• the ‘best evidence rule’ applies here. The original copy is the best evidence that can be submitted rather than a copy, however, if the second evidence is the only proof of content, then it may be submitted.

Question 13

3. Real Evidence

Answer 13

• evidence in the form of objects.
• it must be relevant or it will be inadmissible.
• in some cases, the court will visit the crime scene which is called an ‘Inspection in Loco’ which is also real evidence ( in the van Breda case, the judge visited the home where the murder took place )

Question 14

4. Electronic Evidence

Answer 14

• ss15(1) and (2) of the ‘Electronic Communications and Transactions Act’ regulates the submission of electronic evidence.
• includes WhatsApp, texts, emails
• s15 states certain factors that courts must consider when evaluating electronic evidence. :
  1. the reliability of the manner at which the data was stored.
  2. the reliability of the manner in which the integrity of the data was obtained.
  3. the manner at which the originator was identified.
  4. the relevant factors.

Question 15

5. Other Probative Matters

Answer 15

1. Presumption:
   - This is an inference drawn by the court which does not have to be proven with evidence.
   - irrebuttable presumption cannot be challenged while a rebuttable presumption may be challenged.
2. Judicial Notice
   - the law of evidence allows a presiding officer to accept the truth of certain facts without the need to prove with evidence.

Question 16

6. Direct and Circumstantial Evidence

Answer 16

1. Direct
   - evidence that directly proves the facts of the case.
2. Circumstantial
   - evidence that does not directly prove the facts, but the court may draw inference from the facts using the rules of logic.