Key Concepts Flashcards
(8 cards)
What are the basic classifications of evidence?
Evidence consists of the testimony, hearsay, documents, things and facts which a court will accept as evidence of the facts in issue in a given case.
What are main facts in issue
The main facts in issue are all those facts which the plaintiff (or applicant or petitioner) in a civil action, or the prosecutor in criminal proceedings, must prove in order to succeed, together with any further facts that the defendant (or respondent) or accused relies on in order to establish a defence. The main facts in issue in a particular case can only be ascertained by reference to the substantive law and any procedure which defines the issues, for example pleadings.
What are subordinate or collateral facts?
Subordinate or collateral facts which may be in issue are (a) those affecting the credibility of a witness, and (b) those affecting the admissibility of certain items of evidence. They may be in issue in a particular case on account of the law of evidence itself, and not on account of the substantive law or pleadings.
Describe the relationship of testimony to the other items of evidence.
Testimony is the assertion of a witness in court, offered as evidence of the truth of that which is asserted. Many of the rules of evidence, such as those concerned with the oath or affirmation, the competency of witnesses and their cross-examination, are designed to ensure that testimony shall be as reliable as possible. There is a sense in which testimony is the only item of judicial evidence. Oral hearsay, when admissible, has to be narrated to the court; if hearsay is contained in a document, the document must usually, though not invariably, be produced to the court and identified by a witness. The same is true of things, and circumstantial evidence can usually only be proved by a witness. In all the other cases, however, testimony is used for a widely different purpose from that of inducing the court to accept the witness’s direct assertion concerning a fact in issue, and that is why hearsay, documents, things, and facts, though normally proved by a witness, may properly be regarded as separate items of evidence.
Define circumstantial evidence
Any fact (sometimes called an “evidentiary fact”, factum probans or “fact relevant to the issue”) from the existence of which the judge or jury may infer the existence of a fact in issue (sometimes called a “principal fact” or factum probandum).
What is direct evidence and how it distinct from circumstantial evidence?
The term “Direct evidence” is employed in two senses. In its first sense “direct evidence” is testimony, as contrasted with hearsay, and may therefore be defined as an assertion made by a witness in court offered as proof of the truth of any fact asserted by the witness, including the witness’s own mental or physical state at a given time. In its second sense, “direct evidence” means a witness’s statement that the witness perceived a fact in issue with one of the five senses, or was in a particular mental or physical state if that is in issue; and the contrast is with circumstantial evidence. When someone testifies to having seen an alleged murderer carrying a blood-stained knife, the evidence is direct in the first sense, but not in the second.
What are Wigmore’s classifications of evidence (i.e., the three ways the relevance of one fact to another may be established)?
Prospectant evidence - the occurrence of an act, state of mind or state of affairs in the past justifies an inference that the act was done, or state of mind or affairs existed, at the moment of time into which the court is inquiring. Examples:
- provisional presumption of continuance
- course of business (to prove that an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case)
- habit (the fact that someone was in the habit of acting in a given way is relevant to the question whether that person acted in that way on the occasion into which the court is inquiring).
- motive or plan (It can be relevant to show that the accused is the only person, or one of a relatively small group of persons, with the motive, the means or the opportunity to commit the crime charged)
- knowledge or capacity (facts which tend to prove or negative a person’s capacity to do an act into which the court is inquiring may be highly relevant).
Concomitant evidence - circumstances existing contemporaneously with the transaction into which the court is inquiring render the facts alleged by one or other of the parties more or less probable. Examples are evidence of opportunity, the reception of evidence as part of the res gestae and the use of standards of comparison.
Retrospectant evidence - (converse of prospectant) the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that an act was done, or that the state of mind or affairs previously existed.
