Meaning, Nature and purpose of Evidence law

 The word “ evidence” is originated from a Latin term “evidentia” which means to show clearly, to make clear to the sight to discover clearly
certain, to ascertain or to prove.

 Evidence is something, which serves to prove or disprove the existence or non-existence of an alleged fact. The party who alleges the existence
of a certain fact has to prove its existence and the party, who denies it, has to disprove its existence or prove its non-existence.

 Evidence is the means of satisfying the court of the truth or untruth of disputed fact between the parties in their pleadings.  
 DER defines evidence, as “ a means whereby any alleged matter of fact, the truth of which is submitted to investigation, is proved and includes
statements by accused persons, admission, Judicial notice, presumptions of law, and observation by the court in its Judicial capacity”.

 Robert Arthur Melin defined evidence law as follows: The law of evidence is the body of legal rules developed and enacted to govern:

A. Facts that may be considered in court:-This is the issue of relevant evidence that one should adduce before the court to support his allegation.
1. Facts in issue
2. Facts relevant to facts in issue
B. The methods of securing consideration of these facts
1. By proof

i. Real (e.g. documentary, exhibits) evidence

ii. Oral evidence

2. Certain facts, which need not be proved

i. Judicial notice- Facts so notorious as to be facts in public knowledge ,capable of being verified by authoritative texts
ii. Judicial admission (facts admitted in pleadings, at open court, in examination of parties, in testimony etc.)

C. The party that must secure consideration of what facts: This is about burden of proof and degree of proof required to win the case.                    
D. At the Appeal level evidence law can be said deal with the effect of failure to comply with rules in any of the above categories of evidence law
(e.g. improper admission or rejection of evidence)

Nature of Evidence law

 Law of evidence is categorized under adjective law together with procedural laws, both criminal and civil procedure. There are certain issues
procedural laws never address and are left to evidence law. For instance, in the procedural law you did not study about the standard of proof, facts
to be proved or need not be proved and the valve to be given to each term of evidence etc. These are left to evidence law therefore evidence law is
not strictly speaking procedural law, but shares the commonality with procedural laws in the sense that both are means to the enforcement of the
substantive law.

 Law of evidence has more of the smell of the courtroom than most law school classes and it offers the opportunity for some court- room type
exercises. But it cannot hope to duplicate the reality of the court room. Because the process of proof involves many participants, and it is
impossible to regulate each and every action of those participants by the law of evidence unless we interpret the rules in line with purpose of the
law of evidence in general and the rationale behind of the specific rule in particular.  

Purpose /significance of Evidence law.

 Provides the court with information:- Proving facts through the presentation of evidence means convincing court to accept a particular version of
events.
 regulates the process of proof: The rule of civil and criminal evidence, in conjunction with the rules of procedure, establish the frame work for
the process of proof and the conduct of litigation, so that a lawyer advising his client or preparing his case for trial or presenting it to the court or
tribunal will know what issues his client must prove in order to succeed.  
 Establishing and regulating the rules relating to the process of proof in proceedings in courts and tribunals.
 especially in criminal cases, law of evidence stands to protect the accuser’s right to affair trial for instance, by containing many rules which
excludes potentially relevant evidences like the general rule that evidence of the defendant's character and previous convictions will not be
admitted at trial
Development of Evidence law          

The need for evidence was well known by ancient Greeks, Egyptians and Mesopotamians.

The present rules and principles of evidences are the outcome of the successive development, conducted in different stages of human civilization.

The evidences which were applicable at that ancient time were irrational.    

 Proof by ordeals:- In different parts of the world ordeals were used to identify the person who did wrong. Ordeal is about subjecting somebody
to undergo a painful experience like walking on fire, holding glowing with heat, put hands in to boiling water etc.. The idea is that where a
person who underwent the ordeals is not seriously affected like when the wound that resulted from the ordeal normally cures it is taken as a
proof of innocence. If it, however, gets infection this is taken as proof of guilt. There was proof by battle. Here the victim and the accused
required to fight to each other. And if the victim wins the accused, the accused will be considered as criminal and convicted. While if the
accused wins the victim, the accused will be free.  
  Proof by oath  :- the accused/ defendant lad required to take an oath before his testimony in his own case

 In a traditional highland Ethiopia that is in previous times, different methods of proof were applied to ascertain the commission of an act by a
suspect. Firstly, the “laeba shai” method was applied to solicit admission from a suspect in the time when it becomes difficult to get witnesses.
In this method of proof, a person was made to drink some herbal solution that would intoxicate him and he was left to run amuck and whoever
is implicated by this person would be considered as the criminal.  
 “Afersata” or “awchachigh”:- This method involves the participation of the whole community. This seems that since the crime is against the
community themselves, the member of the society may detect the crime and the criminal in secret manner, for instance by indicating the name
of the criminal through poem.  

Evidence in civil and common law legal systems

Common law legal system

 Laws are not codified

 Oath is important and oral evidence
 The system is adversary (the parties are obliged to gather evidence)
 There is cross examination and impeachment of witnesses
 Practice of hearsay evidence
 It is considered best if no one is a witness in his own case.

Continental law legal system

 Laws are codified

 Emphasis is given to documentary evidence rather than the oral
 Rules of evidence are found scattered in different laws
 employ the ''inquisitorial system'' of inquiry, the court question witnesses, directs the police investigation, commissions the service of expert
witness and examines all relevant evidences.
 parties themselves are competent witnesses in their own case.

  Relevance and admissibility of evidences

 Fact means anything or relations of things capable of being perceived by the senses and includes any mental conditions of which a person is
conscious
 Some of the facts are mental (internal or psychological facts) and some of the facts are physical (external facts).

 Fact in issue is the fact, which is disputed between the parties and to be resolved by the help of evidence. Issue arises when a certain fact alleged
to exist is denied by the other.

Relevant facts

 the form of the evidence, whether testimonial, documentary, real, direct or circumstantial, to be admissible evidence
 Needs to be both logically and sufficiently relevant
 In accordance with Rule 3 of DER, “Relevant fact” means any fact which directly or inferentially leads to one of the conclusions necessary to the
proof or disproof of a fact in issue and a fact is said to be relevant to another when one is connected with the other in any of the ways mentioned
in the Rules
 any evidence which proves fact in issue directly or which proves relevant fact is relevant evidence
 Relevant evidence has two components: materiality and probative value. Materiality refers the relational aspect of relevancy. For evidence to be
relevant a logical relationship needs to be established between the evidence tendered and the fact to be proved. If the evidence is offered to help
prove a proposition which is not in issue the evidence is immaterial  
 Probative value:- This requires relevant fact to have the capacity to prove. The point is that mere connection but without probative value does
not serve any purpose.

Facts Relevant to facts in issue

- Facts that evidence may be submitted in addition to fact in issue. 

a. Facts forming part of the same transaction (Res-Gestae)

Rule 7 of DER state that: Any fact is relevant which, though not in issue, is so connected with a fact in issue as to form part of the same transaction
whether both facts occurred at the same time and place or  at different time and place, 

Res-Gestae: things done or said in the course of a transaction.

b. Facts being the occasion, cause or effect of facts in issue

Rule 8 of DER states that Any fact is relevant which is the occasion, cause or effect, immediate or otherwise of facts in issue or relevant facts or
which constitutes the state of things under which such facts happened or which affords an opportunity for their occurrence or transaction.

c. Motive, preparation, and previous and subsequent conduct

Motive is the compelling force to do a certain act

 Motive leads to a specific intent the realization of which may be preceded by preparation. Preparation is normally refers to things you do to a result
by trying to obtain the means. Preparation on the part of the accused to accomplish the crime charged, or to prevent its discovery or to aid his
escape, or to a avert suspicion from himself are relevant on the question of his guilt. 

The conduct of a party in relation to a fact in issue is relevant whether such conduct is previous or subsequent to the occurrences of the fact in issue,
for example, murder, theft etc.

Relevancy of Confession

Judicial admission to be acceptable as evidence, the court should have a confidence on the truth of it. The accused may voluntarily confess for all
sort of reasons, for instance to protect someone or to avoid embarrassment for themselves or others even where they are innocent of the allegations
made against them. Thus, unless a given confession is true it shall not be relevant evidence. And court may require the prosecution to call evidence.
This is the case of excluding a confession on the ground of unreliability.

Even though the given confessions are true, they are made inadmissible if they are obtained in violation of rules of procedure.

An out of court confession to be admissible it should be the one which is made before the police officer or person in authority during the course of
interrogation. Here, confessions made to other persons other than person in authority are inadmissible.  

Relevancy of Circumstantial Evidence

Circumstantial evidence is evidence that proves a certain fact indirectly. This evidence is depends on the surrounding circumstances. And those
circumstances are facts, which should be proved by, evidence and which enables us to make inferences about the existence and non-existence of the
alleged or disputed fact.  

Relevant but inadmissible facts

Relevancy is a necessary condition for admissibility. However it is not a sufficient condition to guarantee fact to be admissible in court of law or
before other decision making organ authorized by law. This is because there are legal prohibitions against some relevant facts to be produced as
evidence for social and public policy reasons
Evidence is in admissible if rejected for some reason other than relevancy

Admissibility is, therefore, abroad concept under which rules for exclusion of evidence irrespective of its relevancy are grouped.

Modalities of evidence

1. ORAL EVIDENCE

“Verbal evidence: This is given by word of mouth: the oral testimony given by witnesses in court”.

Testimony is a form of evidence obtained from witness who makes solemn statement or declaration of fact.

In addition, to testify means the making of a statement under oath or affirmation in a judicial proceeding: to make a solemn declaration under oath or
affirmation for the purpose of establishing proof of some fact to the court.

It is always a sense perception (i.e. the witness testifies to the fact he/she perceived through his/her sense organs). It is based on personal experience
or knowledge of witness

Usually made by oath or affirmation under penalty of perjure

Who can testify?

Only those who observe and the presumption is that everyone is capable of giving testimony but there are exceptions

1. Competence of witnesses

Competence refers to capacity of a person to do something

A competent witness is one who is fit and commonly gives his testimony before courts or a judicial proceeding under oath or affirmation

Types of Competency of Witnesses

General competency refers to the witness` ability to testify to facts he has observed.
To be included as witness in the general competency a person must possess the organic and moral capacities. This is to mean that the test to
competency relates to the ability to understand questions and give rational answers.

Competency of a person is determined by his ability to perceive, remember, communicate and understand the duty to tell truth.

Special competency refers to a witness's ability to testify to opinions or conclusions he has arrived at by evaluating facts he has observed, facts
presented to him by counsel or a combination of both types of facts.

The ability to analyze facts about which one testifies

Special competency of witnesses is subdivided in to two: layman’s opinion, and expert opinion given as testimonies.

A Lay witness is a witness with no expertise in the matter concerning which he testifies beyond that of the judge. This type of witness (one that is
not shown to have any special expertise in the subject matter concerning which he testifies) may testify to opinions based only on facts he has
observed, and may ordinarily venture opinions as to intoxication, age, appearance, general characteristics of weather, a value of service, conduct of
business, etc, and leaves the conclusion to the court, depending on the case and chiefly on the practice.

The opinion of expert witness may be required by the court or by either of the parties. To call expert testimony, the subject matter must be so
complex that judges should be assisted in forming proper judgment regarding the fact. Consequently, for an expert to be qualified as qualified witness
he must show special experience. But since this expertise is not present in the ordinary witness, the expert’s specialized competence must always be
shown before he will be allowed to venture his opinion.

Grounds of incompetence

1. Mental incapacity
2. Physical incapacity:- defects such as blindness, deaf or dumb may impair the power of observation to make a given witness incompetent to
testify. However, according to the general rule, physical incapacity is no bar to a witness's competency as long as he can understand the questions
put to him and give rational answers to those questions.

Rule 92(2) of DER by supporting the above assertion states that, if a person cannot speak, see and hear, he may still testify if questions can be put to
him in some accurate fashion and he can reply by signs or writing which can be accurately interpreted by some one sworn to do so accurately.
3. Legal interdiction (Conviction of a crime):- In present Ethiopia this is no longer a bar to competency of a witness. This can be inferred from the
substantive laws such as the FDRE Constitution and the procedural laws, i.e., Art 142 of the Criminal Procedure Code, and Art 268 of the Civil
Procedure Code, and etc. However, a witness may be asked about prior convictions to impeach his credit. In Ethiopia, if the witness is also the
defendant, the prosecutor may not impeach his credit by proof of prior conviction at any time prior to conviction in the case before the court.

4. Interest in the outcome of the case as ground of incompetence:- This ground of in competency covers different types of persons, i.e., parties to
the case, consanguinal and affinal relatives, other emotional grounds and so on. There is no such restriction in the present times. The ground has
no relevance with regard to the competency or incompetence of a witness.
5.

Examination of witness

1. Examination-in-chief is the processes where by a party who has called a witness to give evidence on his behalf elicits from that witness evidence
relevant to the issues and favorable to the examiner’s case.

is a question put by the calling party to the witness so that the latter will tell the story about the fact he is asked.

Leading question is prohibited. In other word, the examiner cannot suggest the answer he wants to receive and try to get that answer from the
witness.

2. Cross-examination follows immediately the examination-in chief, unless the courts for some reason post pones it. Cross-examination is the
method by which a party to an action probes the credibility of an adverse witness.. In asking such questions, the examiner tries to weaken the
testimony of a witness given through examination-in-chief. Cross-examination is a constitutional right constituting an important aspect of due
process of law and in criminal cases of the right of confrontation.
3. Re-examination logically results from the interaction between examination-in-chief and cross-examination. If testimony, which is giving in
answer to examination-in-chief, is discredited by cross-examination, or shown to be erroneous, doubtful or untrue the party who has called the
witness could re-examine the witness in the way to cure what is damaged during cross-examination.

Exclusionary rule: Privileges

A freedom from compulsion to give evidence, or a right to prevent or bar evidence from other sources, usually on grounds unrelated to the goals of
litigation.

Most privileges are designed to promote certain kinds of relationship, and particularly to promote confidential communication with in the socially
desirable relationships. So, privileges should not be conditional and must be protected at any time because uncertainty of coverage at the time of the
communication reduces the encouragement to communicate.

Policies underlying privileges

 to encourage desirable communication

 to protect the desired relationship itself
 to uphold the integrity of a profession
 to avoid futile efforts to coerce testimony against principled resistance
 to avoid likely perjury if so coerced; or to serve commonly shared principles of privacy, fairness, or morality.
 to advance economic policies, such as those protecting trade secrets, or to encourage voluntary compliance with law, as in the case of
privileges for certain required reports to government agencies,
 to limit governmental invasion of the security of individuals. The privilege against self-incrimination is an example.

Types of privileges

1. The right against self- incrimination

2. Governmental privileges

3. Professional confidentiality
 Attorney-client privilege
 Doctor-patient privileges
 Marital privileges
Documentary evidence

any matter expressed or described upon any substance by means of letters figures, marks, or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter. all documents product for the inspection of the court.

a type of written proof that is offered at a trial to establish the existence or nonexistence of a fact that is in dispute.

A piece of evidence is not documentary evidence if it is presented for some purpose other than the examination of the content of the document

Could be produced in hard or soft copy.

Documentary evidence is subject to specific forms of authentication, usually through the testimony of an eyewitness to the execution of the
document, or to the testimony of the witness who able to identify the handwriting of the purported author.

Documentary evidence is also subject to the best evidence rule, which requires that the original document unless there is a good reason not to do so.

Authentication is a mechanism of ascertaining authorship of the document (who author of a document is?) and genuineness of the document sought
to be introduced.

Modes of authentication

A) Admission of authorship by the writer

The writer him self may admit or concede that he is the author of a certain document and if this admission is a formal admission it will serve as a
conclusive proof to the issue of who the author of the document is?

B) Proof of signature or handwriting:

Production of a person or persons who witnessed the writing or signature; Attesting witnesses: certain documents are required by law (for example
article 1727 (2) of the civil code) to be attested by witnesses whose signature will be included in the document and document of these attesting
witnesses, when ever the authorship of an attested documents is questioned, is sufficient to prove that the author of the document is questioned, is
sufficient to prove that the author of the attested document is the one who signed on the document attested by witnesses.
C) Presumption as to documents not produced:-

According to Rule 74 of the DER, courts shall presume that every document called for and not produced after notice to produce was attested,
Stamped, and executed in the manner required by law.

D) Comparison of signature /writing with others admitted or proved:- The court will compare two writings/signatures of the same person and
may reach to the conclusion that the author/signatory of this specific document is the person whose writing is submitted to investigation. The
court may ask help of experts in so doing.
E) Opinions of experts:- Authentication by expert witnesses refers to proof of authorship depending on the opinion of a person who has specialty
on identifying the writing of persons. These persons are called expert witnesses for they form conclusions based on inferences

Best evidence rule

Authentication alone is not a sufficient for the admission of documentary evidence as proof but must also be qualified by the best evidence rule,
which states the contents of a document can only be proved by adducing the original document itself.

The rationale for the best evidence rule can be understood from the context in which it arose: in the eighteenth century a copy was usually made by
hand by a clerk (or even a litigant). The best evidence rule was predicated on the assumption that, if the original is not produced, there is a significant
chance of error or fraud in relying on such a copy.

parole evidence rule

restricts the use of extrinsic evidence be it oral or written and requires that the party proves his case exclusively by the evidence of the contents of a
writing.

As opposed to the best evidence rule, the parole evidence rule does not require that the evidence of the document be the document itself not oral or
other evidence of the contents. Instead, it simply limits proof of the fact to the contents of the writing and prohibits consideration of any evidence
which contradicts, alter, vary, change, and modify any of the terms or provisions of the written agreement.
 The rational behind the parole evidence rule is that the parties by reducing their agreement to writing are regarded as having intended the writing
they signed to include the whole of their agreement.

If parties have agreed to change their previous agreement to a written document then the written document will be taken

Criteria for parole evidence rule

1. You have to determine whether the parties intended the written document to be the final written document.
2. You have to determine whether there is a partial or total integration of the prior and or written agreement

REAL EVIDENCE

It Comprises of documents and physical objects in various forms. Not all documents and physical objects are real evidences to prove a fact unless
they satisfy the tests of authentication and corroboration, respectively.

Demonstrative evidence concerns it self with any type of physical objects which are capable of being inspected by the court and demonstrate the
existence of a fact in issue

Physical evidence or demonstrative evidence is any evidence introduced in a trial in the form of a physical object, intended to prove a fact in issue
based on its demonstrable physical characteristics. Physical evidence can conceivably include all or part of any object.

Where physical evidence is of a complexity that makes it difficult for the average person to understand its significance, an expert witness may be
called to explain to the court the proper interpretation of the evidence at hand.

Demonstrative evidence is evidence in the form of a representation of an object. Examples include photos, x-rays, videotapes, movies, sound
recordings, diagrams, maps, drawings, graphs, animations, simulation, and models. It is useful for assisting a finder of fact (fact-finder) in
establishing context among the facts presented in a case. To be admissible, a demonstrative exhibit must “fairly and accurately” represent the real
object at the relevant time

Demonstrative evidence is evidence that illustrates or helps explain oral testimony, or recreates a tangible thing, occurrence, event, or experiment.
BURDEN AND STANDARD OF PROOF

Burden of proof refers to the obligation to prove allegations, which are presented, in a legal action

Burden of production

Burden of producing evidence is the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue

Burden of persuasion

A party’s duty to convince the fact-finder to view the facts in a way that favors that party

Burden of proof in civil actions

The burden of proof under civil law of Ethiopia is dependent up on the issue to be proved or the allegation (claim) raised by the party.

Where the plaintiff is entitled to begin the proceeding, he/she is the one to prove the issue so that he/she bears the burden of proof. However, in case
of affirmative defense where the defendant is entitled to begin, he shoulders the burden of proof on the grounds he may raise as a defense

 Burden of Production in civil cases

Art 259(1) of the civil procedure code provides that the burden of producing evidence in support of a claim is imposed on the plaintiff. While sub-
article 2 of the same provision imposes burden of production of evidence on the defendant. This article clearly stipulates that both the plaintiff and
the defendant shoulder burden of production of evidence on the same case proving facts oppositely.

 Burden of persuasion in civil cases

when the party who shoulders burden of production produces what he/she may consider enough to prove the issue in the case the other party may
rebut such evidences so that the former party may not be successful for such fact that he has produced evidenced unless he persuades the Judge.

Burden of proof in criminal cases

In criminal proceedings the prosecution has burden of poof on the elements of his charge.
in normal circumstances the guilt of the defendant is to be proved by the public prosecutor or /and by private complaint as the case may be. The
defendant, hence forth, here, is having burden of producing contrary evidence in defense

 Burden of Production in criminal cases

This refers to burden of producing evidence and burden of proceeding with the evidence on a particular issue at start of a case. As the public
prosecutor has/burden of production of an evidence he/she bears the risk of non-production

 Burden of persuasion in criminal cases

the public prosecutor is duty bound to beer burden of persuasion at least as the elements of the offence charged like wise the defendant is not left with
out being imposed burden of persuasion where a case has already been made against him.

Burden of proof in case of presumptions

The question as to who bears burden of proof contrary to the presumption is determined by the fact that in favor of whom is the presumption
provided. i.e. if the presumption is in favor of the accused and such presumption is rebuttal one the public prosecutor has burden of proof to the
contrary. And if the presumption is in favor of the plaintiff, the defendant has burden of adducing rebuttal defensive evidence. Therefore, the
defendant bears the burden of proof to the contrary and bears the risk of his failure to rebut it

Standard of proof

In order the court be satisfied with the evidence produced and be in a position to render its verdict

The "standard of proof" is the level of proof required in a legal action to discharge the burden of proof, that is to convince the court that a given
proposition is true. The degree of proof required depends on the circumstances of the proposition.

Levels of proof or the balance of probabilities:

 preponderance of evidence - (lowest level of proof, used mainly in civil trials)

 beyond a reasonable doubt - (highest level of proof, used mainly in criminal trials)
In civil cases
Balance of probabilities, also known as the preponderance of the evidence, is the standard required in most civil cases. The standard is met if the
proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is
true

In criminal cases
In criminal cases the guilty of the accused must be proved by the so called standard of ‘beyond resonable doubt’

a reasonable doubt is a doubt based on reason and common sense and typically use phrases such as “fully satisfied” or “entirely convinced” in an
effort to quantify the standard of proof.

high standard of proof in criminal proceeding is that:

1. The existence of presumption of innocence

2. The unbalanced position of the parties in criminal cases unlike that of civil cases

3. The irreversible grave nature of criminal punishment, if once erroneously executed i.e. in order not to punish innocent.