Law of Evidence

1
 Introduction
Review of the First Chapter

2
 Introductory Points
 What is evidence?
• Evidence is anything with which the existence and non-existence of
a disputed fact is proved.
 The term ‘evidence’ may refer to the facts that are adduced as relevant and
admissible to prove the disputed fact; or it may refer to the means/methods
of presentation of the relevant facts such as oral testimonies, documents
evidences, experiments, electronic data (audio, video, pictures, texts) etc.
• The law that governs the relevancy, admissibility, production and
related matters in a court or tribunal is referred to as evidence law.
• In common law legal system, evidence law is a more organized
discipline of law because the system involves jurors who are not
legal professionals having no legal and analytical skill of
evaluating evidences evidences presented by opposing parties in a
court litigation; hence they need to be assisted and guided by a
comprehensive code of evidence.
 But as a late development, civil law countries are also adopting a separate
evidence code in order to assist and guide the proof process in adjudication.
3
Cont’d
 Evidence law in civil law and common law legal systems
• The purpose of the comparative analysis is to identify the
strength and weakness of each system and get a lesson.
• The common law trial is characterized by adversarial system in
which the opposing parties play a primary role in examining the
witnesses; and the role of the judge is minimal as opposed to
inquisitorial system. Does this traditional distinction affect the
system of evidence?
 The distinction does not seem to be valid anymore as most systems
practice a blend of the two.
• What are the other differences between the two legal systems in
terms of evidence?
 Oral Vs documentary evidence; which should obtain high evidentiary
value? Do you agree with the difference of emphasis between civil and
common law traditions?

4
Cont’d
• How do see the debatable issue of being a witness to ones
own case and taking testimony from those who are closely
related to parties?
 The general trend is that in common law systems, parties themselves
can be competent witness; whereas in civil law, it is not allowed
 This seems to be highly dependent upon the criminal justice
administration in ensuring the deliberate prejudices and lies
(perjury)during oral testimonies. But how far this ensure the high
possibility of bias of witnesses in favor of their case or their
relatives?
 The Ethiopian perspective is that it can be understood from the
reading of the Civil Procedure, Criminal Procedure and the FDRE
Constitution that parties and their relatives can adduce oral
testimony after giving oath, which follows the general tradition of
common law evidentiary practice.

5
Cont’d
• Hearsay evidence
 Testimony of a witness who has no direct knowledge
of what he tells about (hearsay) is not admissible in
common law legal systems.
 In civil legal systems, the discretion to admit hearsay
evidence is left to the judge
 How hearsay is looked at under the Ethiopian evidence
law?

6
 Ethiopian Evidence Law: A
Preview
 There is no separate code of evidence law in
Ethiopia.
• The evidence law of Ethiopia shares the features of the
civil and common law evidence systems.
 Emphasis to documentary evidence and the admissibility of
hearsay evidence based on the discretion of the judge
characterizes Ethiopian evidence law taking the feature of civil
law.
 What commonalty could you mention between Ethiopian
evidence rules and the common law evidence system?
 Sources of Ethiopian Evidence Law
• Evidence rules are to be found scattered through
substantive and procedural laws of the country.
7
Sources … Cont’d
• Cassation decisions on basic errors of evidence law.
 Even though there is no full-fledged precedent system in
Ethiopia, the cassation review of the Federal Supreme Court
on fundamental interpretational errors of the lower courts is a
binding interpretation; hence decisions related to evidence
matters are another source of law for Ethiopian evidence law.
• Internationally accepted principles and rules of
evidence
 Besides the scattered rules across various laws of the country
under titles such as “proof of marriage”, proof of …” and
many legal presumptions and other evidence related
provisions, internationally accepted principles of evidence
law are also another sources that have been used to fill the
existing gaps of Ethiopian evidence rules.

8
Evidence in Criminal and Civil Cases
 The purpose of evidence law in criminal and civil cases
• Evidence law has the same purpose both in criminal and civil proceeding
which is to guide and assist the court to establish the truth; but the difference
lies in the strict rules in criminal evidence to ensure fair trial to the accused.
• criminal evidence contains many rules excluding relevant evidences such as
bad character or previous conviction.
 The standard of proof
• The standard of persuasion required in civil and criminal cases is different,
owing to the serious consequences of criminal conviction to life and liberty
of the accused; and the obvious imbalance of the parties in criminal
litigation which may unfairly lead to wrong decision.
• Accordingly, the standard of proof for criminal case is ‘beyond reasonable
doubt’
 The underlying assumption is that it is preferable to acquit a criminal than to punish
an innocent.
• The standard of proof for civil cases is preponderance/balance of evidence

9
Cont’d
The Burden of Proof
• The burden of in criminal and civil disputes lies
upon the one who claims.
• In criminal matters, it is the public prosecutor
that has to prove the elements of the crime as
defined in the substantive criminal law.
 This burden of proof has got its basis from the
principle of the presumption of innocence.
• In civil cases, the well known rule that the one
who asserts will bear a burden of proof.

10
 Chapter Two
Facts Which May Be Proved
Other Than By Evidence
 Facts That Need No Proof
As a general rule, every claim of the parties
in the litigation must be supported by
evidence. Exceptionally, however, there are
three types of facts that do not necessarily
need proof; these are:
1. Admitted facts
2. Presumptions & inferences
3. Judicial notice
 Lets discuss each of these exceptions one
by one
12
 1. Admissions
Admission is to concede to the fact
asserted by the opponent.
If a fact alleged by the one is admitted to
be true by the other party, it doesn’t have
to be proved by the claiming party;
because a party is not expected to make
himself liable through admission; he is
expected to know better about himself
than anybody else.

13
Cont’d
 Admission can either be formal or informal
• Formal admissions are those that are made before a
body authorize to receive admission such as courts,
investigating officer, commissioner delegated to
conduct trial proceedings.
• Informal admissions refer to those admissions that are
made in civil dealings and everyday relationships.
 Ex: an admission made to a friend orally, in a letter or email.
• It is obvious that the ones that are given before the
authorized organ have high evidentiary weight
(probative value) than informal admissions.

14
Cont’d
 Again,formal admissions may further be classified
as judicial and extra-judicial (out of court)
admissions.
• Judicial admissions: are those admissions made before a
court entertaining a case or a commissioner delegated for
by a court having a jurisdiction on the case.
 Regarding the conclusiveness of judicial admissions, they are
conclusive for civil cases unless the admission is vague and
doubtful in which case the court may require the other party to
substantiate his claim with evidence.
 Admission in civil cases can be made in pleadings, during hearing.
Or though mutual agreement of the parties.
 Evasive (general) denial of the a claim constitutes admission by
necessary implication.

15
Cont’d
 Judicial admissions in criminal cases
• A s a rule, a plea of guilty before court is conclusive
and the court shall give verdict forthwith.
• But if a court believe that the confession is made for
other reasons such as to cover someone's crimes or
for fame, he may require the prosecutor to continue
producing evidences in accordance with the
elements of the charge.
• The law clearly provides that if the confession is
made with reservation, a plea of not guilty shall be
entered.

16
Cont’d
Extra-judicial admissions
• These are out of court formal admissions made
before an authority.
• In criminal cases, confessions made before a
police officer is not conclusive, and in most
cases it is subject to rejection by criminal
benches, taking the brutality and illegal method
police investigation.

17
END OF CHAPTER ONE
AND TWO

18
 Review of the Last Class
 We have discussed an introductory points about evidence
law
• Evidence & and Evidence law
• Evidence in civil and common law countries and
• Themes of evidence law such as relevancy & admissibility of
evidence
 Facts that need no proof
1. Admission
 Admission is to concede to the fact alleged by an adversary
 Admission can be formal or informal

 A formal admission can further be classified as judicial and extra-

judicial
 Specific judicial admissions in civil cases is conclusive
 Specific judicial admission without reservation in criminal cases is
conclusive as a rule, but the court may reject if it deems that the
confession is made due to other reasons other than guiltiness. 19
 II. Presumptions
 The second type of facts on which the alleging
parties are relieved of the burden of proof are
presumptions.
• There are presumptions that depend upon proof of basic
facts;
• There are also presumptions that do not depend on basic
facts, which are initial allocation of burden of proof.
 Ex: presumption of innocence
• When parties must go half way proving basic facts before
presumption of fact or law operates.
 There are two kinds of presumptions
1. Presumptions of fact (permissive inferences)
2. Presumptions of law (mandatory presumptions)
20
 1. Presumption of Fact
(Permissive Inferences)
 These are inferences the court deduces from facts that are
proved as basic facts which lead to the presumed fact
following the natural course of things (cause and effect
relationships).
 Such kind of presumptions are always rebuttable; the other
adversary can produce a contrary evidence .
• The presumption will have the effect of shifting the burden proof to
the other party.
 Permissive presumptions may be indicated by law or the
court, with out such an indication, may presume facts the
existence of which can be deduced from other basic facts
 It is to be noted that the mere fact that a court has taken a
presumption and it does not mean it always reaches to a
conclusion and final verdict on the basis of the presumed
fact. 21
 2. Presumption of Law
 These are presumptions which the law requires the court to
make as a matter of obligation.
 Why the law obliges the court to take presumptions?
Natural course of things which necessarily result in the fact
meant to be presumed is the strongest of reasons for
presumptions of law.
• In other words, probabilistic/logical relationship between the basic
fact and the presumed fact the main reason for legal presumptions.
 The presumption of the law can be dependent upon the
proof of the basic fact; or it may be made to be presumed
without the need for proof of the premise fact. (Ex: the
presumption of innocence).
• Presumptions without proof of basic fact are predominantly aimed
at achieving the public policy besides its probabilistic aspect.
22
Cont’d
 Presumptions of law are of two types:
• Rebuttable presumption
 Once a certain fact is presumed, either upon the proof of the
basic fact or not, the other party is allowed to produce
evidentiary facts to the contrary of the presumed fact.
 Rebuttable presumptions have the effect of the shifting the
burden of proof the other party.
• Irrebutable presumption
 Irrebutable presumption is conclusive against which a
contrary evidence may not be adduced; hence it does not
shift the burden of production to the other party.
 If basic facts to the irrebuttable presumption are proved, the
case may come to an end, given that the presumption is so
decisive in disposal of the case.
23
 III. Judicial Notice
 Judicial notice refers to circumstances in which the judicial system
assumes a factual proposition to be true even without proof.
 It is a judicial discretion given that if the matter is notorious that it
is known or can by the trial judge, judicial notice has to be taken.
 The purpose, as other facts that do not need proof, is that it saves
the time and resource of the court and prevents unnecessary delay
of justice.
 Judicial notice can be exercised both in respect of laws and facts.
• Judicial notice of law: courts are obliged to take notice of laws that are
made accessible through publication.
• Judicial notice of facts: it is a well founded principle of evidence law that
if a certain fact is part of common knowledge; and it can independently be
verified by the court, a presumption must be taken and proof of the same
shall not be required from the alleging party.
 Further explanation each points is made as follows.
Cont’d
 Judicial Notice of Adjudicative Facts
• ‘adjudicative’ to refer to facts that relevant and decisive for
the disposition of the case.
• A fact which is part of common knowledge or a fact that can
be ascertained from the undisputable sources are subject to
judicial notice.
• Facts of common knowledge
 These are facts that are known by an ordinary intelligent people
without academic background. So the yardstick here is not the
personal knowledge of the judge, rather the generality and
commonality of the fact in question.
 It is sufficient for a certain fact to be known in the locality where the
court has jurisdiction; as the same time, what is commonly known in
other areas may not be a subject of judicial notice to the courts of
other localities; so the degree of notoriety is a decisive factor.
 Ex: custom of the society where the court is situated
25
Cont’d
• Verifiable Facts
 Facts that can be ascertained by referring to authoritative
and indisputable sources, even if they not part of common
knowledge, are verifiable facts on which a judicial notice
can be taken.
 Theses facts are mostly from science, history, art etc… that
are firmly established.
 Note that the mere presence of different ideas does not
make the facts presented unauthoritative; that which is
acceptable by overwhelming majority shall be referred and
be noticed.
 But if there is a doubt on the part of the court as to the
indisputability of the fact, the court shall not take notice
thereof, hence shall require the production of evidence in
support of it.
26
Cont’d
 Judicial Notice of Law
• If one of the parties raise an issue of law which is known by
the court, the other party is not required to adduce a legal
proof; the court takes notice of the relevant law.
• Judicial notice in civil law countries is easy because of the
tradition of legal codification where judges are supposed to
know the legal principles and rules arranged and codified
across various code of laws; whereas in common law system, it
is judge made law where judges are bound to follow the
decisions of higher courts on similar cases; but the problem lies
where there are two different decisions on the same precedent
case in which case the parties have to persuade and prove to
the court which decision shall be chosen as the governing law.
The judges shall also take the interest of the public in
determining and choosing the applicable legislative facts.
27
 Cont’d
 Which laws are subject to judicial notice?
• As per the Federal Negarit Gazeta Establishment Proclamation
No. 3/1005, all federal or state government organs, natural or
juridical persons are bound to take judicial notice of laws of the
country that are published in Federal Negarit Gazeta.
• There is an issue with the obligation imposed by the federal
proclamation on state courts to take notice of federal laws
published in Negarit Gazeta. Do you think this is in line with the
constitutional division power and the principle of non
intervention?
• What if the law which is the integral law of the land is not
published in the official gazette such as international treaties
ratified by Ethiopia, administrative directives and decisions of the
cassation bench of the Federal Supreme Court? It is not necessary
for the litigants to prove issues subject to those laws that are not
published in Negarit Gazette if they are recognized and known by
the entertaining court.; if not, the alleging party has to prove.
Cont’d
 Besides law, courts may also take notice of facts that are
part of the common knowledge; and that can be verified
(verifiable facts).
• Requiring the production of evidence for such facts would be an
error in terms of saving the time and resources of the court and the
parties; resulting in delay of justice.
 But judicial notice of facts is dependent upon the
knowledge of the trial judge; thus even though the matter is
of public knowledge. Hence, judicial notice of facts is
discretionary.
 Is the presumption of fact or law by the judiciary
rebuttable?
• Since presumption is a type of ordinary evidence, unless stated
otherwise by the relevant law, a contrary evidence can be adduced;
thus the trial judge has to consider evidences produced against what
has been recorded as judicial notice of law or fact.
END OF SESSION

30
RELEVANCE AND ADMISSIBILITY
OF EVIDENCES

31
 Fact in Issue
 Before defining relevancy, a fact at issue need to be understood.
 Fact in issue is what is disputed by the parties and to be resolved by
help of evidence; a fact at issue comes into picture when a fact is
alleged by one and denied by another.
 The disputed issue of fact can be physical or mental (psychological).
• Ex: whether an accused has committed the crime with intent? (mental – mens
rea) – the words and other actions of the suspect can inform the state of mind
of the accused – indirect/circumstantial evidence).
• The witness has saw the event with his naked eyes (physical – direct
evidence).
 Major and collateral/subordinate issues of fact
• Facts in issue can be major having a direct bearing to the outcome of the case;
and such issues are identified at the first hearing.
• It can be collateral/subordinate is which is necessary to prove the major issues
of fact.
 Ex: the competence or credibility or expertise of the witness according to the case.
• What are the facts that are universally accepted to be relevant to facts at issue?
This will be the topic of the next session.
32
 Relevancy and Admissibility
 An evidence is said to be relevant when it has a tendency to make
the fact at issue more or less probable (direct or inferential
connection).
• Direct evidences are those facts that are point directly to the issue of fact;
such evidences are those that are represented by five senses of a human.
 There is nor level of proof (probative value) in direct evidences; what is to be
ascertained is their authenticity/ truthfulness.
• Indirect (circumstantial) evidences are those facts that make the existence or
non-existence of the disputed fact more probable; it depends upon the
surrounding circumstances from an inference taken regarding the alleged fact.
 It is rare to obtain direct evidences for most factual issues framed by courts; they are
circumstantial evidences that play the main role in the disposition of case before courts.
 The probative value or the level of tendency making the disputed fact probable in favor
one part differs among various circumstantial evidences.
• Circumstance evidences that are generally identified as relevant to the facts in
issue in the literature of the field are discussed hereafter.
 Admissibility is related to a public policy and morality. An evidence
which is relevant can be made inadmissible for some reasons to be
discussed ahead. 33
 Relevancy of Facts
 Relevancy is a relative to the issue of fact framed by the
court; hence the relativity those facts that are generally
identified to be relevant is not to be disregarded; a fact
which is relevant to a certain issued may not be to the
other, even though both are generally mentioned as
relevant facts.
 Relevant evidence has two components: materiality
(relational aspect) and probative value
• Materiality: there must be a logical relationship between the fact-
evidence and fact in issue.
 Assessment of relevance is governed by the cannons of logic, general
experience and common sense.
• Probative value: the extent or the capacity of what is found to be
a relevant fact to the fact in issue.
34
 Cont’d
 The relevant fact (evidence) offered does not have to be conclusive; if
it has a certain tendency of making the issue probable, it is relevant
though it might not be sufficient.
 Facts that are Relevant facts in issues according to the accepted rules
of evidence and rules of logic include the following:
a) Res Gestae: Facts forming part of the elements of the fact in issue or same
transaction; and those facts that are closely connected with elements the fact
in issue in terms of their continuity and less possibility for them to be
fabricated.
• Facts that have occurred contemporaneously with the fact in issue (main fact),
or immediately before or after the event.
• The parameter used to determine whether a certain fact is part of the fact in
issue or closely related with the main fact is logic or experience; thus their no
definite legal regulation in this regard.
 Ex: if the issue if the suspect has caused a willful injury on the victim, his statement that he will
hurt the victim today, or after the event, his statement that he taught a lesson to the victim.
Since facts constitute the elements of the issue i.e. Whether injury was caused by the suspect,
they are res gestae facts.
 Spontaneous declarations a 3rd person that ‘ oh he is going to kill him, catch him” or don’t let
him flee, the police is coming’ are, thought not part of the main issue, they are closely related to
the main issue and have a strong probative value if testified by any one who has witnesses or35
 Cont’d
b) Facts being the occasion, cause or effect of facts in
issue,
• Occasion/State of things
 Occasions provide an opportunity for the occurrence of the event (fact
in issue). In terms of time, place and other surrounding factors.
• Cause or Effect
 The causal fact to the fact in issue; where there is a logical or
experiential cause-effect connection between a fact and the fact at
issue, or the issue of act as a cause and the evidential fact as an effect.
 Causal and consequential facts are generally relevant to the fact in issue
as an effect or cause, though there might not be a necessary
(conclusive) relationship between the two, they would make the issue
of fact more probable.
 Ex: The fact that there was a fierce fight between the suspect and victim
immediately before the latter's death is relevant to the factual issue of who/what
killed the victim.
 The victim has insulted the suspected before he was found injured immediately
thereafter. 36
 Cont’d
c) Motive and Preparation, Previous or subsequent conduct
• Motive is what precedes intent; thus proof of motive has a probative value
for the proof of intention which is essential in criminal proceedings.
• The motive of an individual can be deduced/inferred from his statements or
actions.
 Ex: if one of the security of the university gets upset and says that it was this
• Preparation/Previous or subsequent conduct
 Previous or subsequent conduct refers to acts that are performed by a party from
which a judge can infer a fact that supports proves the fact in issue.
 Ex: if a suspect runs out of a taxi while some was crying for his mobile, this subsequent
conduct of his can be produced as a relevant fact to the issue of whether the suspect has stolen.
In this case, since the action of the suspect seems to be spontaneous reaction to the cry, it may
also considered as a res gestate fact.
• But it must be noted that proof of motive or preparatory acts may not
necessary indicate to the fact in issue; it is possible that they may indicate
to other possibilities; But their relevancy is not to be denied based on other
determining factors; Regret and leaving the original plan can also be
another intervening possibility; hence the probative values of motive or
preparation as relevant facts shall be assessed together with other
surrounding circumstances in order to avoid wrong inference and
conclusion. 37
Cont’d
 Generally, relevant–circumstantial evidences
can be either of the following three:
• Forward-looking to the fact in issue (prospectant
facts), or
• They may be occur side by side or simultaneously
with the fact in issue (concomitant evidences), such
as alibi, res gestae facts, or
• They may point to disputed fact backwardly,
meaning when a later fact refers to a former fact in
issue as a matter of reason or experience.
(retrospectant evidence).

38
 Relevancy/admissibility of confession
and judicial decision
 Confessions as dealt under the topic of ‘facts that
need no proof’, can be judicial or extra-judicial; the
judicial ones are admissible proofs to resolve the
issues of fact, save the exceptions.
 But, is confession really a matter of relevancy? The
same question can be raised with respect to judicial
decision?
• Relevance, as discusses, is to do with logical connection of a
fact with a fact in issues, governed by sound reasoning and
common experience.
• Confession or judicial decision in itself cannot be relevant to
the factual issues frmed by a court; but they can be
admissible.
39
Cont’d
Judicial decision

40
 Admissibility
 Once a certain fact is found to be relevant, its admissibility need to
be ascertained before it is utilized by a court as evidence to the fact
in issue.
 Relevance has to do with policy justification behind acceptance of
some sort of evidences in the court of law.
 A court may abandon hearing or evaluating relevant evidences for
reasons other than admissibility which include:
• ‘needless presentation of cumulative evidences’ i.e. if a fact presented by
some items of evidence, the same fact has not to be produced repetitively by
another evidences with no addition in the weight of evidence except waste
of time.
 Ex: Ten witnesses testifying to exactly the same fact.
• Consideration of undue delay”: even if the evidence intended to be
presented is relevant, it it is going to delay the case unduly, the court may
proceed to dispose the dispute on the basis of the available evidences; this is
the case particularly when the a party decides to produce evidence in the
middle of the trial. The court will have a discretion to decide in light of the
cost, inconvenience, delay of the case the production entails.
41
Relevant But Inadmissible Facts

42
43
44
45
 Introduction
 Preliminary Issues
• Approaches to evidence law in civil and common
law systems
• Ethiopian perspectives
 Whereabouts
 General rules of evidence
 Special rules of evidence, like procedure
 Rules of evidence from criminal context
 Rules of evidence from civil context
 Classification of evidence
46
Cont’d
Types of evidences as enumerated in the
Draft Evidence Rules
• Statements by accuses persons
• Admission
• Judicial notice
• Presumptions of law
• Observation by the court in it its judicial capacity
• Documentary evidence
 Documentary evidence is specially important for civil
cases

47
Terminologies
Alleged fact
Disputed fact
Issue of fact
To prove & to disprove
Contrary/counter
claim/proposition/allegation
Outcome of the case
Collateral/subordinate/side issues of fact

48
 Relevancy of Evidence
 Depending on the relevance, an evidence may
either be direct or indirect (circumstantial).
• It the evidence at hand proves the existence or otherwise
of the disputed fact directly.
• If the evidence tends to establish the issue through
inference (indirectly).
 It is difficult to meet the criminal standard of proof with
circumstantial evidence, without the corroboration by direct
evidences; but if the cumulative evaluation of the indirect
evidences certainly leads to a conclusion, with no contradiction
or reasonable doubt, it may be taken to have met the ‘beyond
reasonable doubt’ standard; this is because in most cases it is
difficult to find direct evidences to prove the facts at issue.

49
 Notes
 Why silence is taken to mean opposition/denial of the allegation of the prosecutor in criminal
cases?
 Judicial admissions are conclusive for civil cases without the need for production of evidence,
whereas judicial admissions are not conclusive to criminal cases meaning that even if an
admission given, the court may disregard it and require the prosecution to provide evidence.
 If admission is with reservation or part of the accusation
 What is the rationale behind thus rule of criminal evidence?
 The whole caution is not to convict innocent that it is possible that an accuses person may admit
for other reasons (to cover another person, fame)
 Classification of evidence
 Direct evidence: evidence relevant directly to the disputed issue.
 Circumstantial (indirect) evidence:-
 Themes of evidence law
 Relevancy of evidence
 Facts that is relevant to the fact in issue
 About means of adducing evidence
 Real evidence
 Oral evidence (testimonies)
 Facts that need not be proved
 Notorious facts to which judicial notice will be taken, facts that are part of public knowledge
 Admitted facts: - if facts that prove the disputed facts are admitted before an open court testimony
or examination
50
Cont’d
 About admissibility of evidence
 This is a policy perspective, where relevant fact evidence is
examined for its propriety to be adduced t to prove the fact in issue,
despite its relevancy, for some policy justifications.
 Standard and burden of proof
 Standard (degree) of proof for civil cases
 Burden of proof
 Who is obliged to adduce evidence in support of the disputed facts?
 At the appeal level
 The above issues of relevancy and admissibility may form a ground
of appeal
 Evidential errors is of course is reversible. If the error is significant as to
affect the judgment, it has to be reverses, if not it is a harmless
evidentiary error.
 Weight of evidence
 How much they support the issue of fact and how much they are
direct and relevant.
51
 Means Of Producing
Evidence – Oral & Real
Evidence

52
 ORAL EVIDENCE
 Once the relevant and admissible facts (evidences) are identified, the
next step is to produce such facts through various means, the one and the
dominant mechanism testimony of witnesses.
 Since obtaining real evidence for alleged facts is rare in most instances
particularly in criminal cases, oral evidence constitutes the main mode
of presentation of facts as claimed.
• What think about the soundness of the common law tradition where oral evidence
has got more dependability, even more weight than real evidences?
• Are witnsses witnesses of the court or witnesses of parties? If they are courts
witness, it means it is the inquisitorial system practiced by cicil law coutnreis in
which case preparation of witnesses is ot allowed (it is unethical); if witnesses are
for the litigants, it means it is an advesarial system of common law countries
where the court has no role verifying the truth, except to make sure that rules of
procedure and evidence are observed on the proceedings.
 This section deals with general concepts about oral evidence,
competency of witnesses and privileges granted to some group of
persons not to testify as an exception to the general principle of
competency of all persons.
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 Oral Evidence: Definition
 Oral evidence is a solemn declaration or a statement made
under oath to establish the fact under question before the
court.
 A witness is the one who has a first-hand knowledge (what
he has perceived in his senses directly) about the fact in
issue
• Except witness is the one who gives his professional opinion over on
the issues framed by the court, unlike testimony on the basis of
perception in case of ordinary witnesses.
 The fact presented by the witness can be a direct testimony
to the fact in issue, it may be relevant to the fact in issue.
• In other words, the witness may give oral attestation to the fact in
issue itself or another fact which is supposed to be relevant to the
fact in issue.

54
 Competency of Witnesses
 General competency
• As a rule, any person is considered to be capable to testify before
the court unless proven otherwise by the other party.
• General competence represents the ability of a witness to testify to
facts he has perceived in his senses, without forming opinion by
way of inference from the raw facts.
 Special competency
• It refers to the an opinion of a witness on the basis of the facts he
has witnessed. This is a personal analysis, deduction and conclusion
of a witness. Ex: opinion about age or the state of intoxication.
• A witness may give his opinion on matters that every lay man can
make an opinion i.e. layman opinion. This is a kind of opinion that
can be formed by any person. If the opinion or conclusion to be
drawn is very specialized that require an expertise on the part of the
witness, this is an expert opinion that can’t be testified by a layman.
 Grounds of Incompetence
 Remember that competency is a rule (presumed), and incompetence is
an exception; hence the party producing witness may not be required to
prove the capacity of his witnesses; the burden to prove their
incompetence lies on the one who claims their incapacity. To disprove
the presumption, one of the following points must be proved:
• Mental incapacity of the witness owing to age (children), insanity and
intoxication.
• Given the principle that even child or a person with mental defect can testfify so
long as they can perceve what they have observed or heared and relate it to the
court, the oppositng part shall prove that such person cannot correctly comprehd
what they have collected in their senses and communicate it to a third person;
otherwise the mere argument that a wutness is a minor or mentally derange does
not bar the a person from standing as a witness.
• The probative values attached to minors or mentaly infirm witness might not
have to be the same, thetruthfulness and credibility of witnesses in general shall
be examined/impeached throught various mechanisms including proof of prior
conviction and it has tobe crosschecked by other relevant evidneces.
 If the accuses becomes a witness, can he be impeached by way of previous conviction? No.
why?
 Cont’d
 How about physical incapacity, when, for instance a witness is blind?
can it be a justifiable ground for incompetence?
 How about conviction of crime (legal interdiction)?
• It can be used to impeach the witness and discredit his testimony; but it maybe
be a bar from stading as a witness. Why? Stabding as a witness is a support for
the justice system, it is not to the advantage of the witness himself.
 What if the witness has interest in the outcome of the case? If a
witness is a relative of consanguinity or affinity to the parties, or
emotionally attached or a close friend, or a victim in criminal cases,
the parties themselves?
• This is no more a ground of incompetence. Why? What consideration has put
weight in favor of accepting the testimony of close persons to the litigating
persons? Presumption of ethics or pragmatic challenges i.e. absence of
evidence in certain cases except those who are close?
• But the other party can impeach the truthfulness of the testimony mentioning
his interest in the case as one ground; the court had a discretion attach whatever
weight it thinks fit to the testimony; together with other evidences including
demeanor.
57
 Hearsay Evidence
 Hearsay is an information oobtained from the statements of other
persons; hence it doesn’t represent a fcat that has been directly
observed/witnessed/percieved by the witness.
 As a rule hearsay is not admissible, thought relevant, save
exceptions. Why? There is no way that the statement repeated by
the witness before the curt can be verified, i.e. it is an out-of-court
statement prseneted before the court by a witness.
 Note that hearsay canbe determined depending upon to what issue
of fatct it has been offered.
• If ‘what the document says’ or ‘what a person has said’ is framed as a fcat in
issue or a subsidiary factual issue, can it be said that presentation such
statement in the document or verbalized by a person is a hearsay? No.
• If the issue raised is ‘whether someone is killed by someone’ and if such is
found in a document or said by a third person, presentation of such
statements by the witness beofre the court definatelyconstitutes a hearsay.
• So, the bottomline is hearsay is relative to the framed issue; a statement of a
witness can be a direct knoledge or hearsay depending upon the disputed
issue. 58
Cont’d
 The probative values attached to hearsay facts must defintely be lower than
what is presented through direct knowledge; and its evidenciary value
inlight of the criminal standard of proof is very much less, lilight of the
rule that the judge has to be convinced abour the guilt of the accuses
beyond doubt; and hearsay byitself leaves doubt because the stament mihgt
have been fabricated by the one who said it first, or it migfht have been
corrupted in the process of transmission due addtions or sustractions fact or
misapprehensionn of the listner. the more the transmitters of of the fcat,
the higher the posibality to be corrupted, and the hight the doubt it creates
in the mind of the judge.
 This does ot mean that hearsay shall not be presented atlall incriminal
cases; there is no harm if it is presented an one type if evidence; so that it is
possible to corrobotoarte or supplement other evidences of higher
evidentiary weight.
 the argument that it sshould not be admitted in criminal cases is not
sounct, in my opinion; it is just an item of evidence, it does not have the
effect of prejudicing the mind of the judge as in the case of character
evidence.; so what is fear then?
59
Cont’d
 Some hearsay evidences can obtain a higher evidenceiary
weight than other ordinary hearsays. These include?
• Dying declaration:- if a dying person tells about the casue of his
death, and such statement is reported to the court in the issue
regarding the casue of death of the dying person, it is hearsay, but a
higher weight msut be attached to this evidence. Why? The dying
person is not expected to lie while facing death, with no motive for
benefit. But why only about his death? How abouut the death of
some other person or any other fcat which is relevant the issue
framed?
 This doesn’t mean that it is conclusive; still there a possibility that he might
lief for the befit of others; or miscomprehended the event, and the telling
witness might distort it.
 The said hight weight is as compared to other hearsay evidences; and it
doesn’t in any way compare with direct knowledge; efor example with the
testimony of the a witness who was present at the situation that has caused
the death og the person.
60
Cont’d
• What is hearsay about statements about ordinary
course of business or statements against interest
or statements about custom? For what issue are
they be hearsays? If the issue is about what is
affirmed by the statement, ther possibility if
fabrication or msitake is very minimal; so how
can they be hearsays? Even for other issues, if
they are presented through witness, why they are
hearsays?
• We look forward a further explanation of these
points from the group working on hearsay
evidence.
61
END OF SESSION

62
The previllege not to testify
Itis about the grounds based on which a
person is justified not tosatnds a s a
witness, for reasons unrelated to the
outcome of litigation.
This part shall be discusses under facts
relevant, but not admissibile, regardless of
the manner they are presented .. Orally, a
document, electronically etc.

63
How the credibility of witnesses are ensured

• Through examinations and impeachment

 Examination in chief – by the party who called the witness
 Cross-examination (finding two opposing statements of the
witness, or let him say so through various questions
leading discrepancy)
 Re-examination: by the party who called the itness with the
pupose of estabilishing what has been said during chief –
examniantiona and somehow confused during cross-
examination by the opponent. The questions at this shall
not bring new facts, playing an active role in the procees
of reaching at the truth, but restricted to clarification of
what has been told by the witness during chief-
examniation.
• This is more to do with procedure than evidence
64
 Introduction
 Preliminary Issues
• Approaches to evidence law in civil and common
law systems
• Ethiopian perspectives
 Whereabouts
 General rules of evidence
 Special rules of evidence, like procedure
 Rules of evidence from criminal context
 Rules of evidence from civil context
 Classification of evidence
65
Cont’d
Types of evidences as enumerated in the
Draft Evidence Rules
• Statements by accuses persons
• Admission
• Judicial notice
• Presumptions of law
• Observation by the court in it its judicial capacity
• Documentary evidence
 Documentary evidence is specially important for civil
cases

66
Terminologies
Alleged fact
Disputed fact
Issue of fact
To prove & to disprove
Contrary/counter
claim/proposition/allegation
Outcome of the case
Collateral/subordinate/side issues of fact

67
 Relevancy of Evidence
 Depending on the relevance, an evidence may
either be direct or indirect (circumstantial).
• It the evidence at hand proves the existence or otherwise
of the disputed fact directly.
• If the evidence tends to establish the issue through
inference (indirectly).
 It is difficult to meet the criminal standard of proof with
circumstantial evidence, without the corroboration by direct
evidences; but if the cumulative evaluation of the indirect
evidences certainly leads to a conclusion, with no contradiction
or reasonable doubt, it may be taken to have met the ‘beyond
reasonable doubt’ standard; this is because in most cases it is
difficult to find direct evidences to prove the facts at issue.

68
 Notes
 Why silence is taken to mean opposition/denial of the allegation of the prosecutor in criminal
cases?
 Judicial admissions are conclusive for civil cases without the need for production of evidence,
whereas judicial admissions are not conclusive to criminal cases meaning that even if an
admission given, the court may disregard it and require the prosecution to provide evidence.
 If admission is with reservation or part of the accusation
 What is the rationale behind thus rule of criminal evidence?
 The whole caution is not to convict innocent that it is possible that an accuses person may admit
for other reasons (to cover another person, fame)
 Classification of evidence
 Direct evidence: evidence relevant directly to the disputed issue.
 Circumstantial (indirect) evidence:-
 Themes of evidence law
 Relevancy of evidence
 Facts that is relevant to the fact in issue
 About means of adducing evidence
 Real evidence
 Oral evidence (testimonies)
 Facts that need not be proved
 Notorious facts to which judicial notice will be taken, facts that are part of public knowledge
 Admitted facts: - if facts that prove the disputed facts are admitted before an open court testimony
or examination
69
Cont’d
 About admissibility of evidence
 This is a policy perspective, where relevant fact evidence is
examined for its propriety to be adduced t to prove the fact in issue,
despite its relevancy, for some policy justifications.
 Standard and burden of proof
 Standard (degree) of proof for civil cases
 Burden of proof
 Who is obliged to adduce evidence in support of the disputed facts?
 At the appeal level
 The above issues of relevancy and admissibility may form a ground
of appeal
 Evidential errors is of course is reversible. If the error is significant as to
affect the judgment, it has to be reverses, if not it is a harmless
evidentiary error.
 Weight of evidence
 How much they support the issue of fact and how much they are
direct and relevant.
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 Physical and demonstrative evidences
◦ It includes objects, videos, audio and picture files,
reconstructions, maps and drawings, scientific experiments
from a fact alleged can be inferred.
◦ When it is difficult for an average person to deduce fro,
physical objects, an expert witness would be called to
explain what the object demonstrates.
◦ The exact representation of the evidentiary f fact
demonstrative evidences will be evaluated in light of the
corroborating evidences.
 Documentary evidence
◦ Is a written document recording a fact which is relevant to
the fact in issue framed by a court.
Cont’d
◦ For a document to be accepted as valid evidence, it has to be
authenticated. How a document is authenticated:
 Through admission by the parties; that it is the same document that they
have signed, this would be conclusive to authenticate the document.
 Proof of signature and handwriting by presenting persons who witnessed
the execution of the document
 After all, committing a transaction or an agreement, and having some persons as
observers is a wise choice on the part of the engaging parties. This expands the means
of authenticating the document, if it is contested.
 Sometimes, attestation of a document by witnesses is required by the law – attestation
includes witnessing the terms of the agreement reduced into writing and putting
signature a document as a witness.
 Authentication by way of comparison: an admitted or proved handwriting
with or without the help of a lay witness or experts in the field.
 If there are not admitted samples, the court may order the person to write
words/figures except the accuses (why the exception? The right against self-
incrimination).
Cont’d
 Proof of contents of documents
◦ in trying to prove the issue in their favor, the parties
who intend to produce relevant evidence by way of
document has to provide the original document itself
(best evidence rule).
◦ By way of exception, if the original document cannot be
found (lost, destroyed or stolen), secondary evidences
such as copies of the original and oral testimony can be
presented.
◦ These rules does not affect the mandatory provisions of
the law on proof of certain legal relationships by
documents, taking the nature of the transaction into
consideration.