University of Nairobi



UNIVERSITY OF NAIROBI

FACULTY OF LAW

DEPARTMENT OF PUBLIC LAW

COURSE TITLE : EVIDENCE LAW 1

COURSE CODE : GPR 201

PRESENTED TO : Mr. MUTHOMI THIANKOLU

BY : Njagi Selestine Muringi G34/40814/2011

: Taank Boskey Wairimu G34/40406/2011

: Wangui Mary Winnie G34/39576/2011

: Shiramba Dennis Etemere G34/40311/2011

: Kariuki Susan Wangui G34/36241/2010

: Wamukehe Leah Musuya G34/40661/2011

: Nyamolo Edna Awuor G34/41166/2011

: Juma Abraham Wangila G34/40360/2011

: Sankaire Ole Tima G34/38061/2011

ON : 7th December 2012

INTRODUCTION

Evidence given in the court room should be relevant and sufficient. Most important it must be relevant otherwise if not so it is termed as inadmissible. The witnesses who adduce evidence during the trial sessions should be qualified to give evidence as per the rules in evidence law. Parties to the issue to be tried in court should choose their witnesses carefully as they can either incriminate them or render them their freedom as per the testimonies they give. A witness should be composed when giving their testimony as discussed in the essay. Trials being the most efficient way to gather evidence from witnesses is the method that has been used form the ancient times till date however, have their pros and cons as discussed in the essay.

The general rule of evidence is that all evidence that is relevant to an issue before the court is admissible and all irrelevant evidence is inadmissible .Vital information regarding issues before a court should be got from credible facts and witnesses and if not, then the information should be excluded . Admissibility of evidence depends on relevance of a high degree and that evidence tendered should not infringe on any exclusionary rules applicable to it. On relevance and admissibility s.5 of Cap.80 expressly states that “…. no evidence shall be given in any suit or proceeding except evidence of the existence or non-existence of a fact or issue and of any other fact declared by any provision of this act to be relevant.”

In Conway vs. R it was determined that relevance is a logical and not a pragmatic concept. Therefore ,for the purpose of determining relevance each piece of evidence is to be considered independently and a piece of evidence remains relevant however many other pieces of evidence are tendered to prove the same fact. Hence relevance is a concept which proof of one fact renders the existence of another fact probable or not.

In D.P.P. vs. Kilobourne ,it was held that evidence is relevant if it is logically probative /disprobative of some matter that requires proof .It is sufficient to say that relevant evidence is evidence that makes the matter that requires proof more/less probable or not.

In civil proceedings however, merely because evidence is admissible it may not be necessarily admitted since the judge has power to exclude pursuant to his case in his management role. This power should be used with great circumspection.

Innocuous statements made by means of testimony are offered to the court as evidence of the truth which is stated. They are mainly innocent and harmful . However, evidence rules such as those that are concerned with the oath ,competency of witnesses and cross- examination are used to ensure reliability of the testimony. Testimony is viewed as the major item of judicial evidence . A hearsay statement if oral has to be narrated to the court and if in a document it must be produced in a court and identified by a witness .

The demeanour of witnesses is also a vital consideration during trials. The common law regarded the demeanour of a witness as relevant to the witnesses’ credibility .The attitude of a witness and his way of answering questions posed to him, his apparent frankness ,evasiveness or other reaction to questioning and his apparent power or lack of power or recollection are used to guide in the weight to be placed upon the witnesses’ evidence. For instance nervousness and fidgeting of the witness gives away the guilt easily. This eventually leads to the frequent refusal of appeals by courts to reverse decisions made at trials where during the trial the court had the opportunity to see and hear the witnesses case.

Hearsay is therefore sometimes excluded as evidence as the court had no opportunity for observing demeanour of the person making the hearsay statement .Demeanour is rightly treated as an item of real evidence analogous to the appearance of persons and the observable qualities of an object. When we say that vital information and pointers are not just gleaned from dry facts and evidence we mean that evidence adduced in courts should be relevant and void of bias or personal concern.

There are various types of examination of witnesses as seen in s. 145 of the Evidence Act which provides for three types of examination of witnesses namely;

a)Examination in chief- examination of a party by the party who calls him /her

b)Cross-examination- The examination of a witness by the adverse party.

c)Re- examination - An examination of a witness after cross- examination by the party who called him/her

Examination in chief is the first stage of a civil or a criminal trial- It entails the questioning of a witness by the party who has called /brought the witness, the party calling the witness or his/her advocate will seek to elicit evidence which supports his or her version of the facts in issue or relevant to the case .

CROSS EXAMINATION

During trials a witness is questioned under oath and they are required to give evidence attesting to a given event. According to sec .154 of the Evidence Act, a witness may be cross examined to establish.

1)His accuracy ,veracity of credibility,

2)to discover who he/she is and what is his/her position in law,

3)shake his credit by injuring his character although the answer to such questions might tend to directly or indirectly incriminate him or might expose him to a penalty or forfeiture.

Testimony of witnesses may also be deemed as forms of judicial evidence and the courts have a requirement that they be said in court so as to determine their reliability. Evidence before the court will not be accepted as being admissible if it has not been sworn. In Maisham ,ex parte Pethick Lawrence [1912} KB 362, where the magistrate’ s court by error conducted a case on the basis of unsworn evidence and thereafter reheard the case in the proper manner on the same day , an appeal was brought on the ground that the accused had stood in jeopardy twice because of the procedure taken by the appeal and the appeal failed because the first hearing was based on unsworn evidence and thus had been nullity of accused had not stood in jeopardy . In addition ,lying under oath forms part of idiosyncratic tactics that humans form under pressure .A witness who lies under oath is considered to be guilty and the same also goes for one who remains silent absolutely. In cases of lying about previous mentioned that the latter is a lie and that lying about previous facts can form part of conscience of guilt and this leads to the guilt of the witness .Through this, we see that trials do not give room for evidence that is false and therefore credible evidence is brought forth.

Under section 163(1)(c) of the evidence act , the character of a witness might be impeached on the grounds of contradictory statements he made that might be inconsistent with part of his evidence .In case of appearances of witness ,the court will be more likely to accept evidence from a forth right and un perpetuated witness by cross examinations ,the court will no doubt be more disposed to believe him that it will a halting and previcating witness although this has been disputed in the case of as to whether the demeanor is important during cross examination by the examination in chief or re- examination by the Attorney General of the sovereign state of Akiton and Dhekelia VS Stein hoff. As far as the facts in issue are concerned the type of demeanor is analogous to the answers given by a witness who is being cross-examined as to credit and may lightly regarded as evidence in the case o. In Coomb vs. Bessel (1994) 4 7AS 149

An appeal was allowed because the trial judge regarded as satisfactory demeanor in testifying transpired to be the result of a medical condition. The personality of a witness may also determine this suitability as a witness as it may help the court attach some weight to the assessment of himself.

The general rule of direct evidence is that evidence offered on direct examination must be relevant ,authentic and not hearsay .It should .be admissible.

ROLE OF DIRECT EXAMINATION

1) Introduce undisputed facts – Undisputed facts cannot be considered by the judge or jury and will not be part of the record on appeal until they have been evidenced through a witness ‘ testimony.

2) Enhance the likelihood of disputed facts- Normally ,the most important facts in a trial are those in dispute hence through direct examination a point gets the opportunity to present its version of the disputed facts.

3) Lay down foundations for introduction of exhibits- Various forms of real evidence are always central to a case. Therefore are necessary to lay the foundation s for the admission of such an exhibit through direct testimony of a witness.

4) Reflect upon the credibility of witnesses- Credibility of a witness is always a vital issue in a trial. Due to this ,most direct examinations begin with the background information about the witness so as to help harmonize the witness and add weight in their submissions .A witness may also be summoned to shed light on the credibility of the testimony of another witness.

5) Hold the attention of the trier fact- It holds the attention of the judge or the jury.

Leading questions in a trial session are defined in section 149 of the evidence act as ;

• Those so framed as to suggest the answer sought.

• Those framed as to assume the existence of facts yet to be established.

Evidence elicited by leading questions is admissible but the weight which can be attached to it may be reduced accordingly. This was illustrated in the case of Moor vs. Moor where a wife petitioner in an undefended divorce petition was asked a series of leading questions in chief that predictably attracted a ‘Yes’ or ‘No’ answer. Some of the questions she was asked were: 1)Did you suspect your husband was having an affair with someone else?

2)As a result of those suspicions ,did you leave your house in October 1936?

The trial judge declined to exercise his discretion in the wife’s favor on the ground that she had equally been guilty of adultery and had started the chain of events that led to the breakdown of the marriage and dismissed the divorce petition .

Leading questions may however be asked in the following circumstances ;

a) On formal and introductory matters such as the name and address as opposed to facts in issue.

b) On facts that are not in dispute.

c) Where the party calling the witness has obtained the leave of the court to treat the witness as hostile.

Traditionally the Common Law attached much weight to ansrs given by witnesses in court on oath or affirmations to written statements previously made by them .

Witnesses having difficulties in recollecting events to which their evidence relates can refresh their memory by reference to a document.

CONDITIONS

➢ The document must have been made or verified by the witness contemporaneously with the events in question.

➢ The document must be produced for inspection of the court or the opposing party.

The document must be an original (otherwise the leave of the court will be necessary).

➢ A witness may refresh his /her memory by referring to any writing made by any other person and read by the witness at the time of the transaction.

EFFICIENCY OF TRIALS

.Trials are essential because they not only allow for documentary evidence but also real evidence is presented during trial which would not be the case if did not have trials. Real evidence is evidence from which the tribunal of fact can draw conclusions from its own perceptions. It may consist of material objects; the appearance of persons or animals ;the demeanour of witnesses ;views of the locus quo ;and video or audio tapes ,film and photograph.

When it comes to material objects the court may look at and draw proper conclusions from visual observation of any object brought before it. The reason why trials use advantages too is because the best of evidence rule does not apply so any object brought will be observed regardless of whether it is the subject matter of the case , it may be ancillary to the issue but nevertheless relevant to it . In Line Vs Taylor3, this was an action against the defendant, for keeping a vicious dog. The trial judge permitted the dog to be brought into court so that the jury could asses the temper for themselves, based on their own experience of dogs and their observation of this particular animal. There is no objection to secondary evidence brought before the court such as photographs or films of the object and through this we see that in trials room is given for presentation of each and every evidence that is relevant to the case no matter the level of relevance.

During trials the physical appearance of a person may have probative value in different ways in identification cases, height, build and the skin tone of a person may be very important. The accent of a person or even the pitch of their voice is also evidence in identification. A good example of this is stated by Hale where he says that a physical deformity that would almost inevitably lead to the conclusion that a person is not guilty of rape. Also physical resemblance between a child and an alleged father might be evidence of parentage. Injuries may also be permitted by a court to be exhibited so as to establish the nature and extent.

Another important aspect of trials is that they allow for tapes ,photographs and films to be presented as evidence for observation . Although in modern law they may be regarded as documents at least for some purposes they have a further important potential to supply matter of evidential value because of the possibility of direct perception. A type of film may yield and nuances over and above the mere text of the matter recorded in them.

Trials one of the principles of fair hearing provided for in the 2010 Constitution Article 50” Every person has the right to have any dispute that can be resolved buy the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”The constitution in Article 50 (2) expressly states the right of every individual to have a fair trial. These principles may be seen as an application of natural justice of due process to the criminal justice system and are a defining feature of a free and democratic society. So important is the right to fair trial that is one of the fair* non-derrogable rights which cannot be limited or alienated under any circumstances.

DISADVANTAGES OF SOCIAL CONTINGANCY OF FACTS OF TRIALS

Normally a court inquiring into past facts will not have experienced the facts itself, but the inferences may reconstruct the facts. The inferences may be founded on estimated reliability of reports of persons with direct experience of the facts in issue during oral testimony or on circumstantial evidence.

Facts of a case are actively constructed or reconstructed by parties in legal proceedings before the court. The fact that facts do not have an independent statistic quality , that can be discovered by an impartial inquirer. According to McConville, Sanders and Long,

'' at each point of criminal justice process 'what happened' is the subject of interpretation, addition, subtraction, selection and reformulation. This process is a continuous process...that involves not simply the selection and interpretation of evidence but its creation.''

Interrogation of a suspect is not only used to unlock factual information that the suspect has but also in creative way to bring about facts in existence in the form of admission produced and structured by the form and manner of questioning. Obtaining evidence of mens rea is common. For instance, a suspect may be led to admit that he was conscious when taking a risk therefore he was reckless, when in real sense it might not be so.

A further important negative feature of interrogation is how it may be used to the suppression of marginalized warrant able information from the suspect. This also takes place in trials where lawyers, when questioning witnesses tend to ask the witnesses open questions that permit the witnesses to make a free report of what they know, failing to give the witness an opportunity to say something positively that might damage their case. Lawyers also phrase questions so as to require short definite answers that fit the version of the facts being put forward.

Witnesses will be discouraged from volunteering additional material and therefore in this way a filtered and possibly misleading account of facts may be presented to the court. This factors discredit the whole purpose of trial and to some extent render them ineffective.

Generally trials have been and still are the most efficient way to achieve justice in the courts since they provide the best mechanisms to inquire facts and testimonies given by the witnesses under oath.

REFERENCES

Collin and Tapper, MA . Cross and Tapper on Evidence,12th Edition, Oxford University Press.

Murphy and Glover. Murphy on Evidence ,12th Edition, Oxford University Press.

Sir M. Hale. Pleas of the Crown, Vol .1

The Evidence Act Cap. 80

The Constitution of Kenya 2010

The Law of Evidence, 3rd Edition, Sweet and Maxwell ,2007

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download