TyroCity: Evidence Law Notes

Significance of Physical evidence

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

1. Identification:
The physical evidence merely used to identify the offender from the physical techniques. Identification has its purpose to determination of the physical or chemical identity of a substance with as near absolute certainty as existing analytical techniques will perform.

2. Comparison:
Another significance of physical evidence is comparison the collected evidence with the same characters object or the things. Analysis is subject to a suspect specimen, and control specimen to the same tests and examinations for the ultimate purpose of determining whether or not they have a common origin.

Judicial Notice

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Certain facts are supposed to be already within the knowledge of court. So such facts need not be proved. They are supposed to be within the notice of the court. Facts which are quite famous or notorious may be subject matter of judicial notice. Similarly facts which are beyond controversy are judicially noticeable such as a week has 7 days, Saturday is the official holiday of Nepal, Falgun 7 is the democracy day .These facts can not be a bone of contention. So they need not be proved. The court perse acts upon them. Section 5 of the Evidence Act 2031 of Nepal deals with judicial notice. The section gains some examples in which the court is supposed to take judicial notice.They may be stated as follows;

The National Anthem
Signature(sign manual) of the Head of State
The geographical condition of the country
The constitution of of Nepal and the laws of the Nepal
Notice Published in Nepal Gazette
Other facts which are beyond controversy the court is regarded as expert of the law of Nepal and the constitution. The facts stated above are one famous and beyond controversy. Notice published in Nepal Gazette is the notification of Nepal Government to public at large. So such fact are taken by the court without pursuing the process of admitting evidence. However, when the court is not certain in any fact, the court may order to the parties to the litigation to produce such materials which assist it to take judicial notice. Such materials are not evidence; they are materials which assist the court to refresh its memory.

Improper Admission and rejections of evidence:

If any court admits any improper evidence or rejects proper evidence in any court proceeding the decision does not fail or stand for the very reason unless it is proved that the rejection or admission of any evidence has crucial effect at the adjudication .[Section 54 of the Evidence Act 2031 of Nepal]

Quality of an Expert Witness

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

An expert is a specialist in the respective field and called as a witness in the court at that capacity. The qualities which possesses by expert witness are different from ordinary witness because generally witness can not give their opinion, but the expert generally make their opinion. Therefore, there are some important qualities of an expert witness as:

1. Expertise

An expert must have expertise or specialization in subject he/she testifies in court.That is main reason of summoning him/her.The question of expertise may be decided upon the basis of an inquiry into academic achievements, professional training, experience in trade, means at the command and the application of those for coming to conclusion.

4. Clarity:

The language used by an expert must be simple, clear and comprehensive even to ordinary people.The subject should be able to present his/her evidence in clear words and if possible , through charts, photography, sketch and phomicrographs and make his/her opinion demonstrative so that same could be appreciated by a lay person.

3. Relevancy:

An expert opinion must be relevant to both , the issue in question as well as to the established and recognized principles and findings of his/her subject. The findings must not be based on assumptions but on relevant data either from own experience or from the published works of accredited authors.

4. Reliability:

The court seeks for expert opinion in the presumption that such opinion will be more authoritative or more reliable due to his/her special knowledge on the subject. Another side of the basis of reliability is non –commitment of the expert to interests of either disputing party. They should not only be reliable but appear to be so, and that he/she should satisfy himself/herself against bias arising out of certain cases.

Principles of Physical Evidence

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Basically physical evidence is based on certain principles. These are follows;

Principle of individuality:
Every object , natural or human made , has an individuality, which is not duplicated in any other object. It is unique. Neither the nature has not duplicate itself nor human can

This principle is contrary to common belief and observation. The individuality has been varied in certain fields. The most extensive work has been carried out in finger print. Millions of fingerprints have been checked but on two fingerprints, even from two fingers of the same person have been ever found to be identical. The law of individuality is fundamental importance of physical evidence in forensic science. Anything and everything involved in a crime, has individuality. Thus the culprit is unique, scene of crime is unique , his/her modus operandi is unique, evidentiary clues left over or picked up by the culprit are unique. And this uniqueness in different person to person, through the physical evidence , the criminal can be arrest by linking the crime with criminal.

2. Principle of Exchange:

Whenever two entities came in contact, there is exchange of traces mutually. This principle says that, when a criminal or his/her instrument of crimes come in contact with the victim or the object surrounding him/her, they leaves traces. Thus, mutual exchange of traces takes place between criminal, the victim and the object involved in rime. The rationality behind this principle is the 3rd motion of Newton. Which states that “in every action, equal and opposite reaction”.[Ibid].According to this principle , when criminal attacks upon the victim by own self or by the help of object , the body or the victims any thing re-act in same motion and at the time the traces is exchanged between each other. The traces of victims go on the criminals and the traces of the offenders remains in the body of the victim. By that traces the offender can be find out easily.

3. Principle of Progressive Change:

Everything changes with the passage of time. Nothing in this world is unchangeable, permanent or invariable. But the rate of change varies with tremendously with different objects. The criminal undergo progressive change. If he/she is not apprehended in time , that becomes unrecognizable. But even in this , some evidences are those types which never changes in their lifetime. Such as fingerprints, bone fractures, or other characteristics of the permanent nature like body fluids, body cell, DNA profile never exchange. So this principle demands that prompt action in all aspect of criminal investigation.

4. Principle of Comparison:

Only the likes can be compare. This principle governs the physical evidence is comparison of the similar things. According to this principle , the evidence found in scene of crime is compared with the similar things before he/she had done. Generally it emphasizes the necessity of providing like sample and specimens for comparison with the question item. Under this principles the evidence found in scene of crime is compared with that’s previously done thing, and from this comparison that document is produced before the court as evidence. In this comparison the hand writing and printed document can compare to convict the criminal.

5. Fact do not lie:

Fact itself remain at any circumstances. Physical evidences are directly connected with the scene of crime and which is itself proving the fact that presence of criminal in that crime. So physical evidences can not lie the fact, and there is no room for error in proving or disproving the fact. The unique mark left by the offender remains only on him/her , so to prove the fact physical evidences are the best evidence.

Burden of proving whether a person is alive

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Section 32 of the evidence Act 2031 lays down that where a person is unknown for 12 years to his/her close relatives , the law presumes that such person is dead .The party claiming that such person is alive must bear burden of proof to that effect. As per the Section 108 of the Evidence Act 1872 of India states that “when a person is not heard of for seven years, he/she is presumed to be dead by law.But if anybody says that he/she is alive , the burden of proof lies on him/her .In the case of N.Jaylaxmi Ammal vs.R. Gopal Pattar, Indian Supreme Court observed that “one not heard for 7 years is presumed to be dead.’

Evidentiary value of Expert Witness

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Normally witnesses are not entitled to give their opinion in any proceedings. They should tell whatever they see or observe but Section 23 of Evidence Act 2031 provides for admission of opinions of different types of Experts in court, and the value to be given on such opinions as follows;

If court has to form an opinion of foreign law, science, art, handwriting or finer impressions, it may take the opinions of experts of such subject as evidence.
If court has form an opinion on handwriting of a person, it may take opinion of a person who has had opportunity to see handwriting and is in a situation to identify handwriting as evidence.
If court has to form an opinion as to relationship between persons, it may take as evidence the opinions of people who have special knowledge of relationship.
If court has to form an opinion as to meaning of certain words placed in certain places , it may take the opinion of person having special knowledge of same as evidence.
Such opinions are however to be admitted as evidence only if an expert comes and testifies in the court.The expert’s opinion is only piece of evidence and cannot be taken as substantive piece of evidence since it is to be judged along with other evidence. In other words, expert’s opinion must be corroborating with the other evidence. As for instance, report of handwriting expert is not admissible in evidence in the absence of formal proof. In the case of Mubark Ali vs.State of Bombay, the Indian Supreme Court laid down that a witness must confine himself to the facts and not to state of his opinion. But according to Section 23(7) of Evidence Act 2031, author of an article or book need not be present in the court in person for the article or book to be admitted as evidence. And also , if the Post Mortem Report does not contradict with other facts collected during the course of investigation or if the opponent does not challenge matter in court, the Expert need not come to the court.

Special procedure relating to examination of witness

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Witnesses are examined in three stages. They are

Examination – in- chief,
Cross- examination and
Re- examination.

Examination-in–chief
At this stage the lawyer are entitled to put such questions which are relevant to the fact in issue. They can not put leading question. Questions, which suggest answers, are regarded as leading questions, whose usual answer would be in yes or no form. However leading question may be asked in the following two situations as

Where the subject matter is beyond controversy and
where the subject matters has already been proved in the court.

Witnesses vary in nature. Some may be talkative; others shy; lawyers must use their skill to bring out facts from the witness, which are relevant and important to their case. The must control talkative witness, while encourage to speak shy – witness.

Cross- examination:
Cross- examination starts after the completion of examination in chief and opponent lawyer has right to cross –examination. At this stage he/she is as liberty to put leading question to the witness. His/her questions may have been designed to test the veracity, credibility and accuracy of the statement deposited by the witness. Exposing his/her bad character may impeach the witness. It is one of the grounds to discredit the witness. Witness may be discredited by showing relationship between him/her and the litigant, by showing his/her interest in between him/her and litigant in the subject matter of case. He/she may be contradicted by presenting statement made by him/her or some other occasion. Cross-examination is double edged weapon which should be wailed with great caution. It is one of the most crucial part of the examination of the witness which may affect the out come of the case. According to Philip Wendel, it is double-edged weapon, if you know to wield, it helps to cut enemy’s neck. Otherwise, it cuts one’s own hand. When a witness is cross-examined, he/she may be asked any question which tends:

to testify his/her veracity (correctness)
to discover, who he/she is and what is his/her position and
to shakes his/her moral character

Re-examination:
After the completion of cross-examination the first presenting party has right to reexamination but he/she can not ask questions on new subject matter. He/she must be limited to the impact of cross-examination. He/she should try to make thinks correct which has been distorted in cross-examination. He/she can not ask leading question in re-examination except in the following situations;

If not objected by the adverse party or
With the permission of the court or
Already sufficiently proved matter (undisputed)

The other adverse party may further re-cross examine the witness.

Criteria to Become a Witness

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Who can be a witness?
Any person , who is able to understand question put to him/her and who is able to give intelligible answer to it, is regarded as a competent witness , if he/she comprise the requirement stated above. A dumb person can relate his/her story through signal or in a written form. This is also regarded as oral evidence.

Who can be the best witness?

Evidence given by a witness, who has good character or high moral standard carries great weight age in any court proceeding. In order to insure the capability of the witness, witness must encounter the following requirement of the law as

He/ she must take oath before giving evidence.
He/ she is subjected to cross-examination by his /her opponent.
He /she is liable to punishment under perjury if, he/she speaks untruthful story in the court.
His/her gesture or mode of presentation is observed by the court. This is very much necessary to see how far he/she is confident in his/her expression and spontaneous in his/her presentation.

But in England every one can be a witness. As per the Criminal procedure (Attendance of witness Act) 1965 states that all same adults not subject to sovereign or diplomatic immunity are competent and compellable to give evidence subject to the exception relating to the accused and his/her spouse.

Child Witness:

A child of tender age may be allowed to testify /give evidence if the Court is satisfied that he/she has capacity to understand the question put to him/her and gives rational answers to those questions. The Indidian Evidence Act 1872 prescribes no age limit as to competence of giving evidence. Even a child of 3 or 4 years old is competent to give evidence provided; he/she is competent to give rational answer to the questions put to him/her. A child witness below the age of 12 years need not administer oath before giving evidence, since he/she is ignorant of the moral significance of the oath. Generally the court entertains the evidence given by the child witness , conducts a test known as ‘Voire Dire Test’ by putting certain questions unconnected with the case like who are you? What is your name? What is your father name? Where do you live? If the child gives rational answer to such questions, the court satisfies that the child is a competent witness and allows putting questions to the child, pertaining to the case. In the case of Krishna Prasad Shimkhada vs. HMG, The Supreme Court of Nepal has observed that generally court can not rely the statement made by the lunatic and child witness.[4]but in the case of Gyan Prasad Rai vs. HMG, the Supreme Court has observed that there is no any situation the child will speak lie, so the statement made by the child shall be admissible. In early days child witnesses were not admissible in England but in the case of R.vs. Brasier court has made decision about the admissibility of child witness.

Value of Child Witness:

A child of tender age does not take oath; neither can he/she be cross-examined, rigorously. If his/her story proves untruthful, he/she can not be penalized under perjury. Therefore, evidence given by child witness is always regarded as week evidence. It must be collaborated by some other evidence in order to rely upon it. Even an accomplish can be a witness but his/her evidence carries less weight age and requires corroboration. The same hold good if an accused present himself/herself as witness.

Dumb Witness:

Evidence given by the dumb witnesses is admissible. A deaf and dumb witness cannot speak and understand the question put him/her. Earlier, it was thought that deaf and dumb person were regarded as idiots and were not competent to give evidence. However, modern science reveals that deaf and dumb person are mush more intelligent than any other normal person, and are competent to give evidence. Thus , a person , by reasons of dumbness or otherwise , is unable to speak may give evidence by means such as by writing or by signs.

According to Section 119 of Evidence Act 1872 of India,” A witness who is unable to speak may give his/her evidence in any other matter in which he/she can make it intelligible , as by writing or by signs; but such writing must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence and it is admissible.”

Number of witnesses:

The Evidence Act 2031 does not declare any particular number of witnesses but general practice is not less than two witnesses in any case. It is not mandatory. If we see the provision of Indian Evidence Act 1872, also does not talk about any particular number of witnesses in any case. How many witnesses are necessary for the proof of a fact is wholly left to the judgment of the court. The Supreme Court of Nepal has in number of cases sustained convictions on the basis of the testimony of a sole witness. Section 134 of the Evidence Act 1872 of India says that it is not the number of witnesses that is important but the quality and credibility of the witnesses that counts.

Meaning and Purpose of Examination and Cross Examination

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Examination means testified to the witness about relevancy to find out witness knowledge, confidence , so no for the subject matter. Interrogative of witness by the opposition party is called cross examination. Cross examination is also said to be ‘ the greatest engine even invented for the discovery of earth.

Cross examination is’ the questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify.

Cross-examination ‘the most effective art of the skilled trial lawyer; the interrogative of a witness for the opposing party by questions formed to test the accuracy and truthfulness of his/her testimony on direct examination and to bring out the truth of matter in issue; an absolute rights in action and proceeding.

According to Taylor, cross-examination is ‘the motives to prevent truth are so much numerous in judicial investigation than in the ordinary affairs of life that the danger of injustice arising from this cause’

Cross-examination of the witness is the process of purity the fact from the witness of the opposite party. It does not protect the rights of the party, must have both the right and opportunity of cross-examination. Cross-examination is one of the greatest weapon of the testing the veracity of a statement made by a person. It is both, sword of attack and a side of defense.

Purpose:

Cross-examination is designed to serve one or more of the following purposes as

To damage or destroy the opponent,
To substantially discredit the witness,
To support one’s own the case

According to Cross and Wilkins, the objective of cross-examination on conducted or on behalf of the opposite party are

to elicit evidence directly relevant to the issued which is favorable to the cross-examiners case and
To discredit the witness.

The very purpose of the cross-examination is to ask the question regarding to what the witness has stated in the examination in –chief are in the case of that witness and particularly when the witness is a party to the proceeding of that party.The entire questions which are asked with a new challenge the evidence-in – chief are permissible .The motives to prevent truth are so much more numerous in judicial investigation than in the ordinary affairs of life and the danger of injustice arising from this cause.

Burden of proving such fact which is condition precedent to some other fact

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Section 31 of the Evidence Act 2031 lays down that ,there are certain facts which are admissible on proof of some other facts. Such as dying declaration is admissible as evidence only one proof that the person making it , is dead. Certain facts are admissible as evidence. Under the Section 12 of the evidence Act 2031 , only if the person making it is dead or can not be found etc. secondary evidence is admissible , if it is public document or the original lost or destroyed. In all these cases the party trying to prove the secondary fact must also prove the first fact as condition precedent.

Burden of Proof : Definition

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

The expression burden of proof means “obligation to proof a fact.” Every party of the case has to establish facts which go in his/her favor or against his/her opponent. In other words, the general rule with regard to burden of proof is:” He/she who asserts must prove.” The reason is “one who drags another into the court must hear the burden of proving the facts which he/she asserts”.

The word ‘proof’ signifies a state of mental certainty as to existence or non-existence of some fact and the phrase’ burden of probabilities which has to be compulsive or overwhelming in the case of a choice in favor of a conviction as to remove all reasonable doubt. Burden of and presumption may become decisive only where evidence from both sides is equally balanced or there is paucity of evidence on either side.

Rebuttal of Presumption:

Section 29 of the Evidence Act 2031 states that there are certain facts, which are presumed by the court in favor of either party to the litigation. Presumption of law are those situations in which the law directs the court to presume certain facts on proof of some other facts. The court is obliged to presume as per the direction of law if such situation does not exist. Such situation are listed at the Section 6 of the Evidence Act 2031.The court acts as per the presumption until it is rebutted by the other party.

Similarly, presumption of facts are those situations in which the court acts on option whether to presume certain fact or not. If it does presume , the other party must bear burden of proof to rebut it. Section 7 of the Evidence Act 2031 has laid down such situations.

Presumption of Ownership:

Section 33 of the Evidence Act 2031 says that any person who is in possession of property is presumed to be owner of that property. The person rebutting it must bear burden of proof to the same effect. Similarly Section 110 of Evidence Act 1872 of India lays down that a person in possession of a property is presumed to be the owner . If anybody denies that the possessor is not owner, the burden of proof lies on him/her.

Statement given by Witness in other case

Evidence Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Any witness, who made any statement on previous occasion before any court and if such statement is relevant in subsequent trial, they may be given in evidence under the Section 17 of Evidence Act 2031.

As per the Section 33 of Evidence Act 1872 of India has made similar provision but it has made additional requirement that in order to be admissible of such statement such witness must be subjected to cross-examination on previous litigation.