Codification of the Law of Evidence in Common Law Jurisdictions

1956 ◽  
Vol 5 (3) ◽  
pp. 347-363
Author(s):  
G. D. Nokes
Keyword(s):  
Common Law ◽  
The Law ◽  
Law Of Evidence

Rhetoric and Law

2015 ◽  
pp. 396-408
Author(s):  
Lorna Hutson
Keyword(s):  
Sixteenth Century ◽  
Common Law ◽  
Criminal Procedure ◽  
Legal Development ◽  
Major Development ◽  
The Law ◽  
Civil Cases ◽  
Reasons For Decisions ◽  
Law Of Evidence

This chapter reexamines the older scholarly consensus that humanist rhetoric had no great effect on legal development in sixteenth-century England. It argues that the humanist emphasis on topical invention led to a blurring of distinctions between rhetoric and dialectic, and that key to both were artificial proofs derived from “circumstances,” “accidents,” and “predicaments.” It shows first how circumstances, employed in criminal procedure, helped develop the law of evidence and then goes on to show how this terminology was used to shape the “reasons” for decisions in highly significant civil cases such as Calvin’s Case (1608). If a major development of English common law in this period is its new emphasis on the reasoned decisions of courts as a source of law, this article proposes that it was topical invention that shaped the “reasons” and, hence, the law.

Reforming the Law of Evidence in Nigeria

2000 ◽  
Vol 44 (1) ◽  
pp. 128-129
Keyword(s):  
Common Law ◽  
Law Reform ◽  
Technological Advances ◽  
The Common ◽  
The Law ◽  
Law Of Evidence

The Nigerian Law Reform Commission has recently published a Report on the Reform of the Evidence Act. This was in response to a government directive to “review and reform our Evidence Act to ensure that its application more effectively facilitates the dispensation of justice in our courts”. The Report notes that the Evidence Ordinance was based on Stephen's Digest of the Law of Evidence and on the common law of England as it was in 1943. Understandably, the Report recognizes that the law of evidence had become outdated, especially in view of technological advances. As it notes:

The Role of Rules in the Law of Evidence

2021 ◽  
pp. 69-82
Author(s):  
Frederick Schauer
Keyword(s):  
Common Law ◽  
Legal Systems ◽  
Legal Rules ◽  
European Approach ◽  
The Subject ◽  
The Law ◽  
Law Of Evidence

This chapter starts out with Bentham’s antinomian thesis that rejected the very idea of setting up rules for selecting and evaluating evidence. Bentham believed that factfinding should be governed by epistemically good reasons as a process unconstrained by artificial legal rules. The author observes that most legal systems took up this approach by softening the hard edges of rules (as in common law jurisdictions) and by following the basically free-proof model of factfinding (as in countries that adopted the continental European approach). Yet, he claims that the law of evidence still remains substantially an affair of rules. Why this is the case and whether it should be the case, is the subject of this chapter.

Previous Consistent Statements

1968 ◽  
Vol 26 (1) ◽  
pp. 64-101
Author(s):  
R. N. Gooderson
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
The United States ◽  
Criminal Proceedings ◽  
Civil Proceedings ◽  
Or Practice ◽  
The Law ◽  
Law Of Evidence ◽  
Short Time ◽  
Near Future

No expert long range forecast is needed to predict that in the near future a wind of change of a velocity and a turbulence hitherto unknown is going to sweep away many common law principles of the law of evidence regarded in the past as fundamental. In civil proceedings, the hurricane is upon us, with the thirteenth report of the Law Reform Committee, and the Civil Evidence Bill 1967, virtually providing for the abolition of the rule against first-hand hearsay and the rule against narrative, and substituting a wide discretion in the court. All the signs are that in a short time analogous reforms for criminal proceedings will be announced, and already previous statements have been rendered widely admissible by the Criminal Justice Act 1967. The object of this article is to look at the common law relating to the rule against narrative in criminal proceedings, as it is applied in England and in the United States, and to make a few comments on the procedure introduced by section 9 of the Criminal Justice Act 1967.The rule against narrative is sometimes called the rule against self-corroboration. This is misleading, in that a witness can never corroborate himself where corroboration is required by any rule of law or practice. In the thirteenth report, the first description is said to be a misnomer, but a helpful summary of the rule is given: “what the witness himself said outside the witness-box is not evidence.” Wills describes the rule in this way: “… the witness may not repeat to the Court his own previous narratives or statements concerning the relevant facts made to other persons out of Court; when he is in the witness-box he must take his mind back, directly so to speak, to the facts he is called to prove, and must give to the Court his present recollection of those facts.”

Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

1990 ◽  
Vol 49 (1) ◽  
pp. 80-90 ◽  
Author(s):  
C.J.W. Allen
Keyword(s):  
Common Law ◽  
The Other ◽  
Rule Of Thumb ◽  
The Common ◽  
Political Compromise ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal ◽  
The Way

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

III. Burdens and proof

2018 ◽  
pp. 122-175
Author(s):  
Roderick Munday
Keyword(s):  
Common Law ◽  
Burden Of Proof ◽  
The Law ◽  
Law Of Evidence ◽  
The Way

This chapter considers the burdens borne by both parties when an issue of fact is at stake. It explains how the nature of a burden in the law of evidence is obscured by the use of the term in a number of different senses. The two principal senses are the burden of adducing evidence and the burden of proving facts. In relation to each, questions arise as to its incidence and discharge. The chapter considers the allocation of the burden in these two senses, at common law and under statutory provisions, and the effects of presumptions of law or agreement of the parties. Finally, this chapter is concerned with the extent of the two burdens, and the way in which the burden of proof has to be explained to the jury.

scholarly journals EXTRA-CURIAL STATEMENTS BY A NON- TESTIFYING CO-ACCUSED, THE CANADIAN SUPREME COURT AND CHANGE IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
BC Naudé
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Common Law ◽  
Constitutional Court ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal

In S v Ndhlovu (2002 (2) SACR 325 (SCA)), the court opened the door to the admissibility of extra-curial statements made by a non-testifying accused against a co-accused as hearsay in terms of section 3 of the Law of Evidence Amendment Act (45 of 1988), if the interests of justice so require. However, first the Supreme Court of Appeal and later the Constitutional Court rejected such an approach.It is beyond the scope of this comment to repeat the arguments in favour of a discretionary approach for such statements, but it is submitted that there is scope for disagreement with the findings of both courts.Whitear points out that the provisions dealing with the admissibility of hearsay in the Law of Evidence Amendment Act (45 of 1988) were not declared unconstitutional by any court. The Supreme Court of Appeal found that section 3 of the Law of Evidence Amendment Act (45 of 1988) could not be used to admit the extra-curial statement of an accused against his co- accused because the interests of justice would never allow this. The Constitutional Court found that section 3 did not override the common-law rule prohibiting the admission of extra-curial statements against a co- accused since this would amount to unfair discrimination against an accused implicated by such admissions or confessions. Significantly, because it is stated in section 3 of the Law of Evidence Amendment Act (45 of 1988) that section 3 is subject to the “provisions of any other law”, the court decided that the common-law prohibition should prevail.Previously, however, the Supreme Court of Appeal has held that the “other laws” referred to in the Law of Evidence Amendment Act (45 of 1988) are alternative ways for admitting hearsay, and do not preclude the admissibility of hearsay in terms of section 3, even where there is another law that prohibits it. The court also referred with approval to S v Ndhlovu (supra) where it was explained that the very purpose of section 3 of the Law of Evidence Amendment Act (45 of 1988) was to “supersede the excessive rigidity and inflexibility – and occasional absurdity – of the common law position” by allowing for the admission of hearsay when the interests of justice so require. The admissibility of out-of-court statements by an accused against a co- accused is also dealt with differently in the United Kingdom (our relevant common law) today. Section 114(1)(d) of the Criminal Justice Act of 2003 makes it possible to admit the out-of-court statement of an accused against a co-accused as hearsay. However, the court in R v Y (supra par 57−62) did mention that this does not mean such statements should routinely be admitted without a consideration of the relevant factors mentioned in the Criminal Justice Act of 2003 and that, in the majority of cases, it will not be in the interests of justice to admit such statements, especially those made during police interviews.Even though, under South African law, it is not currently possible to present evidence of an extra-curial statement made by an accused that also implicates a co-accused, the recent judgment by the Canadian Supreme Court in R v Bradshaw (2017 SCC 35) provides insight into how this could possibly happen in future. It is thus useful to consider the Supreme Court’s decision.

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