SECTION 1: INTRODUCTION TO THE LAW OF EVIDENCE.
Law of
Evidence
General
Principles
Admissibility Witnesses
- Relevant Evidence - Competence and
- History compellability
- Basic Concepts - Hearsay
- Calling of Witnesses
- Sources - Detrimental Statements
- Refreshing the memory
- Evaluation and Weight - Kinds of Evidence
- Impeaching witnesses
- Proof without Evidence
1.1 Introduction to the history and theory of the law of evidence.
1.1.1 Definition and significance of the LOE
Law of Evidence is the area of law that regulates the proof of facts, and is a
branch of the law of procedure.
o The law of evidence forms part of the law of procedure, which forms part
of the branch of law referred to as ‘adjectival law’
It is significant because:
o LOE forms part of procedural law, which is the machine that transforms the
rules of substantive law into orders and enforcements.
o Remember that we distinguish between substantive and procedural law:
Substantive law – determines the rights and duties of the parties
Our source for substantive law is generally Roman Dutch law
Procedural law – determines the processes and procedures to
enforce the rights and duties of the parties
, Also known as adjectival law
Our source for procedural law is English law
Functions of the law of evidence:
o Main function of the law of evidence: to determine which facts are legally
receivable/admissible to prove the facts in issue.
o The law of evidence determines:
Admissibility of facts to prove the facts in issue
Manner of presentation of evidence
What evidence should not be considered
Factors influencing the probative value of evidence – whether a
piece of evidence makes a relevant disputed point (more or less)
true
Determines what evidence may be lawfully withheld from the court
Rules for assessing the weight or cogency of the evidence
What standard of proof (i.e. beyond reasonable doubt or on a
balance of probabilities) should be satisfied before a party bearing
the burden of proof can be successful.1
Where the law of evidence fits
o A branch of procedural law (adjectival law)
Source - English law
But there are rights and duties created by procedural law.
Linked to criminal law and civil procedure
1.1.2 History of the LOE
The
religious / The formal The rational Systems of
primitive stage stage law
stage
The history and development of the LOE is divided into 3 categories:
o 1. The religious/primitive stage:
It was thought that a person should not judge another person.
1
The burden of proof is also a rule of adjectival law, even though it was incorrectly classified as a
substantive law rule in Tregea.
, A trial by ordeal (popular in England) was considered a reliable
truth-finding mechanism.
It was an appeal to God to decide the dispute.
Ordeal of the accursed morsel: entailed that an accused person
would be required to swallow a dry piece of bread with the idea that
if he/she was guilty he/she would choke on the bread. There is
some evidence to show that there was good reason to use this
method – if a person that might result in them feeling nervous,
which would result in dryness of mouth, which may lead to choking.
o 2. The formal stage:
The oath was the primary mode of truth. This stage came because
of an increase in human reason, which began to replace God as the
decider of guilt or innocence.
In England, the oath helpers were people prepared to state
under oath that the oath of one party should be believed
over another. The party who was able to summon the
largest number of oath helpers would win the case.
The oath has subsequently been thought to hold a strong hold on a
person’s conscious and we still retain this in the oath that witnesses
take.
o 3. The rational stage & development of the jury
The jury has significantly shaped our rules.
During this stage, oath helpers became more significant, and
they were no longer called upon to express mere belief in the
veracity of a party’s oath – they were expected to also sit as
adjudicators (mostly because of their knowledge of events).
Society grew, the matters that came before the court became more
complex, became more difficult for parties to keep track of matters
discussed in court.
Idea of witnesses was introduced.
There was then a distinction between jurors and
witnesses: jurors set aside their character as people who
had knowledge of the events and personal knowledge of the
, event actually became a disqualifying factor (idea of
impartiality was introduced into the system). Witnesses
became the only parties called upon for their knowledge of
the events.
Jurors v witnesses
o Witnesses testified
o Jurors determined facts on the basis of testimony
Jurors v judges
o Jurors determined the facts; judges determined
the law.
The fact that there was a jury still present in the
system meant that judges had to guard against
the danger of having laypersons decide even
the facts of the matter. Judges then introduced
rules to protect from jurors being distracted,
misled, placing undue weight on facts or
rules that were notoriously untrustworthy
o Why did judges consider the admissibility of evidence
as a matter of law?
Since our system was designed around juries
and we abolished trial by jury in 1927 and 1969
respectively, should we still have a system of
evidence that was designed for jury trials when
we no longer have a jury in SA? We have very
strict exclusionary rules even though most of
our matters are decided by judges with
extensive knowledge of the law
Abolishing the jury system
o Trial by jury was abolished in SA in 1927 and again
(finally) in 1969, but we have retained an evidentiary
system designed for jury trials.
Jurors and Assessors
Law of
Evidence
General
Principles
Admissibility Witnesses
- Relevant Evidence - Competence and
- History compellability
- Basic Concepts - Hearsay
- Calling of Witnesses
- Sources - Detrimental Statements
- Refreshing the memory
- Evaluation and Weight - Kinds of Evidence
- Impeaching witnesses
- Proof without Evidence
1.1 Introduction to the history and theory of the law of evidence.
1.1.1 Definition and significance of the LOE
Law of Evidence is the area of law that regulates the proof of facts, and is a
branch of the law of procedure.
o The law of evidence forms part of the law of procedure, which forms part
of the branch of law referred to as ‘adjectival law’
It is significant because:
o LOE forms part of procedural law, which is the machine that transforms the
rules of substantive law into orders and enforcements.
o Remember that we distinguish between substantive and procedural law:
Substantive law – determines the rights and duties of the parties
Our source for substantive law is generally Roman Dutch law
Procedural law – determines the processes and procedures to
enforce the rights and duties of the parties
, Also known as adjectival law
Our source for procedural law is English law
Functions of the law of evidence:
o Main function of the law of evidence: to determine which facts are legally
receivable/admissible to prove the facts in issue.
o The law of evidence determines:
Admissibility of facts to prove the facts in issue
Manner of presentation of evidence
What evidence should not be considered
Factors influencing the probative value of evidence – whether a
piece of evidence makes a relevant disputed point (more or less)
true
Determines what evidence may be lawfully withheld from the court
Rules for assessing the weight or cogency of the evidence
What standard of proof (i.e. beyond reasonable doubt or on a
balance of probabilities) should be satisfied before a party bearing
the burden of proof can be successful.1
Where the law of evidence fits
o A branch of procedural law (adjectival law)
Source - English law
But there are rights and duties created by procedural law.
Linked to criminal law and civil procedure
1.1.2 History of the LOE
The
religious / The formal The rational Systems of
primitive stage stage law
stage
The history and development of the LOE is divided into 3 categories:
o 1. The religious/primitive stage:
It was thought that a person should not judge another person.
1
The burden of proof is also a rule of adjectival law, even though it was incorrectly classified as a
substantive law rule in Tregea.
, A trial by ordeal (popular in England) was considered a reliable
truth-finding mechanism.
It was an appeal to God to decide the dispute.
Ordeal of the accursed morsel: entailed that an accused person
would be required to swallow a dry piece of bread with the idea that
if he/she was guilty he/she would choke on the bread. There is
some evidence to show that there was good reason to use this
method – if a person that might result in them feeling nervous,
which would result in dryness of mouth, which may lead to choking.
o 2. The formal stage:
The oath was the primary mode of truth. This stage came because
of an increase in human reason, which began to replace God as the
decider of guilt or innocence.
In England, the oath helpers were people prepared to state
under oath that the oath of one party should be believed
over another. The party who was able to summon the
largest number of oath helpers would win the case.
The oath has subsequently been thought to hold a strong hold on a
person’s conscious and we still retain this in the oath that witnesses
take.
o 3. The rational stage & development of the jury
The jury has significantly shaped our rules.
During this stage, oath helpers became more significant, and
they were no longer called upon to express mere belief in the
veracity of a party’s oath – they were expected to also sit as
adjudicators (mostly because of their knowledge of events).
Society grew, the matters that came before the court became more
complex, became more difficult for parties to keep track of matters
discussed in court.
Idea of witnesses was introduced.
There was then a distinction between jurors and
witnesses: jurors set aside their character as people who
had knowledge of the events and personal knowledge of the
, event actually became a disqualifying factor (idea of
impartiality was introduced into the system). Witnesses
became the only parties called upon for their knowledge of
the events.
Jurors v witnesses
o Witnesses testified
o Jurors determined facts on the basis of testimony
Jurors v judges
o Jurors determined the facts; judges determined
the law.
The fact that there was a jury still present in the
system meant that judges had to guard against
the danger of having laypersons decide even
the facts of the matter. Judges then introduced
rules to protect from jurors being distracted,
misled, placing undue weight on facts or
rules that were notoriously untrustworthy
o Why did judges consider the admissibility of evidence
as a matter of law?
Since our system was designed around juries
and we abolished trial by jury in 1927 and 1969
respectively, should we still have a system of
evidence that was designed for jury trials when
we no longer have a jury in SA? We have very
strict exclusionary rules even though most of
our matters are decided by judges with
extensive knowledge of the law
Abolishing the jury system
o Trial by jury was abolished in SA in 1927 and again
(finally) in 1969, but we have retained an evidentiary
system designed for jury trials.
Jurors and Assessors
