LEV 3701 admissibility-evidence-notes-final VERIFIED.

ADMISSIBILITY OF EVIDENCE NOTES: DIFFERENT TYPES OF EVIDENCE: ADMISSIONS: this is a statement made by a person, which is NOT in his favor where such person admits some of the elements of the offence = such an admission may be formal or informal. If this statement isn’t made voluntarily it can’t be used against the A CONFESSIONS: this is a statement adverse to the person who makes it in which he admits all the facts in issue – i.e. all the elements of the offence = such a statement must satisfy a number of requirements before it can be admissible in court = the most important being that it must have been made voluntarily. PRIVILEGE: such evidence is of such a high value that it must be excluded – this is done in instances of: Attorney client relationship Witness can’t be forced to incriminate himself on the stand. Certain information held by the state should be excluded in the interests of society = police docket privilege SIMILAR FACT EVIDENCE: This is evidence, which is similar to the facts in issue. The facts in issue are those issue which exists between the state and the A = the offence, time, place etc The mere fact that a person has previously done something wrong does not mean that she has done the same thing again = the evidence is therefore generally inadmissible CHARACTER EVIDENCE: this deals with a persons general reputation and doesn’t generally have a bearing on the facts in issue = generally inadmissible Look at the good and bad character of the A: just because a person has a bad reputation doesn’t in itself prove of disprove the offence (previous conviction are inadmissible) PREVIOUS CONSISTANT STATEMENT: This is a statement made on a previous occasion that is used to corroborate (strengthen) evidence presented in court. This evidence doesn’t prove the offence and therefore is generally inadmissible Downloaded by Wilfred Ngobeni () lOMoARcPSD| CLS cc Evidence Admissibility Notes Critical Law Studies cc © 2 HEARSAY EVIDENCE: The limitation on this type of evidence requires that a witness have 1st hand experience over the things on which he is testifying and therefore not just repeating what he has heard. This is due to the fact that the court a quo looks at the credibility of a witness when assessing the witnesses evidence = in the case of hearsay evidence you are relying on evidence of a NON WITNESS (i.e. the witness is just repeating what was heard and the court should be looking at the character of the person from whom the statement originated OPINION EVIDENCE: Generally it’s the courts function to draw its own conclusions based on admissible evidence presented in court – but there are instances where the opinion of a lay person or expert may assist the court in coming to a decision VIOLATION OF THE BILL OF RIGHTS: If evidence is obtained din a way that violates a persons fundamental rights may often be excluded looking at the interests Downloaded by Wilfred Ngobeni () lOMoARcPSD| CLS cc Evidence Admissibility Notes Critical Law Studies cc © 3 GENERAL PRINCIPLES IN EVIDENCE Evidence is a part of adjective law (HOW) – the procedure to be followed in the court and legal transactions Law of evidence = proof of facts by means of evidential material Evidential material is made up of: • Evidence • Formal admissions • Judicial notice • Presumptions Definitions: The law of evidence: that field of law that regulates the proof of facts generally in a court of law Proof: proof of a fact means that the court has received probative material (evidential material) with regard to such fact and has accepted such fact as being the truth for the purposes of the specific case. Evidence of a fact is not yet proof of such fact: the court must still decide whether or not such fact has been proved. Evidence: consists of oral statements made in court under oath, affirmation or warning (oral evidence), it also includes documentary evidence and objects (real evidence) produced and received in court. Sources of the law of evidence Historical sources: The substantive law of SA is drawn from the principles of RomanDutch law. The adjective law of SA is drawn from the principles of English law. Knowledge sources: Historical source Case law Legislation Constitution The constitution is the highest source of law in SA The rights of arrested people: S35 (5) of the constitution provides: Every arrested person shall have the right: 1. To be informed, in an understandable language, that he has the right to remain silent and the consequences of making a statement. (S35 (a) & (b)) 2. Not to be compelled to make a confession or admission, which could be used in evidence against him. (S35 (1)(c)) These rights are only for arrested persons