The Law of Evidence
From Traditional Rules to Modern Principles
What exactly is the meaning of the word "evidence"? The term "evidence" comes from the Latin word "evidens evidere," which means "to show clearly; to make clear, certain, or to prove."
A set of regulations for determining disputed facts in judicial investigations is known as the "Law of Evidence." A system of rules and guidelines known as the "Law of Evidence" governs this process of gathering the facts, which are the fundamental components of a right or responsibility and are the main and possibly most challenging job of the court. A set of regulations for determining disputed facts in judicial investigations is known as the "Law of Evidence." The "Law of Evidence" governs this system of gathering facts, which are the fundamental components of a right or liability and are the main and possibly most challenging role of the Court.
In a case, the court typically deals with three matters− first, determining whether or not a specific event actually occurred; second, applying the procedural law in the case of the specified event; and third, determining the parties' rights and obligations by applying the fundamental law to the relevant matter.
The "key" that a court requires to make a decision is evidence. There can be no proof if there is no evidence. Information is presented to the court through evidence. A certain account of the events must be accepted by the court in order to establish facts through the presenting of evidence. Of course, one can pursue the truth even if it violates the parties' constitutional rights. Evidence gathered illegally, however, can not support the upholding of justice in the future. Therefore, in order to accomplish quick, equitable, and cost−effective justice, the proof process should be governed by evidentiary norms and standards.
The law of evidence therefore legally means, exclusive of mere arguments, which tend to prove or disapprove any matter of fact the truth of which is submitted to judicial investigation.
The legal concept of evidence is neither static nor universal.
Medieval understandings of evidence in the age of trial by ordeal would be quite alien to modern sensibilities (Ho 2003–2004) and there is no approach to evidence and proof that is shared by all legal systems of the world today. Even within Western legal traditions, there are significant differences between Anglo-American law and Continental European law (see Damaška 1973, 1975, 1992, 1994, 1997). This entry focuses on the modern concept of evidence that operates in the legal tradition to which Anglo-American law belongs. It concentrates on evidence in relation to the proof of factual claims in law.
It may seem obvious that there must be a legal concept of evidence that is distinguishable from the ordinary concept of evidence. After all, there are, in law, many special rules on what can or cannot be introduced as evidence in court, on how evidence is to be presented and the uses to which it may be put, on the strength or sufficiency of evidence needed to establish proof and so forth. But the law remains silent on some crucial matters. In resolving the factual disputes before the court, the jury, or at a bench trial, the judge has to rely on extra-legal principles. There have been academic attempts at systematic analysis of the operation of these principles in legal fact-finding (Wigmore 1937; Anderson, Schum, and Twining 2009). These principles, so it is claimed, are of a general nature. On the basis that the logic in “drawing inferences from evidence to test hypotheses and justify conclusions” is governed by the same principles across different disciplines (Twining and Hampsher-Monk 2003: 4), ambitious projects have been undertaken to develop a cross-disciplinary framework for the analysis of evidence (Schum 1994) and to construct an interdisciplinary “integrated science of evidence” (Dawid, Twining, and Vasilaki 2011; cf. Tillers 2008).
Stephen (1872: 3–4, 6–7) long ago noted that legal usage of the term “evidence” is ambiguous. It sometimes refers to that which is adduced by a party at the trial as a means of establishing factual claims. (“Adducing evidence” is the legal term for presenting or producing evidence in court for the purpose of establishing proof.) This meaning of evidence is reflected in the definitional section of the Indian Evidence Act (Stephen 1872: 149). When lawyers use the term “evidence” in this way, they have in mind what epistemologists would think of as “objects of sensory evidence” (Haack 2004: 48).
Evidence, in this sense, is divided conventionally into three main categories: oral evidence (the testimony given in court by witnesses), documentary evidence (documents produced for inspection by the court), and “real evidence”; the first two are self-explanatory and the third captures things other than documents such as a knife allegedly used in committing a crime.
One interesting chapter of Law of Evidence is the admissibility of a rape victim’s previous sexual behaviour. Statue provides that such an evidence is only admissible if there is unique similarity between the past behaviour and the current charge. In R v Evans (2012), lewd utterance and preference for a sexual position was said to be unique and thus admissible.
The evidence available does confirm the popularity of this sexual position (The UK’s “favourite sex positions” revealed in new survey). The Independent, 11 February 2015, with 51% of respondents in Wales saying that ‘doggy style’ was their favourite sexual position. Another survey found this position to be the favourite of 57% of respondents in the north of England, Huffington Post.
Further, language such as that allegedly used in Evans also appears to be common, being a standard trope in mainstream pornography. A search of the most popular commercial pornography website, Pornhub, in March 2017, produced 1259 results for ‘f.k me harder’ with many more for ‘harder’, and 6964 videos tagged for the ‘doggy’ position.
In sum, the Evans case does not simply open the ‘floodgates’ but risks a tsumani. Common, everyday sexual activity is at risk of being admitted, with an open invitation to the defence to trawl through a complainant’s sexual history seeking ‘similarities’. It focuses attention on the complainant’s lifestyle and character, rather than on the defendant’s actions at the time of the alleged offence.
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