Chapter 1: Introduction
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(1) WHAT IS THE LAW OF EVIDENCE?
The law of evidence as a distinct field of study which developed in the period 1770 to 1830 consisted of two elements: first, the collation and classification of an avalanche of cases; and second, a "comparatively small number of Acts of Parliament which attracted the denunciation of Bentham."
With regards to the first element, the most important early attempt at a treatise on the law of evidence was William Nelson's The Law of Evidence (1720). In that treatise each chapter consisted of numbered propositions founded on statutes and an analysis of over fifty series of legal reports compiled and published before 1700. Although Nelson did not extract the underlying principles of the law of evidence from these sources, the treatise inspired Geoffrey Gilbert's and Thomas Peake's classic works on the subject in 1754 and 1801 respectively.
For Gilbert the whole corpus of law of evidence can be subsumed under one principle: the Best Evidence rule which ordains that "the first and most signal rule in relation to evidence is this, that a man must have the utmost evidence the nature of the fact is capable of." This principle was treated as a fundamental principle by Gilbert's successors such as Peake, Greenleaf , Taylor and Best but later reduced by Thayer to a counsel of prudence. By 1875, Judge James Fitzjames Stephen embarked on a project to simplify the law of evidence by writing a lucid text which was radically different from texts with "enormous mass of detail and illustration into which ... writers naturally fall ... which makes these books useless for the purposes of study, though they may increase their utility as works of reference." This project, entitled A Digest of the Laws of Evidence , was published in 1876. In the Digest , Stephen systematised the law of evidence by presenting the rules, the principles, the presumptions, the concepts and doctrines in a number of sections described as Articles.
Towards the end of the nineteenth century, three magna opera on evidence were published in the United States by Greenleaf , Thayer and Wigmore. Whilst Greenleaf's text was the first to dominate the US market, it also inspired Taylor who profusely acknowledged his debt of gratitude to Greenleaf in A Treatise on the Law of Evidence (1848), but pride of place must be accorded to Thayer regarded as "the greatest of all evidence scholars" who in his Preliminary Treatise expounded the principles of the law of evidence with refreshing candour and Wigmore, his disciple, who completed the task in ten volumes of historical erudition entitled Evidence in Trials at Common Law .
Two English texts which dominate the twentieth century are instructive: Cross's text elaborated on some of the themes tackled by Wigmore but is rather thin on other celebrated textwriters whilst Nokes's opuscle is still a sourcebook for researchers on the law of evidence in view of its discussion of views of textwriters from Gilbert to Wigmore. We must also take cognizance of the theoretical works on evidence by contemporary textwriters such as Morgan , Twining and Anderson , and Damaska.
The twentieth century was the century of reforms. In civil proceedings, four pieces of legislation are significant. The first is the Civil Evidence Act 1938 which defined the word "document" as including "books, maps, plans, drawings and photographs” and superseded statutory inroads into the hearsay rule in civil proceedings such as the Parochial Registers Act 1812, the Evidence Act 1845 and the Documentary Evidence Act 1868 which rendered admissible various documentary evidence. The second is the Civil Evidence Act 1968 which extended that definition by assimilating technological developments into evidentiary rules; and the third is the Civil Evidence Act 1972 which regulates the admissibility of the opinions of expert and lay witnesses. Finally, the Civil Evidence Act 1995 superseded Part I of the Civil Evidence Act 1968 by replacing it with simpler provisions.
In criminal proceedings the Eleventh Report of the Criminal Revision Committee in 1972 and the Royal Commission on Criminal Procedure in 1981 and the resulting Police and Criminal Evidence Act 1984 are landmarks. But there are five important Reports worthy of note. The first is the Report of the Advisory Group on the Law of Rape (the Heilbron Report 1975) which recommended that the trial judge's discretion to admit evidence of sexual behaviours or sexual histories be guided by, and based on, principles set out in legislation. The effectuating legislation was the Sexual Offences (Amendment) Act 1976 now superseded by the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). The second is the Report of the Committee on Frauds Trial (the Roskill Report 1986) which recommended, inter alia, the use of live television link and was effectuated by section 32 of the Criminal Justice Act 1988. The third is the Report of the Advisory Group on Video Evidence (the Pigot Report 1989) which recommended that diagnostic videotaped interviews be used as examination-in-chief in child abuse cases. This recommendation was effectuated by section 32A of the Criminal Justice Act 1988. The fourth Report is Speaking Up for Justice , the Report of the Interdepartmental Working Group on Intimidated Witnesses in the Criminal Justice System published in June 1988. The recommendations of this Working Group were enacted in the YJCEA 1999. The fifth is Justice for All , the White Paper on Criminal Justice which recommended wide ranging reforms on court procedure and sentencing effectuated by the Criminal Justice Act 2003.
Some of the recent reforms of criminal trials such as adverse inferences from silence, the empowerment of vulnerable witnesses, the proliferation of cases where the burden of proof is placed on the accused and the exceptions to the hearsay rule in criminal trials bristle with practical evidential difficulties. These evidential difficulties will be assessed critically in the ensuing chapters taking cognizance of the principle of orality and the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (The European Convention).
(2) ARRANGEMENT OF CHAPTERS
There is no hard and fast rule on the arrangement of chapters: a writer's decision on the appropriate schema is guided by logic and experience.
The law of evidence is presented in this book in fifteen chapters divided into six parts. Chapters 1 to 3 cover the Introduction, Preliminaries such as the meaning and classification of evidence, relevance and admissibility, the functions of the judge and jury, and the burden and standard of proof. Chapters 4 to 8 explore the basic concepts: presumptions, earlier judicial findings, competence and compellability, corroboration, privilege against self-incrimination and the right to silence. Chapter 9 deals with the evidence of identification in its entire ramification whilst in Chapter 10 public interest immunity and privilege are discussed. Chapters 11 and 12 cover the course of evidence, evidence of character and similar facts in civil proceedings.
Finally, Chapters 13 to 15 cover the hearsay rule which, we are told, is the most important topic in the law of evidence ; the rule against opinion: expert and lay witnesses; and illegally obtained evidence and confessions.
See William Twining, Rethinking Evidence: Explanatory Essays (Illinois: Northwestern University Press, 1994), at 185.
J.F. Stephen, A Digest of the Law of Evidence , ed. by H.L. Stephen and L.F. Sturge, (London: Macmillan, 1948), at x. For Bentham's aversion to the exclusionary rules of evidence, see J. Bentham, The Rationale of Judicial Evidence , London: Hunt and Clarke, 1827), Vol. 1, at 5.
The second edition was published in 1735 by R. Nutt and R. Gosling.
See G. Gilbert, The Law of Evidence (New York and London: Garland Publishing Inc., 1979) [a reprint of the 1754 ed. printed for Sarah Cotton, Dublin].
See T. Peake, A Compendium of the Law of Evidence (New York and London: Garland Publishing Inc., 1979) [a reprint of the 1801 ed. printed for E. & R. Brooke and J. Rider, London].
Supra, n. 4, at 4.
S. Greenleaf, A Treatise on the Law of Evidence (Boston: Little, Brown), 1842.
J.P. Taylor, A Treatise on the Law of Evidence 12th ed. by R.P. Croom-Johnson and G.F.L. Bridgman, (London: Sweet & Maxwell, 1931), Vols. 1 and 2.
W.M. Best, The Principles of the Law of Evidence , 12th ed. by S.L. Phipson, (London: Sweet & Maxwell, 1922).
See J.B. Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston: Little, Brown, 1898), at 487-8.
J.F. Stephen, A Digest of the Law of Evidence , 1948, at vii.
Supra, n. 7.
Supra, n. 10.
J.H. Wigmore, Evidence in Trials at Common Law , P. Tillers rev. (Boston: Little, Brown, 1983), Vols. 1-10.
Supra, n. 8, Vol. 1 at p.v.
W. Twining, Theories of Evidence: Bentham and Wigmore (London: Weidenfeld & Nicholson, 1985), at 5.
Supra, n. 14. See also J.H. Wigmore, The Principles of Judicial Proof (Boston: Little, Brown, 1913) .
See Sir Rupert Cross, Cross on Evidence (London: Butterworths, 1967).
G.D. Nokes, An Introduction to Evidence (London: Sweet & Maxwell, 1967).
E.M. Morgan et al. , The Law of Evidence: Some Proposals for Reform (New Haven: Yale University Press, 1927).
Supra, notes 1 and 16.
T. Anderson and W. Twining, Analysis of Evidence (London: Weidenfeld & Nicolson, 1991).
M.R. Damaska, Evidence Law Adrift (New Haven and London: Yale University Press, 1997).
Section 10 (1) of the Civil Evidence Act 1968 defines the word "document" as including discs, tapes, sound track and microfilms. The use of radars and computers are also recognised.
For a critique of these provisions, see S.E. Salako, "The Hearsay Rule and the Civil Evidence Act 1995: Where are we now?" (2000) 19 CJQ 371-385.
See YJCEA 1999, ss. 34, 35 and 41.
Substituted by s.54 of the Criminal Justice Act 1991.
Cm 5563, 2002.
See A. Ashworth and M. Blake, "The Presumption of Innocence in English Law"  Crim LR 306.
See S.E. Salako, "Hearsay in English Criminal Trials: A Violation of the Convention?" (2001) HR 232-238.
See J. Stone in "Res Gesta Reagitata" (1939) 55 LQR 66 where he opined: "One may be expert in many branches of torts, and yet know nothing of conspiracy. But he who does not understand the hearsay rule knows no evidence."