Leducate Explains: Criminal Evidence Law at a Glance
Hint - key terms are defined. Just click on the bold blue words to see their definitions!
In this article, we will be looking at what criminal evidence law is and the role it plays in criminal trials. This is a complex topic, so in this article, we will be taking a cursory look into the concept of evidence and the different types of evidence.
Introduction
Some of you may be familiar with criminal law - understanding what is meant by a particular crime, such as theft, and what elements need to be proved in order to establish it. Evidence is just another piece of this puzzle. Although many find evidence to be complex and somewhat daunting because of the many legal rules and mechanisms in place, I would like to assure you that this area of the law is wildly fascinating and there is nothing that cannot be understood with a little bit of logic and common sense.
In a criminal trial, evidence can help shed light on a whole range of matters at issue between the parties: from things like what actually happened, what are the relevant facts, what inference(s) can be drawn from the facts, and so on. Evidence, therefore, is essential to establishing whether or not someone has in fact committed a crime.
Facts vs. information vs. evidence
Vector by kokandr
Imagine a car crash – a big, mangled mess in the middle of the road. The ‘facts’ describe everything you could possibly know about that collision: the type and size of the cars, the precise speed at which each car was travelling at, engine temperature, oil pressure, the intelligence of each driver, the level of driving experience of each driver, and (you get the picture) the list goes on! When it comes to the law, however, you can never have all the facts simply because there are too many of them. No bystander can witness them all, and no instrument can measure them all. Bystanders will notice what they think is important, and investigators will measure what they believe to be important. Therefore, any fact which is observed or measured goes on to become precious ‘information’; and any fact which is not observed or measured, will be lost in oblivion.
As you can see from the diagram above, the ‘information’ about an incident is a part of all the ‘facts’. In criminal matters, the role of the police will be to obtain as much information as they can about the incident. ‘Evidence’ represents those bits of the ‘information’ which can be brought before the court. It goes without saying that not all the ‘information’ will be able to be brought before the court. Some information may be obtained second- or third-hand, it may be obtained covertly (meaning in ways that the court would not accept), or may even be obtained unlawfully as a result of threats or undue pressure. The court has a whole system of rules in place which limit the ‘information’ that can be brought before it.
Takeaway point: Facts are everything we could possibly know > Information is everything we do know > Evidence is everything we can show the court
Types of evidence that can be admitted in court
There are three basic types of evidence: oral evidence, documentary evidence, and real evidence.
Oral Evidence:
Oral evidence is evidence that is given in the courtroom under an oath to tell the whole truth. So a lay witness can come before the court to present their knowledge of the facts (for example, a bystander to a car crash incident can give their account as to what actually happened), or an expert witness can be called to assist the court on an issue that requires professional opinion (for example, a doctor can be called in to explain how the driver of the car may have been operating under the influence of a medical condition called sleep apnea). Some of the key features of oral evidence include:
It is given orally (i.e. by question and answer) – the role of the witness is to answer questions from the lawyers, and sometimes from the judge. Therefore, a witness is not allowed to get up on the witness stand and make a speech to the court as they please.
Witnesses can only give evidence about things that they themselves have detected with their own five senses (things that they have seen, heard, touched, smelled and tasted).
Witnesses giving oral evidence are usually examined in three stages –
Evidence-in-chief, where the witness is questioned by the lawyer who has called them as a witness. Here, the lawyer will put forward a series of questions to the witness in ‘open’ format (i.e. questions beginning with who, what, where, when, how and why).
Cross-examination, where the witness is questioned by the lawyer from the other side. Here, the lawyer will usually do their best to put the witness under pressure by asking them a series of questions in ‘closed or leading’ format (i.e. questions where the answer is suggested by the question itself).
Re-examination, where the witness can be questioned once again by the lawyer who has called them to clarify some of their answers given in cross-examination. It is an opportunity for the witness to set any ambiguities right. Here, the lawyer will have to keep their questioning within the limits of what was asked during cross-examination.
Sample Questioning styles:
Open format – What did you do when you saw the traffic light go from green to amber to red?
Leading format – When you saw the traffic light go from green to amber, you accelerated instead of slowing down, didn’t you?
Documentary Evidence:
Documentary evidence, as the name suggests, is evidence in the form of a document. This can be anything from a piece of paper with writing on it, to a photograph, to a text message, the contents of a USB drive, or even a bumper sticker on a car. Anything where data can be extracted or read, with or without the use of a machine, is a document. The document has to be brought into court in order for the parties to test the evidence – so a witness has to be prepared to authenticate the document and answer questions about it from the lawyers.
Real Evidence:
Real evidence is any evidence that is brought within the court itself. These can be things that lawyers or jury members can physically hold and inspect for themselves (e.g. a piece of fabric or an item). A lawyer may present an exhibit or do a demonstration or re-enactment of some part of the evidence. In some instances, jury members may be brought to the scene of the incident to inspect the place for themselves – this is known as ‘a view’. This may enable them to have greater insight as to what may have happened during the incident.
Conclusion
This article has touched on the concept of evidence in relation to facts and information, as well as the different types of evidence that can be admitted into court. Look out for future articles in which we will look at some of the rules that the court will apply in deciding whether or not it will consider the evidence that a party wishes to rely on. These rules can be complicated, but I will make them digestible and enjoyable for your understanding!
Written by Veera Poonganesan
Glossary box
Undue Pressure - Where someone has put excessive pressure or forces someone to do something.
Lay Witness - Someone who is not an ‘expert’ in what they are discussing; someone who relies on their personal knowledge and life experiences. For example, you or I describing a car accident that we saw.
Expert Witness - Someone who has knowledge in a topic that the average person would not, such as technical expertise of being a scientist or engineer. For example, a Doctor could be an expert witness if the topic was something to do with health or the body.