Circumstantial Evidence Witness | Free Criminal Law Essay
Evidence means in any suit or proceedings of existence evidence is very important aspects. Such as if any body wants to know about a relevant fact that is by the evidence. The best proof is what he perceives through his own senses. In evidence documentary is primary evidence. They contain rules regarding witness and their examination on the basis of documents and what facts.There are two kinds of evidence as follows.
1. Direct evidence
2. Indirect or circumstances evidence.
3. Direct evidence-the rules of evidence in generally are the same in civil, and criminal proceedings. Direct evidence is known as positive Evidence. Evidence which is given by
Witness directly such as at the time of cause of action witness was present as well.
Evidence given by eye witness is called ‘Direct Evidence'. It is the testimony of a witness to the existence or non-existence of the fact or facts in issue. It is also known as ‘positive evidence'.
Circumstantial Evidence is a testimony by witnesses as to the circumstances from which an inference is to be drawn as to the fact in issue. In case of absence of direct evidence then circumstantial evidence can be resorted to. It is the evidence which relates to a series of other facts than the fact in issue, but by experience has been found so associated with the fact-in-issue in relation top cause and effect that it leads to a satisfactory conclusion.
Relevancy means a close relation to a particular matter. In Evidence the term relevant has two meanings ‘Connected' and ‘Admissible'. It means that may refer to facts to which is applied are so related to each other that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present or existence or non-existence of the other. Relevant facts are facts so connected with each other as to prove or disprove the facts in issue. Relevant facts are not themselves issues, but are the foundation of inferences regarding them.
The material evidence is that evidence, which has to be linked with the fact of the case in order to get conclusion of the issue. Materiality along with the value of probation has two characteristics, which makes relevant evidence by the providing items. It is based on the cause of action which the plaintiff pursues to prove or that the prosecutor should confirm in a criminal case to avoid conviction.
The term ‘Character Evidence' used under Evidence Law in United States and Canada in order to describe the proof of documents submitted by the party. The evidence of good character or bad character is helpful to court in deciding the matter in issue. There are three ways to produce such evidence in a court. It is also revealed that the ability of defendants to call character witnesses can give an advantage to more affluent defendants.
- To prove about the bad activities of the individual prior to this act.
- Character of the witness according to his own opinion.
- To prove the reputation of the individual.
MEANING: Hearsay Evidence is also known as “Derivative Evidence” or”Second hand Evidence” or “Unoriginal evidence”
Hearsay evidence is that evidence, which the witness has not learnt through his own bodily senses, but learnt through the media of others.
VALUE OF HEARSAY EVIDENCE:
- Hearsay evidence is no evidence” because oral evidence in all cases must be direct.
- Due to the repetition of the statements from one person to another, there is every likelihood of depreciation of truth.
- Due to the repetition of the statements, the original fact is added several concocted and silly things. Thus the original fact disappears and false comes to appearance.
Privileged Communications means a right given to the person to with hold evidence to disclose or not to disclose certain matters. The Privilege is based on the grounds of convenience and public policy. Privileges are classified into certain class of witnesses.
COMPETENCY TO TESTIFY
The expression ‘Competence of Witnesses' refers to capacity or ability or qualification to give evidence in the Court of Law. All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
However certain persons are regarded not competent to testify/give evidence. Example Children and Insane Persons.
OPINION EVIDENCE AND EXPERT WITNESSES
In general the courts always go with the direct evidence and tend to accept the evidence of witness, who saw or heard or perused the fact. The courts basically depend only up on direct evidence and Indirect evidence. However sometimes in certain occasions, the circumstances of the cases make it necessary to obtain the opinion of third parties who is not at all related to the case. The third party should be expert in a particular field to examine and to give the witness. The courts exercise discretionary power while entertaining the opinions of third persons.
Experts Opinion or Witness:
An expert is a person who is having skill in a particular field viz. art or trade or science, foreign law, identity of hand writing and finger-impressions etc. In other words, an expert is a skilful professional in particular field capable of possessing specialized knowledge concerning the matter in issue, which a common man cannot possess. The term expert includes both the superior knowledge and practical experience in a particular field. Every expert need not have academic qualifications.
Direct examination is also called as Examination in chief. It means examination of a witness called by the party. Conversely if the advocate for the plaintiff introduces witnesses is support of his case and examines them, it is called Direct examination. In the same way, in case of the defendant's side examination in chief is the first stage. This examination performed to obtain facts by the party for which he is claiming. In this examination no leading question can be put, leading question is one, which suggests the answer. Only relevant questions should be asked.
Examination of a witness by the adverse party shall be called as cross-examination. The purpose of the cross-examination is to test the veracity of the witness. In evidence the right of cross-examination of a witness is given to an adverse party. Where the parties arrayed as defendants in a suit have taken contradictory stands on a relevant and material issue, they shall be adversary to each other and are entitled to exercise their right of cross examination against each other. The purpose of the cross-examination is not confined to limited extent, but extends to whole of the case.
When a witness is cross-examined, he may be asked any question which tends:
1. To testify his veracity (correctness):
2. To discover, who he is, and what is his position: and
3. To shake his character.
These questions cannot be asked in examination –in-chief.
The witness is the important factor. The court relies upon the evidence given by the witness to arrive at the truth or falsity of the claim or charge in the litigation. Court must pay attention on the trustworthiness of the witness. Sometimes the witness may charge his mind and give the evidence contrary to the fact. The witness called by the party turns hostile and it is not safe to rely upon such evidence. In those circumstances the parties of the suit should be empowered to give independent testimony as to character of the witness showing that he is unworthy of belief by the court. This is called as “Impeaching the credit of witness”.
The party who Calls him may impeach the credit of witness in the following ways by the adverse party, or, with the consent of the Court:
- By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy or credit:
- By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
- By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
- When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
Real evidence is the evidence which is addressed to the sense of the court and the object is also presented for the inspection or it. For example the bloodshed knife which was used to murder; bloodstained clothes of the accused, of deceased, documents, etc.
As per the American jurisprudence, demonstrative evidence is one type of evidence, which must be relevant with the case. This evidence can be used for the purpose of record or it can be taken as supportive evidence. If the Advocate wants to mark the demonstrative evidence he has to ask to the court to mark as identification. In this case relevancy of this evidence has been challenged. The burden or proof goes on the shoulder of advocate to show how the relevancy of facts is concerned and he should prove the authentication of the evidence.
The Scientific evidence is an expert witness called to opine about the validity and reliability of theory. This witness must be certified as an expert witness for that he has to fulfill the following conditions.
- He should be qualified about the subject matter
- He must have knowledge about the scientific theory and instrument implementing theory.
Judicial Notice means notice or recognition of the truth of the facts taken by a judge, which do not require proof by any evidence. These facts are well known. Judicial notice takes the place of proof, and is a of equal force. As a means of establishing facts, it is therefore superior evidence. A judicial notice is a notorious fact. Generally it cannot be rebutted. It is not a probable consequence drawn from facts, but is a real fact. There is no necessity of reasoning in the judicial notice. Very meager discretion is given to the courts in case of judicial notice. There is no such burden of proof on the party seeking judicial notice. There is no such division in judicial notice.
BURDENS OF PROOF
The expression burden of proof means “obligation to prove a fact”. Ordinarily the burden of proof lies on the person who has contended a fact or has tried to establish a case. Every party has to establish facts, which go in his favour or against his opponent, In other words, the general rule with regard to burden of proof is: “He who asserts must prove”. The reason is “one who drags another into the court must hear the burden of proving the facts which he asserts”.
The word ‘proof' signifies a state of mental certainty as to existence or non-existence of some fact and the phrase ‘burden of proof' in its correct sense means “ the responsibility of creating that state of mind”. When a person is bound to prove the existence of any fact, it is said that the burden of lies on that person. The
PAROLE EVIDENCE RULE
The parole evidence rule is a basic principle of a contract in a general law in written form of contract, which represents between the concerned parties in a complete contract. The terms of the contract is based on the documents. The rules generally forbids extrinsic evidence contract. (i.e. the language of the contract doesnot contained the evidence of communications that took place betwee the parties) (Jacobs v. Batavia & General Plantations Trust Ltd  1 Ch 287).
For the implementation of the rule the contract must be in writing, it must, in the judgment of the court, be the final agreement between the parties etc. An agreement should be in writing for the completion of agreement with all terms, and then it becomes the final agreement. The written form of agreement is more preferential form of contract that oral.