Escolar Documentos
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FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW
COURSE TITLE :
COURSE CODE
EVIDENCE LAW 1
: GPR 201
PRESENTED TO :
BY
ON
G34/40814/2011
G34/40406/2011
G34/39576/2011
G34/40311/2011
G34/36241/2010
G34/40661/2011
G34/41166/2011
: 7 th December 2012
G34/40360/2011
G34/38061/2011
INTRODUCTION
Evidence given in the court room should be relevant and sufficient. Most important
it must be relevant otherwise if not so it is termed as inadmissible. The witnesses
who adduce evidence during the trial sessions should be qualified to give evidence
as per the rules in evidence law. Parties to the issue to be tried in court should
choose their witnesses carefully as they can either incriminate them or render them
their freedom as per the testimonies they give. A witness should be composed when
giving their testimony as discussed in the essay. Trials being the most efficient way
to gather evidence from witnesses is the method that has been used form the
ancient times till date however, have their pros and cons as discussed in the essay.
The general rule of evidence is that all evidence that is relevant to an issue before
the court is admissible and all irrelevant evidence is inadmissible .Vital information
regarding issues before a court should be got from credible facts and witnesses
and if not, then the information should be excluded . Admissibility of evidence
depends on relevance of a high degree and that evidence tendered should not
infringe on any exclusionary rules applicable to it. On relevance and admissibility
s.5 of Cap.80 expressly states that . no evidence shall be given in any suit or
proceeding except evidence of the existence or non-existence of a fact or issue and
of any other fact declared by any provision of this act to be relevant.
In Conway vs. R it was determined that relevance is a logical and not a pragmatic
concept. Therefore ,for the purpose of determining relevance each piece of
evidence is to be considered independently and a piece of evidence remains
relevant however many other pieces of evidence are tendered to prove the same
fact. Hence relevance is a concept which proof of one fact renders the existence of
another fact probable or not.
In D.P.P. vs. Kilobourne ,it was held that evidence is relevant if it is logically
probative /disprobative of some matter that requires proof .It is sufficient to say that
relevant evidence is evidence that makes the matter that requires proof more/less
probable or not.
In civil proceedings however, merely because evidence is admissible it may not be
necessarily admitted since the judge has power to exclude pursuant to his case in
his management role. This power should be used with great circumspection.
called him/her
Examination in chief is the first stage of a civil or a criminal trial- It entails the
questioning of a witness by the party who has called /brought the witness, the party
calling the witness or his/her advocate will seek to elicit evidence which supports his
or her version of the facts in issue or relevant to the case .
CROSS EXAMINATION
During trials a witness is questioned under oath and they are required to give
evidence attesting to a given event. According to sec .154 of the Evidence Act, a
witness may be cross examined to establish.
1)His accuracy ,veracity of credibility,
2)to discover who he/she is and what is his/her position in law,
3)shake his credit by injuring his character although the answer to such questions
might tend to directly or indirectly incriminate him or might expose him to a penalty
or forfeiture.
Testimony of witnesses may also be deemed as forms of judicial evidence and the
courts have a requirement that they be said in court so as to determine their
reliability. Evidence before the court will not be accepted as being admissible if it
has not been sworn. In Maisham ,ex parte Pethick Lawrence [1912} KB 362, where
the magistrate s court by error conducted a case on the basis of unsworn evidence
and thereafter reheard the case in the proper manner on the same day , an appeal
was brought on the ground that the accused had stood in jeopardy twice because
of the procedure taken by the appeal and the appeal failed because the first hearing
was based on unsworn evidence and thus had been nullity of accused had not
stood in jeopardy . In addition ,lying under oath forms part of idiosyncratic tactics
that humans form under pressure .A witness who lies under oath is considered to be
guilty and the same also goes for one who remains silent absolutely. In cases of
lying about previous mentioned that the latter is a lie and that lying about previous
facts can form part of conscience of guilt and this leads to the guilt of the witness
.Through this, we see that trials do not give room for evidence that is false and
therefore credible evidence is brought forth.
Under section 163(1)(c) of the evidence act , the character of a witness might be
impeached on the grounds of contradictory statements he made that might be
inconsistent with part of his evidence .In case of appearances of witness ,the court
will be more likely to accept evidence from a forth right and un perpetuated
witness by cross examinations ,the court will no doubt be more disposed to believe
him that it will a halting and previcating witness although this has been disputed in
the case of as to whether the demeanor is important during cross examination by
the examination in chief or re- examination by the Attorney General of the
sovereign state of Akiton and Dhekelia VS Stein hof. As far as the facts in issue are
concerned the type of demeanor is analogous to the answers given by a witness
Leading questions in a trial session are defined in section 149 of the evidence
act as ;
Evidence elicited by leading questions is admissible but the weight which can be
attached to it may be reduced accordingly. This was illustrated in the case of
Moor vs. Moor where a wife petitioner in an undefended divorce petition was
asked a series of leading questions in chief that predictably attracted a Yes or
No answer. Some of the questions she was asked were: 1)Did you suspect your
husband was having an affair with someone else?
2)As a result of those suspicions ,did you leave your house in October 1936?
The trial judge declined to exercise his discretion in the wifes favor on the ground
that she had equally been guilty of adultery and had started the chain of events
that led to the breakdown of the marriage and dismissed the divorce petition .
.Trials are essential because they not only allow for documentary evidence but also
real evidence is presented during trial which would not be the case if did not have
trials. Real evidence is evidence from which the tribunal of fact can draw
conclusions from its own perceptions. It may consist of material objects; the
appearance of persons or animals ;the demeanour of witnesses ;views of the locus
quo ;and video or audio tapes ,film and photograph.
When it comes to material objects the court may look at and draw proper
conclusions from visual observation of any object brought before it. The reason why
trials use advantages too is because the best of evidence rule does not apply so any
object brought will be observed regardless of whether it is the subject matter of the
case , it may be ancillary to the issue but nevertheless relevant to it . In Line Vs
Taylor3, this was an action against the defendant, for keeping a vicious dog. The trial
judge permitted the dog to be brought into court so that the jury could asses the
temper for themselves, based on their own experience of dogs and their
observation of this particular animal. There is no objection to secondary evidence
brought before the court such as photographs or films of the object and through
this we see that in trials room is given for presentation of each and every evidence
that is relevant to the case no matter the level of relevance.
During trials the physical appearance of a person may have probative value in
different ways in identification cases, height, build and the skin tone of a person
may be very important. The accent of a person or even the pitch of their voice is
also evidence in identification. A good example of this is stated by Hale where he
says that a physical deformity that would almost inevitably lead to the conclusion
that a person is not guilty of rape. Also physical resemblance between a child and
Generally trials have been and still are the most efficient way to achieve
justice in the courts since they provide the best mechanisms to inquire facts
and testimonies given by the witnesses under oath.
REFERENCES
Collin and Tapper, MA . Cross and Tapper on Evidence,12 th Edition, Oxford
University Press.
Murphy and Glover. Murphy on Evidence ,12th Edition, Oxford University
Press.
Sir M. Hale. Pleas of the Crown, Vol .1
The Evidence Act Cap. 80
The Constitution of Kenya 2010