Judicial Basis Law of Evidence

In most trials the chief form of evidence is the sworn testimony of witnesses. But it may include documents, physical property, such as a weapon and scientific evidence.   The court makes its findings of fact from the evidence given directly to the court and the inferences which can be drawn from such evidence.The rules of evidence restrict the evidence which may be presented to the court and determine how that evidence is handled. The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding.

These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The quantum of evidence is the amount of evidence needed; the quality of proof is how reliable such evidence should be considered. This includes such concepts as hearsay, authentication, admissibility, reasonable doubt, and clear and convincing evidence.

There are several types of evidence, depending on the form or source. Evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit), exhibits (e.g., physical objects), documentary material, or demonstrative evidence, which are admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding .

When a dispute, whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to find in his or her favour. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy. Before looking into the operation of judicial discretion in practice, it is necessary to find its definition as it is where this article should begin. The concept of discretion, that is central to the understanding of the judicial process, differs from deciding a question by applying a fixed rule of decision in the way that the decision-maker is able to decide between alternative courses of action .

According to Galligan, discretion is any power entrusted to an official which leaves the decision-maker with ‘some significant scope for settling the reasons and standards according to which the power is to be exercised, and for applying them in the making of specified decisions.’ A clearer interpretation of the definition was given by Aharon, who defines discretion as the power given in a person with authority to choose between two or more alternatives, when each of the alternatives is lawful. Therefore, it can be said that judicial discretion means the power the law gives the judge to choose among several lawful alternatives. There must be more than one possible and lawful courses of action by which the judge can choose the one that most appeals to him .

A very important question that we need to ask is why judicial discretion is necessary. Actually, quite a number of legal philosophers have criticized the concept of judicial discretion. Dicey referred discretion as identical to arbitrariness and a hindrance to the Rule of Law. At the same time, Gibbon believed that judicial discretion is the ‘first engine of tyranny’. The opposition to the concept of judicial discretion stems from the mistrust of the judges who make their decisions not on the basis of clear rules but biases, evil and dishonest motives. Rules, on the other hand, are much more certain. However, rules can never be applied in an entirely mechanical fashion that would result in the admission of gravely prejudicial evidence(though technically speaking, it is admissible) and thus would be unfair to a party. Judicial discretion allows for the flexibility and although it creates uncertainty, it is necessary to avoid potential injustice. The judges can thus exclude evidence which is legally admissible but prejudicial evidence so that the fairness to the accused in a criminal trial can be ensured.

4.5 When Evidence is Relevant on Scale of Conclusions

At common law, judges have discretion to exclude evidence which is admissible. In Noor Mohammed case it was held that it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible and the decision must be left to the discretion and the sense of fairness of the judge . In R v Sang, Lord Diplock gave an important obiter that the trial judge has discretion to exclude the evidence where the prejudicial effect of evidence outweighs its probative value if its admission would result in an unfair trial. Another category of evidence that judges can also exercise discretion to exclude is those that are illegally or improperly obtained. But as far as this question is concerned, I will only focus on the exclusion of prejudicial evidence in the rest of the article.

The discretion to exclude evidence unfairly prejudicial to the defence owes its existence partly to the judicial mistrust of jurors. Jurors may misuse the evidence in the sense that false inferences are drawn from the evidence or putting more weight on evidence than it deserves. When exercising the discretion, judges are required to balance the prejudicial effect of evidence against its probative value. But we must bear in mind that evidence which is prejudicial only in the sense that it incriminates the accused is not prejudicial for the purposes of the discretion.

So how little probative value or how great prejudicial effect on the accused of a piece of evidence has can the judges exercise their discretion? In R v Christie , it was held that evidence should not be given if ‘seriously prejudicial and of little value in its direct bearing of the case’. And in Noor Mohammed v R mentioned above, the evidence is of ‘trifling weight’ or ‘gravely prejudicial character’ though ‘technically admissible’. Also in DPP v Boardman , Lord Salmon referred to the exclusion of evidence of ‘minimal value’. Later on, a modified test emerged and evidence of considerable probative value could also be excluded provided that the prejudicial effect is substantial.

The discretion to exclude evidence more prejudicial than probative can be applied to any type of admissible evidence. In the following, I will try to explain how the discretion operates in several different kinds of evidence.

4.6 Similar Fact Evidence

Similar fact evidence is the evidence that the accused has behaved on other occasions in a way similar to the way he is alleged to have behaved on the occasion which gave rise to the indictment. According to Pattenden, the questions of admissibility and discretionary exclusion of similar fact evidence are almost inseparably interwined. The landmark case of this area of law is DPP v Boardman . Prior to its decision, the courts classified situations in which the prosecution may wish to use similar fact evidence and laid down rules allowing it whenever a particular defence was put forward. An example would be whenever offences involving homosexual acts are alleged against an accused who is homosexual, then the jury may be told of his homosexuality. All these old categories were discarded by the House of Lords in Boardman v DPP and it was held that each case should be looked at individually. It also provided that similar fact evidence would be admissible if its prejudicial effect on the accused in the eyes of the jury is either justified or outweighed by its probative value. Therefore, the judge must be able to ensure two things before admitting a particular piece of similar fact evidence.

Firstly, he or she must be satisfied that the evidence is probative of the accused’s guilt. Secondly, he or she must be satisfied that the prejudice to the accused is not so great that the jury would convict because they are prejudiced rather than because they have sufficient evidence of guilt. It is in the latter that the judge can exercise judicial discretion. At the summing up immediately after the trial closed, he can give the jury directions on how they should approach certain pieces of evidence. If he is satisfied that he can ensure that the jury look at the similar fact evidence for its true probative strength, and are not simply prejudiced and have the possibility to jump to a false conclusion, he can allow the evidence to be admitted . On the other hand, he may exercise his discretion and take away that piece of similar fact evidence. But there may be cases where though the prejudicial effect of similar fact evidence is overwhelming, the probative force is so great that it is sufficient to ensure a conviction. No injustice would be done if the evidence is admitted in those cases