LAW OF EVIDENCE

• Course Code: Laws-3043

• Credit Hours: 3hrs./week
• Year: III Academic Year: 2015 Semester: II
• Instructor Name: Abera Shewangizaw Getaneh
• Title: (LLB, LLM); Civil Bench Core Processor and Judge at
ANRS North Shewa Zone High Court
• Phone Number: 0910469159
• E-mail: [email protected]
Course Description
• The course on Law of Evidence equips students with knowledge of the meaning, nature,
development and classification of evidence in various legal systems.
• It cove rs such t he m e s as proof wit hout e vide nce , adm ission, judicial not ice ,
presumptions and proof with evidence; it shall give special focus to relevancy and
admissibility of facts in various aspects.
• Oral evidence encompassing competence of witnesses and grounds of incompetence,
privilege and status of hearsay as evidence are also integral parts of the course.
• Documentary, scientif ic, real and demonstrative evidences, and burden and standard of
proof of facts in civil and criminal cases will likewise be discussed in conjunction with
constitutional rights and protections afforded to persons subjected to investigations,
searches, or the seizure of materials.
• It also deals about nature, meaning and historical development of forensic science. Sub-
f ields of forensic science, protection and investigation of crime scene, f inger print, DNA,
blood and other f luid evidence, and post-mortem examination are also an integral part of
the course.
Objectives, Competence Achieved
After a successful completion of the course, students are expected to achieve basic
knowledge and competence regarding:
 the various situation in which proof without evidence is possible;
 what relevance and admissibility mean;
 demonstrative and documentary evidences;
 the burden of proof and persuasion in civil and criminal cases and the standard of proof
required in each case;
 constitutional values which guide law of evidence;
 the nature, development, and application of evidence law in criminal and civil cases in
civil and common law legal system including Ethiopia;
 admission, judicial notice and presumptions as means of proof without evidence;
 rebuttable and irrebuttable presumptions;
 the policy considerations and prohibitions for admissibility of some relevant facts as
evidence;
Continued…
 who could be a witness and the grounds of incompetence in witnesses,
privileges, and rules on hearsay;
 the various types of privileges;
 the status of hearsay evidence and its constitutionality in Ethiopia;
 demonstrative evidence and the various considerations in assigning its
weight;
 def ine and discuss forensic science including its goals and importance in
the justice system, and explain concerns of the forensic science;
 familiarize them with application of basic science in forensic science;
 appreciate how the forensic science applies basic science for legal issue
and concern;
 understand burden and standard of proof.
 Course Outline
Chapter One: Evidence Law General Chapter Two: Proof Without Need
Introduction to Establish Evidence
1.1 Me a n i n g, Na t u r e a n d P u r pose of
Evidence law 2.1. Admitted facts
1.1.1 Evidence Law defined 2.1.1. Limitations of Admissions
1.1.2 Nature of Evidence law 2.1.2. Classif ic ation of Admission:
1.1.3 Purpose /signif icance of Evidence formal and informal admissions
law
2.1.3. Types of Admissions: Judicial
1.2 Development of Evidence law and Extra- Judicial
1.3 Evidence in civil and common law legal
systems 2.1.3.1 Judicial Admissions: civil and
1.4 Evidence in Ethiopia
criminal cases
1.5 Evidence law in civil and criminal cases 2.1.3.2. Extra- Judicial Admission:
1.6 Classification of evidence civil and criminal case
Course Outline Continued…

Chapter Two Continued… Chapter Three: Relevance and Admissibility

2.2 Presumption 3.1 Facts in issue
2.2.1 General introduction: basic fact 3.2 Re le v ant fact s (re le v ancy and
and presumed fact admissibility)
2.2.2 Presumption of fact 3.3 Facts Relevant to facts in issue
2.2.3. Presumption of Law 3.4 Relevancy of Confession
2.2.3.1. Irrebuttable Presumption 3.5 Relevancy of Circumstantial Evidence
3.6 Relevancy of similar Occurrence
2.2.3.2 Rebuttable Presumptions
3.7 Relevancy of Judicial decision
2.2.3.3 Permissive presumptions
3.8 Relevancy of character evidence
2.3 Judicial Notice
3.9. Relevant but inadmissible facts
2.3.1 Judicial notice of adjudicative
3.9.1 Admissibility: General
facts
3.9.2 Public policy and privilege
2.3.2 Judicial notice of law
Course Outline Continued…
Chapter Four: Oral Evidence 4.6. Examination of witness
4.1 Introduction 4.6.1 Examination-in-chief
4.2 Oral evidence: Definition 4.6.2 Cross examination
4.3 Importance of Oral Evidence 4.6.3 Re-examination
4.4 Na t u r e a n d De v e l opm e n t of O r a l 4.7 Hearsay evidence
Evidence in Different Legal Systems 4.7.1 Definition of hearsay
4 .4.1 The Tradit ional Et hiopian Oral 4.7.2 Justif ication for exclusion of hearsay
Litigation statements
4.5 Competence of witnesses 4.7.3 Exception to hearsay evidence
4.5.1 Grounds of incompetence 4.8 Exclusionary rule: Privileges
4.5.1.1 Mental incapacity 4.8.1 Policies underlying privileges
4.5.1.2 Physical incapacity 4.8.2 Types of privileges
4.5.1.3 Legal interdiction (Conviction of a 4.8.2.1 the right against self-incrimination
crime) 4.8.2.2 Governmental privileges
4.5.1.4 Interest in the outcome of the 4.8.2.3 Professional confidentiality
case as ground of incompetence 4.8.2.4 Other privileges
Course Outline Continued…

Chapter Five: Real Evidence 6.3. P rot e ct ing, Inv e st igat ion and
5.1 Demonstrative evidence Examination of Crime Scene
5.2. Documentary evidence 6.3.1. Documenting the Crime Scene
5.3. Authentication of Documentary 6.3.2. Videotaping the Crime Scene
Evidence 6.3.3. Photography the Crime Scene
5.3.1 Modes of authentication 6.3.4. Crime Scene Sketching
5.4. Best evidence rule 6 . 4 . C ol l e ct i on a n d P r e se r v a t i on of
Evidence
5.5. Proof of contents of documents
6.5. Fingerprints and DNA Evidence
Chapter Six: Forensic Science and 6.5.1. Meanings, Principles and Historical
Crime Investigation Developments of Fingerprint
6.1. The Meanings, Goals, and
6.5.2. Types and Individuality of
Historical Development of Forensic
Science Fingerprint
6.5.3. DNA and its Application in Justice
6.2. Sub-fields of Forensic Science
system
Course Outline Continued…

6.6. Blood and other Body Fluid

6.8.Investigation of Arson and
Evidences
6.6.1. Bl ood as a P hysi c al Explosive
Evidence 6 .9 . Medic o-leg al asp ec t s of
6.6.2. Species Identification Death and Toxicology
6.6.3. The Discovery of ABO Blood
Groups
Chapter Seven: Burden and
6.6.4. Paternity Degree of Proof
6 . 6 . 5 . S e m e n a s P hy si c a l 7.1. Burden of proof
Evidence
6 . 7 . B a l l i s t i c s a n d T ra c e 7.2. Standard of proof: General
Evidence
Chapter One: Evidence Law General Introduction
1.1. Introduction
• This chapter deals with the introductory or preliminary matters such as
 the definition,
 purpose and
 nature of evidence law
• Presents the common law and civil law approaches to evidence law with the various
types of evidences.
• shows the differences between two legal systems in their approach to evidence law.
• it discusses the evidence law in Ethiopia and the where about of evidence rules and
principles in Ethiopia in relation with the general rules of evidence.
• ref le cts the fundamental distinction between the operations of the rules of evidence in
the civil context from the criminal context.
• And f inally, tries to give a highlight on classif ication of evidence and who show evidence
can broadly be classified be it oral, documentary evidence or otherwise.
Ch. One Continued…
1.1 Meaning, Nature and purpose of Evidence law
1.1.1 Meaning of Evidence Law
• Before dealing with “evidence law”, it is important to discuss
about the concept of “evidence” in general since evidence and
law of evidence are two different things.
• So What do you think is an Evidence?
• The word “ evidence” is originated from a Latin term “evidentia”
which means to show clearly, to make clear to the sight to
discover clearly certain, to ascertain or to prove.
• Thus, evidence is something, which serves to demonstrate
(prove) or refute (disprove) the presence or non-existence of an
affirmed truth (alleged fact).
Ch. One Continued…
• The party who alleges the existence of a certain fact has to
prove its existence and the party, who denies it, has to disprove
its existence or prove its non-existence.
• However, all facts traditionally considered, as evidence may not
be evidence in the eyes of evidence law.
• Rather, evidence is something presented before the court for the
purpose of proving or disproving an issue under question.
• In other words, evidence is the means of satisfying the court of
the truth or untruth of disputed fact between the parties in their
pleadings.
Ch. One Continued…
• “a means whereby any alleged matter of fact, the truth of which
is submitted to investigation, is proved and includes statements
by accused persons, admission, Judicial notice, presumptions
of law, and observation by the court in its Judicial capacity”
(Draft Evidence Rule)
• However, even though the kinds of evidences enumerated under
Rule 3 of DER are not exhaustive, it failed to cite “documentary
evidence” which is considered as one of reliable evidences,
especially in civil cases, as one types of evidence. (poor drafting)
What do you think is evidence law?
• When we come to the meaning of evidence law, different writers
def ines it according to their own perceptions but with similar
messages. The difference is one def ines in amore elaborated
way while others do not.
Ch. One Continued…
• In short, the law of evidence in the major legal systems/ i.e., in
the common law, civil law or in countries that have a mixed legal
system) is the body of legal rules developed or enacted to govern:
• What facts need to be proved and produced to the court?
• Which of the parties have the burden of proof?
• The required standards of proof to win the case.
• The admissibility, creditability, and weight of evidence and
other procedural matters as to how the evidence shall be
produced before the court of law.
Ch. One Continued…
1.1.2 Nature of Evidence law
• What makes evidence law different from other areas of law (i.e. substantive law) ?
 The key distinction between the law of evidence and other areas of the law is that
evidence is not substantive. Thus, evidence law is procedural (or adjectival) in nature.
 Unlike the criminal law, tort law or the law of contracts (for example), it does not
create legal rights or duties.
 The existence of evidence law is dependent upon the existence of substantive law. If
there were no substantive areas of law; and there was no possibility of disputation
concerning the rights and duties created by these areas of law, it would be
futile/useless having a law of evidence.
• What are the natures of evidence law?

a) Evidence law is adjective law together with procedural law, not

substantive
Ch. One Continued…
• Adjective laws are concerned with the method of presenting cases
to court proving them or generally enforcing the rights and duties
provided under the substantive laws.
• While substantive laws, are those that defines rights and duties.
• adjective law is just as important as the substantive law. Why?
• Because the rights, privileges and duties that exist under substantive law
will mean nothing unless they can be enforced through adjective laws.
• E.g. the law on the civil code Vs. civil procedure code
• Of course some scholars suggested that there will not be any
problem if we incorporate rules of evidence as one part of
procedural law since they have similar purpose.
Ch. One Continued…
• However, the agreement has been reached in classifying law of
evidence as one part of adjective law for the sake of establishing
more effective system of adjudication of cases before the court
of law.
• Although one can see grains/particles of evidence law in
procedural laws, their main dealing is with how pleadings can be
framed, investigation conducted, evidence collected etc…
e.g. see the CPC and CRPC.. how to examine witnesses, how and when to
bring documentary evidence…
• This does not necessarily make the law of evidence to be part
of procedural law.
Ch. One Continued…
• There are certain issues procedural laws never address and are left
to evidence law.
• For instance, in the procedural law you did not study about the standard of
proof, facts to be proved or need not be proved and the value to be given to
each term of evidence etc.
• These are left to evidence law therefore evidence law is not strictly
speaking procedural law, but shares the commonality with procedural
laws in the sense that both are means to the enforcement of the
substantive law.
• Thus, evidence law suitably falls with in the general category of
Adjective laws, which deal with the enforcement of the substantive law.
 Ch. One Continued…
• However this does not mean that all nations have their own code
of evidence, which can be considered as one sect of Adjective
law.
• For instance, as you see later our country Ethiopia does not have
evidence code that when you are asked to show.
• The truth is that our rules of evidence are not put together in a
code or proclamation, but are found widely scattered in both
substantive and procedural law. You may remember articles on
proof of marriage, proof of will, proof of contract, proof of
ownership and a lot of legal presumptions that relate to evidence.
• In this case, the problem that you would face is whether law of
evidence is part of procedural or substantive law?
Ch. One Continued…
b) law of evidence is more of practical
• Law of evidence has more of the smell of the courtroom than most law
school classes and it offers the opportunity for some court- room type
exercises.

• We say it more of practical because the process of proof involves many

participants, and it is impossible to regulate each and every action of those
participants by the law of evidence unless we interpret the rules in line with
purpose of the law of evidence in general and the rational behind of the
specific rule in particular.
Ch. One Continued…

• One can understand more about the rules of evidence that he

knows theoretically when he becomes a practitioner.
• For instance, it is the duty of the trial judge to ensure the
defendant receives a fair trial. He can for example, limit the nature
of questioning in cross-examination. And also he may exercise his
discretion to exclude evidence if the prejudicial effect of which
exceeds its probative value. Thus, the application of judge's
discretion to secure the right to a fair trial may differ case to case
bases.
Ch. One Continued…
• Moreover, the rule of evidence are not applied independently from other
factors and do not exist solely as a matter of academic interest and debate.
• They are a dynamic set of principles which interact with other essential
factors in a case including the rule of substantive law, the rule of procedure
and the substantive characteristics of many of the participants in the trial.
• Rule of evidence includes the judge's opinions and perception, the skill of
the advocates, a party's or witness's demeanor/conduct in court, his
credibility, criminal convictions and personality traits. All of these factors
ultimately come together to provide the bases for the court's decision in the
case.
Ch. One Continued…

• Therefore, that is why we have said that the course will not try to
teach you what you can better learn in practice or in clinical
program.

• Rather, if you participate in a clinical program after your

completion of this course you will probably report to your friends
that you “learned more about evidence in two weeks in the clinic
than in a whole semester in class”.
Ch. One Continued…

Questions
1. Do we have a codif ie d evidence law? Which
one is better: having a codified law of evidence or
scattered one (here and there)?
2. Discuss the relationship between procedural
laws and evidence law?
READING ASSIGNMENT

Is there a consensus on the importance of evidence law in regulating
the questions of relevancy? Please describe the two approaches with
regard to this issue.

Ch. One Continued…
1.1.3 Purpose /significance of Evidence law
• What do you think is the purpose of evidence law?
a ) Ena ble to a chieve Accelera ted, Fa ir a nd
Economic Justice
• Evidence is the “Key” which a court needs to
render a decision. Without evidence there can be
no proof.
Ch. One Continued…
• Evidence provides the court with information. Proving facts
through the presentation of evidence means convincing court to
accept a particular version of events.
• Of course, one can search truth even trough violating the
constitutional rights of the parties. However, evidences obtained
through unlawful means could not contribute for the maintenance
of justice in the future.
• So the process of proof should be regulated by evidentiary rules
and principles in order to achieve accelerated, fair and economic
Justice.
Ch. One Continued…

b) Important to regulate the process of proof

• The rule of civil and criminal evidence, in conjunction with the

rules of procedure, establish the frame work for the process of
proof and the conduct of litigation, so that a lawyer advising his
client or preparing his case for trial or presenting it to the court or
tribunal will know what issues his client must prove in order to
succeed.
Ch. One Continued…
c) Keeps the moral dimension of the wider public
• The law of evidence also has a moral purpose by establishing and regulating the rules
relating to the process of proof in proceedings in courts and tribunals.
• Whilst/though this moral dimension is important in civil proceedings, it has special
currency in criminal cases as it ref lects the powerful public interest in bringing the
guilty to justice, whilst allowing the innocent to go free.

• Do you think rules of evidence prevent the truth from being

discovered in the wider public interest?
• In some cases the rules of evidence may actually prevent the truth from being
discovered in the wider public interest.
Ch. One Continued…

d) Law of evidence protect the accused's right to a fair trial

• In criminal cases, law of evidence stands to protect the
accused's right to a fair trial for instance, by containing many
rules which excludes potentially relevant evidences like the
general rule that evidence of the defendant's character and
previous convictions will not be admitted at trial
• (see art. 20(3) of the FDRE constitution, art. 11(1) of the UN
Human Rights Declaration, Art 138 of CRPC and Rule-145 of
DER).
Ch. One Continued…

• This principle is much related to the principle of

presumption of innocence.
• The principle provides that any evidence which create a
risk of bias against the accused should be precluded.
• This is because the evidence may lead the fact finder to
the wrong conclusion as to the guilty of the accused.
Ch. One Continued…

• Even though there is a consensus on the signif icance

of evidence law in shaping the process of proof, there is
a dispute on the question whether the law of evidence
shall determine which evidence should be produced and
which are not i.e. on question of relevancy. Regarding
this issue there are two approaches.
Ch. One Continued…

First Approach

• According to eminent legal thinkers like Jermy Bentham and

William Twining the over all aim of the process of adjudication is
the ''rectitude/truth/ of decision making''. This is achieved by the
correct application of substantive law to the true facts in the
particular case. In this way; the aims of justice are served.
Ch. One Continued…

• Bentham long espoused/adopted a utilitarian /the only/ theory that the

best way to arrive at the truth was through an application of “free proof”. It
was his considered opinion that a judge could be trusted to reach a
factually correct verdict provided all relevant evidence was adduced.
• In his view, too many rules of evidence and procedure lead to the
exclusion of too much relevant evidence, there by diminishing the search
for a factually correct truth. Thus, he advocated abolition of all laws
operating to exclude evidence.
• Recognizing the need for some restrictions, Bentham felt laws of evidence
were needed only to the extent of preventing ' vexation/annoyance/,
expense or delay' and not to hamper the judge from finding out the truth of
matters by using different tactics and approaches.
Ch. One Continued…

Second Approach
• the supporters of the second approach argued that it would
obviously be undesirable/objectionable and chaotic/disorder if
a judge had unlimited discretion as to which evidence should be
admitted in a case, and as such, there is clearly a need for there
to be ground rules for the admission of evidence so that
common standards are applied between all courts and tribunals
dealing with the same type of case.
Ch. One Continued…

• Otherwise, the judges may loss their golden time which in return
contributes for delay of justice.
• Therefore, they argued that, in order to give timely and effective
justice the role of evidence rules which regulates the question
of relevancy is unquestionable.
• However, this does not mean that the judges have no any
discretion.
• In some instances the rule provides for the mandatory exclusion of
evidence. In other instances discretion is given to the judge to exclude
relevant evidence in circumstances were fairness demands it.
Ch. One Continued…

• Which approach is best for you?

Ch. One Continued…

• Because, rules relating to admissibility and use of evidence are

directed towards minimizing the risk of wrongful convictions. And
the main risks of error stem largely from the admission of
unreliable or prejudicial/hurtful evidence.

• Thus the concept of free proof may allow the court to admit
unreliable or prejudicial evidence, which lead it to a hasty
conclusion.
Ch. One Continued…

• The concept of free-proof also ignores the fundamental importance of

procedural rights and the symbolic importance of trials.
• Verdicts of the court to have amoral legitimacy, trials must uphold basic
human and constitutional rights. And Justice must not only be done but be
seen to be done.
• That is why most trials are held in public. That means the public must have
a faith in its criminal Justice system and the verdicts that are delivered by it
and this can only be the case if the trial is perceived to be a fair one. And
respect for procedural rights through evidence law is a key component of the
right to a fair trial.
Ch. One Continued…

Activity
1. Discuss the advantages and disadvantages of the existence of court's
discretionary power in determining the relevancy of evidences?
2. Is the right to a fair trial necessarily in conf li ct with the aim of reaching a
factually correct verdict?
3. The purpose of evidence law is regulating the process of proof and making
the search of truth to be completed with in a short period of time and with a
little cost of litigation. However, the rule which gives privileges to the
spouses not to testify against each other is against this purpose”. Do you
agree in the above statement? Why/why not?
Ch. One Continued…

1.2 Development of Evidence law

• Is the need for evidence recent development?

• No, it is not. It is possible to imagine that the need for evidence can be
traced back to a time when people started to settle disputes before third
parties.

• You can imagine how people settle disputes before elders of a certain
locality.
Ch. One Continued…

• The need for evidence was well known by ancient Greeks ,

Egyptians, Hebrew, Hindu, Rome and Mesopotamians.

• Different concepts of evidence law such as relevancy of

evidence, the duty to come up with evidence, proof by witnesses
were practiced since ancient time even though they were not in
such organized and comprehensive manner.
Ch. One Continued…

• The present rules and principles of evidences are the outcome of the
successive development, conducted in different stages of human
civilization.
• In its very/early stage of progression, there was no any distinction on
the rules of civil and criminal evidence. Moreover, the means they use
to prove a disputed fact may not be well founded to ensure the rational
basis of decision making.
• In other words, the evidences which were applicable at that ancient
time were irrational.
Ch. One Continued…

Generally, we can classify the ancient means of proof in different ways:

i) Proof by ordeals/sufferings/tests (በሚያሰቃይ ፈተና መለየት)

• Ordeal is about subjecting somebody to undergo a painful experience
like walking on f ire, holding glowing with heat, put hands in to boiling
water etc…
• In different parts of the world ordeals were used to identify the person
who did wrong.
• The idea is that where a person who underwent the ordeals is not
seriously affected like when the wound that resulted from the ordeal
normally cures, it is taken as a proof of innocence. If it, however, gets
infection this is taken as proof of guilt.
Ch. One Continued…

ii) Proof by Battle

• Here, the victim and the accused required to f ight to each other.
And if the victim wins the accused, the accused will be
considered as criminal and convicted. While if the accused wins
the victim, the accused will be free.
Ch. One Continued…
iii) Proof by forcing to Swallow dry Bread
• The defendant forced to swallow a dry bread. If he can’t he is
considered as guilt. If he can swallow it, he is considered to be
innocent.
• They consider the one who can’t swallow the bread as guilt
because he can’t swallow because his mouth get dry and unable
to swallow it.
Ch. One Continued…

iv. Proof by oath

• As we go back in history, the inf lu ence of religion is so
strong that it is hardly possible to exclude religious notions
• Since proof by ordeal were extremely irrational and in human, relatively
modern and human means of proof began to replace them immediately
after 15 c. This was proof by oath in which the accused/ defendant lad
th

required to take an oath before his testimony in his own case.

Ch. One Continued…

• As a result, this ancient means of proof had practiced for the

past many years by using the psychological impacts of religious
belief on the society.
• As we known where religious beliefs are predominant, oath
taking plays a great role to prove or disprove the alleged fact.
However, this testimony of the accused/defendant under oath
was not sufficient alone.
• In addition to it, the court required the testimony of supporting
witnesses (compurgators) for the purpose of conf ir ming
whether the words of the suspect under oath are true or not.
Ch. One Continued…

• However, such compurgators were not required to testify on the merit of

the fact rather their testimony was limited in conf irming to the court of
law about the truthful nesses of the oath given by the suspect. So we
can understand that how long the ancient proof by oath differs from the
present one.
• Gradually, the above ancient ways of proof had begun to replace by the
new and modern concepts of evidence rules. The writing of different
scholars, judicial decisions and different laws enacted at different times
based on different legal traditions becomes instrumental for the then
development of rules and principles of evidence.
Ch. One Continued…
• In a traditional highland Ethiopia that is in previous times,
different methods of proof were applied to ascertain the
commission of an act by a suspect.
• Firstly, the “laeba shai” method was applied to solicit admission
from a suspect in the time when it becomes difficult to get
witnesses.
• In this method of proof, a person was made to drink some
herbal solution that would intoxicate him and he was left to run
amuck and whoever is implicated by this person would be
considered as the criminal.
Ch. One Continued…
• Later, this “ Leba shai” system becomes replaced by the
institution called “ Afersata” or “ awchachign”. This method
involves the participation of the whole community.
• This seems that since the crime is against the community
themselves, the member of the society may detect the crime
and the criminal in secret manner, for instance by indicating the
name of the criminal through poem.
For example:
ሌባው ለማ
ቢተው ይተው
ጀንበር በወጣ ቁጥር ስንሰረቅ አንኖርም
Ch. One Continued…

• However, the methods of proving in “Afersata” and “Leba shai”

have their own basic deficiencies. Because,
• in the f irst place, the suspects do not have a chance to challenge the
reliability or the truthfulness of the evidence in the case of “ Leba shai”.
• and also, in the case of “ Afersata”, assume how bad it may be if in every
case the whole people aced/asked to be gathered which may hinder the
people from doing their day to day activities.
Ch. One Continued…

Activity
1. Do you think the testimony given under oath is always true?
Why?
2. Why proof by ordeals is considered as irrational means of proof?
Ch. One Continued…

1.3 Evidence in Civil and Common Law Legal System

• There are two major legal systems (legal traditions) in the world.
(1) The Anglo - American (or the common law legal system)
(2) The continental or the civil law legal system.
 Chapter Two
2. Facts, which may be proved other than by evidence
Introduction
• The general rule in both civil and criminal proceedings is that where a party has the legal
and evidentiary burden of proof on a fact in issue, the fact has to be proven by relevant and
admissible evidence.
• However, certain allegation of fact by a party does not necessarily need proof.
• There are three exceptions to the general rule requiring evidence to be adduced to
discharge a legal or evidential burden where the court may treat a fact as proven with out
the need for the party bearing the legal and evidential burdens to put evidence before the
court in respect of that fact.
Ch. Two Continued…
• The f irst exception applies where a party admits a fact by making a formal admission
either before the trial or at the trial. The second exception applies where the proof of
the fact in issue may be presumed by the court from an inference drawn from one or
more primary facts. (e.g. a baby born in a marriage, property in a marriage) And the third
exception to the general rule is dealt under the doctrine of judicial notice. Judicial
notice covers those facts that are so well known and notorious that it is not necessary
for a party to prove that fact formally to the court. (sun rise from east and sun set in
west, boundary of a country)
• Therefore, generally, this unit will discuss the factual allegations which need no proof.
• Our discussion will be based on legal provisions that are available in our substantive,
procedural, and the draft evidence rule of 1967.
Ch. Two Continued…
2.1. Admitted Facts
• What is admission?
• it is a statement of fact, which waives or disputes with the production of
evidence by conceding /accepting/ that the fact asserted by the opponent
is true. Because,
• what a person himself admits to be true may reasonably be presumed to be so, and
until the presumption is rebutted, the fact admitted has to be taken as evidence.
• in the normal course of things, a person does not make himself liable by admitting
facts against him self unless those allegations are true, and he is expected to know
facts relating to him better than any body else. That is why Rule 3 of DER and Art
2002 of civil code considered party's admission as one kind of evidence.
Ch. Two Continued…
• Do you think the term “admission” is applicable in both civil and
criminal cases?
• In some countries the term “admission” is only used in civil
cases and “confession” in criminal cases. While others used the
term” admission” in both civil and criminal cases. But we can take
“confession” as a species of “admission” which is applicable only
in criminal cases.
Ch. Two Continued…

Q. What is the position of Ethiopian laws in using the terms?

• As can be witnessed from the DER, the def inition of confession
is not given unlike that of admission.
• Thus, if we say the term admission is used only in civil cases we
are saying that a statement of fact which waives the production
of evidence can be made only in civil cases.
• But this is not true for instance, Art 134 (1) of CRPC used the
term “admission” in criminal cases by saying “when the accused
admits without reservation …''.
Ch. Two Continued…
• More over, Art 19(5) of the FDRE constitution used the term
“admission” interchangeably with the term “confession” in
criminal cases by saying “persons arrested shall not be
compelled to make confession or admission…”
• Thus, we can say that our laws used the term “admission” in
both civil and criminal cases even though the Amharic version of
these provisions used the term “ የእምነት ቃል” in criminal cases and
the term “ ማመን” in civil cases.
• But we cannot get such provision, which used the term
“confession” in civil cases.
Ch. Two Continued…

• Any way one can make a def inition of the term “confession” by
making a comparison between civil and criminal cases.

• So simply confession can be def ined as an admission made at

any time by the person charged with a crime stating the inference
that he committed the crime, or it is acknowledge of guilt.
• Why admitted facts need no proof?
Ch. Two Continued…

• Courts are set up to try issues in dispute. When no dispute

exists, proof ordinary should not be required.
• Thus, where a party admits the truth of a fact in issue in the
case, the fact ceases to be in dispute between the parties, and as
such, any evidence to prove the fact will be ruled as inadmissible
on the ground that it is irrelevant except in some serious criminal
cases like a homicide case as did in practice.
• Because in the normal course of things, a person does not make
himself liable by admitting facts against him self unless those
allegations are true, and he is expected to know facts relating to
him better than any body else.
Ch. Two Continued…

• But if proof is required for such admitted facts, undue delay will
be created since other cases await the court's attention.
• And undue delay causes injustice to others as well as the
parties before the court.
• That is why Art 242 of CVPC and Art 134 of CRPC required the
court to pass judgment on the admitted facts provided that the
court may, in its discretion, require the facts admitted to be
proved otherwise than by such admissions as provided under
Art 235(2) of CVPC and Art 134(2) of CRPC.
Ch. Two Continued…

2.1.1 Limitations of Admissions

• In some cases ''Admitted facts need not be proved” is less
applicable. This is especially true in criminal cases in which the
court may exclude confessions on the grounds of oppression,
unfairness and the like.
• Confessions or self-incriminatory statements have to be tested
against the presumption of innocence under the constitution. (Art
20(3) of the constitution).
Ch. Two Continued…

• Confessions must be accepted or rejected as a whole and that

the court is not competent to accept only the inculpatory part
(any evidence favorable to the prosecution) while rejecting the
exculpatory part (any evidence that is favorable to the defendant
in a criminal trial) as being inherently incredible. Art 134 of CRPC
requires that plea of guilt has to be without reservation.
Ch. Two Continued…

• However, even though the confessions are made without

reservation, the court may reject them if it is satisf ied from other
circumstances that they are untrue. (See Art 134(2), 135 of
CRPC).

• So we can say that confession does not avoid the need for
proof and this makes confession a very weak kind of evidence.
Ch. Two Continued…

• However, the effect of admission is in most cases destructive in

civil cases since they can not be contradicted once they are made
and the court may not require further proof because of the less
standard of proof required in civil cases.

• However, if the admission is vague or doubtful or unlawful or

immoral, the court may require proof even in civil cases.
Ch. Two Continued…

Q. Does confession made by one of the co-offenders (conspirator)

admissible against the other co-offenders?
• In the time when one of the co-offenders made a confession
af f e c ti ng hi m and so m e o the r p e rso ns i nv o l v e d i n the
commission of an offence, the effect of confession shall be
limited only on such person who made it.
• As far as the DER is concerned, Rule 27 provides “A confession
made by one person affecting himself and some other person in
the commission of an offence is not admissible”.
Ch. Two Continued…

• And this is a widely accepted principle regarding the limitation

of admissions. Because,

A. any suspect enjoys a right to silence at a police station. And he

shall be informed that he has the right not to answer and that any
statement he may make in his free will may be used in evidence
before the court of law. (see Art 27(2) of CRPC and Art 19(2) of
the constitution).
Ch. Two Continued…

• There fore, the incriminating statements made by one of the co-

offenders, shall not be admissible on those co-offenders who do
not get the opportunity to exercise the above mentioned
constitutional rights.

• Moreover, admitting the confessions made by one of the co-

offenders on the others will have an adverse effect on the
fairness of the proceedings.
Ch. Two Continued…

B. Secondly, the public prosecutor cannot call one of the co- offenders
as a witness against the others in the same trial. This is because the
accused may make incriminating statements against the other to
make himself free and made no oath or cross examination. But if we
allow him, we are contravening the constitutional right of other
conspirators to be presumed as innocence before conviction.
• However, the public prosecutor can call the accused who choose to
incriminate himself and others as a witness against the others by
providing him separate trial.
Ch. Two Continued…

Q. What about in civil cases involving indispensable parties?

• As you hav e learned in your civ il procedure course,

indispensable party is a party who ought to have been joined as
plaintiff or defendant. Or whose presence is necessary for the
determination of all the questions involved in the suit (see Art
40(2) of CPC).
Ch. Two Continued…

• The question of indispensable, for instance, may arise in the

case when a thing which is owned by two or more persons jointly,
is subject of a dispute.
• For example, assume 'A' and 'B” are the joint owner of car. And
their car caused an injury on 'C” for which 'c' instituted a suit
against the joint owners (A and B). At trial “A” admitted the
allegation of the plaintiff while “B” denied it. Now the question is
may the court consider the admission of “A” as B‘s admission?
Ch. Two Continued…
• If A and B were a joint plaintiffs they shall exercise their rights of
recovery concurrently in proportion to their share in the thing jointly
owned where one of them waive their right of recovery, such right may be
fully exercised by the other joint owners. (see Art 1388 of civil code).
• While in the case when the joint owner defendants appeared in the f irst
hearing in which one admits and the other deny the plaintiff's allegation,
Art 43 of CPC shall apply by analogy in which the plaintiff can claim from
any one of the defendant most probably from the defendant who
admitted the allegation. (see Art 43(4) of CPC).
Ch. Two Continued…

• This means in our case the litigation may continue between “A”
and “B” on the question of contribution. Because “B” may deny his
obligation to contribute “A” after the admitted party “A” pays the full
amount of compensation to the victim.
• Thus, the court shall not take the admission made by one
indispensable party against the other unless one authorized the
other to appear and defend the case in accordance with Art 69 of
CPC in which case we consider the admission made by the party in
the trial as if made by the other.
Ch. Two Continued…

• But in other cases ,the plaintiff can claim the full amount from
the indispensable party who admitted his allegation, and the
litigation shall be continue on the question of contribution
between those indispensable parties.
Ch. Two Continued…
2.1.2 Ways of Obtaining/classification of Admission)
• Admission may exist in the form of formal admission and informal
admissions in both civil and criminal cases.
a. Formal admission
• A party may formally admit a fact in the pleadings in the case, i.e. in
statement of claim or in defense or in a counter claim or in reply. He may
also admit in open court in the first hearing or at the trial.
Ch. Two Continued…

• Moreover, in criminal cases a formal admission may be made to a person

in authority i.e. to the police of ficer in answers to interrogations. (Art 270 of
CRPC). These all are considered as formal admissions.
b. Informal admission
• an informal admission is a written or an oral statement made by a party or
by a person connected with the party that is adverse to that party's
interests, and is most commonly made in a letter, fax or an e mail. An
informal admission may also be made orally in a witness's answer to a
question asked in cross-examination.
Ch. Two Continued…
• It also be made spontaneously /suddenly/ by a person in response to the
events given rise to the cause of action.
• For example, a driver may admit his responsibility for causing a road traffic
accident by stating that “It was my entire fault, I didn't see the other vehicle
coming. The next thing I knew his vehicle hit me.”
• Mostly, informal admissions are out-of-court admissions to a person who
are not authorized to accept admissions, for example, to a friend.
• Where an informal admission has been made, it may be disproved or
explained (corroborated) by other evidence at the trial and it is at the court's
discretion to decide how much weight should be attached to the statement.
Ch. Two Continued…

• However, there is a consensus that lesser weight shall be

attached to the out of court admissions given to an authorized
person unless they are corroborated by other evidences.

• A n d s u c h a n ou t -of c ou r t a s s er t i on p ot en t i a l l y c a n b e
undercut/challenged/ if the party opponent is able to show that he
was joking or lying when he gave such assertion, or the other
party's witness misperceived him or using words in an unorthodox
manner.
Ch. Two Continued…

Activity
• Ato 'A' is the owner of a factory, which produces specif ic goods. He
sells his products, generally for cash, out of his factory. On an
application for a bank loan, he stated that he had earned 70,000 birr
from his business in the previous year. On his tax return, however, he
indicated 15,000 net earning from his business. Ato “A” is now on trial
for tax evasion. The prosecution wants to introduce the bank
application. Is the bank application admissible as a party admission?
• May be admissible but should be corroborated with other evidences.
Ch. Two Continued…

2.1.3 Types of Admissions: Judicial and Extra- Judicial

Q. What kinds of admissions are there?

• Beyond the existence of admissions in the form of formal and

informal, facts admitted may be of two types. These are judicial
admissions and extra- Judicial admissions.
Ch. Two Continued…

a. Judicial admissions

• are those admissions made as part of the proceeding in the lawsuit.

• The mere fact that the admission is made before the court of law does not
make it a judicial admission.
• To be considered as judicial admission, it should be given before the court,
which handled the case, and not in other courts as the case in Art 35 of
CRPC.
• They are ordinary conclusive on the party making them and may not be
contradicted.
Ch. Two Continued…

For example , the defendant may admit in his pleading that he has entered in to a
contract of loan with plaintiff as alleged by the plaintiff. This is a judicial admission,
which cannot be withdrawn afterward.

b. Extra- Judicial admissions

• as opposed to judicial admission are not made in the course of court
proceedings even though in criminal matters they may have been
made in the course of the criminal proceedings. You may think of
confession made before the investigative police.(see Art 27 of CRPC)
Ch. Two Continued…

• Evidentiary admissions may be submitted as evidence but they

are not conclusive as judicial admissions and they may be
contradicted.

• There for, some argue that, when we take about admissions as

facts, which need not be proved we do not refer to all admissions
but to judicial admissions .
Ch. Two Continued…

2.1.3.1 Judicial Admissions Civil and Criminal Cases

A. Civil Cases
• In civil cases, judicial admissions have the power to withdraw a
fact from being in issue and avoid the need for proof.

• The effect of judicial admission is destructive in civil case.

• The reason is, for one thing, they cannot be contradicted once they
are made, and for the other the court may not require further proof
because of less standard of proof required in civil cases.
Ch. Two Continued…

• Judicial admissions may be made through different ways. Now, we will

discuss ways of making judicial admissions in civil cases.
a. Facts expressly admitted in parties pleadings (Art 83,242 CPC)
• A par ty may formally admit a fact in the pleadings in the case, i.e. in
statement of claim or in defense or in a counter claim or in reply.
• For example, in an action for breach of contract, the claimant may plead in
his statement of case the existence of an oral contract. Thus, once the
plaintiff admits the existence of the oral contract, he can not later produce a
written contract.


Ch. Two Continued…

• On the other hand, the defendant, in his defense, may admit the existence
of the contract but deny that the contract has been breached.

• At the trial, the claimant is relieved of discharging burdens of proving the

existence of the contract as the defendant has formally admitted the fact.

• The parties will there fore be free to deal with the issue of the breach as
this fact remains in dispute between them.
Ch. Two Continued…

b. Facts admitted by implication (Art 83,235 CPC)

• Under the rule of procedure, admission is not only the one expressly
made by the parties. Denial which is general may be considered as
admission by the rule of procedure. (Art 83 CPC).
• For instance, if the defendant replies in his statement of defense as “I
am not liable for the loan contract”, it is deemed as admission.
• Because the defense does not contain facts showing either the non-
existence of the contract between them, or the fact showing that he
had borrowed the money but he returned back it to the claimant.
Ch. Two Continued…

• Moreover, failure to deal specif ically with an allegation of fact in the statement of
claim by the statement of defense is an admission of the truth of the fact alleged.
• For example , the statement of claim reads “The defendant (the driver) was
intoxicated during the car accident”. While the defendant did not made any
comments up on this particular allegation of the statement of claim. Thus, the fact
that “the defendant was intoxicated during the car accident” is admitted and proof
there on need not be submitted by the defendant. Here there is no formal
concession/concern to the fact in issue but the law of procedure deems it to be
admitted.
• See art. 235 of CPC
Ch. Two Continued…

• As we understand form the words of Art 235(2) evasion should

not be considered as admission regarding person under
“disability”.

Q. Why Ar t 235(2) make the dis abled pers ons an

exception?
 Under the civil code minor's, insane persons, judicially
interdicted persons are considered as disabled persons
 The law wants to protect those disabled persons due to their
mental illness or immaturity. Thus, it is logical not to take their
Ch. Two Continued…

• However, under Art 34 of CPC, a person under disability may sue or

be sued through his legal representative and this legal representative
is presumed sane and aged person whether he is represented by the
disabled person himself or by the cour t in accordance with the
relevant provisions of the civil code. (see Art 34(a) of CPC).
• So when the Ar ticle says'' … except as against a person under
disability ”, is it saying that only the disabled person who is not
represented by legal representative or includes the represented
disabled person too?
Ch. Two Continued…

• Under art. 196 of CC since capacity is presumed the plaintiff is

not obliged to prove the capacity of the defendant. Thus, those
disabled persons may be sued without being represented. But
the court may be aware later about the fact of the incapacity of
the defendant.
• In such case, if the disabled defendant failed to deny the
allegations specif ic ally, the court shall not take his failure
(silence) as admission under Art 235(2).
• Rather at the time when the court aware about the fact of the
defendant's disability, it shall order the proceedings to be stayed
until a legal representative is appointed ( see Art 34(2) CPC).
Ch. Two Continued…

Q. Do you think the court may use its discretion and require any fact so
specifically admitted to be proved?
• Art 235(2) of CPC and the last sentence of Rule 50 of DER give the
discretionary power to the court in requiring the admitted facts to be
proved by evidences.
• In civil proceedings especially of out of court admissions, the court may
require the admitted fact to be proved since in one hand they are not
conclusive, and on the other hand they can be contradicted at a later time.
Ch. Two Continued…

• If the court has any doubt about the truth or clarity of an admission it
should require proof of the admitted fact by the party who relies upon
it. But this is usually true in criminal cases in which the accused may
admit for various reasons, than in civil proceedings.
• Thus, discretion power of the court shall be applicable for those
kinds of judicial admissions obtained through evasive denial. (Art
235(2) CVPC). And unless the admission is doubtful or vague, the
court should not require such specif ically admitted facts to be proved.
(see Art 83 of CVPC).
Ch. Two Continued…

c. Admission during Pre-trial hearings and at the trial

• A formal admission may be made by a party or his pleader during
examination of f irst hearing pursuant to Art 241 and 242 of CPC
code or at a later time when called up on by the court to indicate
whether he admits a fact or not (see Art 243 of CPC).
• Under Art 242 of CPC, if the defendant has made admission of
fact during the examination held under Art 241, the plaintiff may
apply to the court for such Judgment or order as he may be
entitled to up on such admission.
Ch. Two Continued…

• However, this does not mean that the court can not pass
judgment with out the application of the plaintiff thereof.
• For instance; assume the defendant denied the fact that he had
borrowed 10,000 birr from the plaintiff. But later when the court
asks the defendant, as to the amount of money that the plaintiff
lend to him, he may admit that he have borrowed 8000 birr from
the claimant. Here, even though the defendant denied his
liability totally in his pleading, he admitted partially later during
examination. Thus, in such a case the court is required to give
judgment on such admission (Art 242 of CPC).
Ch. Two Continued…

• Moreover, admission may be made by the party or his advocate during

the trial. For instance, in application to amend in order to set up anew
cause of action, counsel for the claimant made a number of admission at
trial, the effect of which was to abandon the original claim.
• In accordance with the common law countries like England, it may also
possible to make a formal admission by default where a party fails to
deal with one of the other party's allegation. In this situation, under the
normal rules of witness testimony, where a party in cross examination
fails to challenge the other side's witness's evidence on a particular fact,
the court will deem the cross examining party to admit that fact.
Ch. Two Continued…

Q. Do you think this is true in our case?

• In criminal proceeding Art 140 of CRPC provides “failure to cross-
examine on a particular point does not constitute an admission of the
truth of the point by the opposite party”.
• But we can not get such kinds of provision in our civil procedure code.
However, since cross-examination stage is optional which is based on
the wishes of the parties, the case shall be true in civil cases too.
• Most of the litigant parties do not know how to challenge the other
side's whiteness's through cross- examination.
Ch. Two Continued…
• As a result, they prefer to jump their chance of cross-examining
the other side's whiteness's evidence. Thus in such situation
considering the failure of the party to cross examine as
admission seems unfair. Rather the court shall determine the
truth of the fact based on the evidence produced by the parties.
Q. May a party deny a certain fact in f irst hearing of which he has
admitted previously in his pleading?
• As we can understand form Art 241(1) (especially of the
Amharic Version) the court shall ask the party or his pleader
whether he admits or denies such allegation of fact as are made
in the statement of the other party and as are not expressly or by
necessary implication admitted or denied by the party against
whom they are made.
Ch. Two Continued…
• (In Amharic “የካደውን ነገር ያምን ወይም ይክድ እንደሆነ ይጠይቀዋል”)
• From this we can understand that he can admit what he has denied in
his pleading, unless the court allow him to amend his pleading under
Art 91 of CPC. Because admission made in pleading is conclusive
and one can not withdraw later except with the permission of the
court.
d. Facts admitted by a party who testifies before a commission
• Where a court can not exercise its power to take evidence and to
examine parties and their witnesses for any of the reasons stated in
Art 127 of cvpc, it may delegate its power to a commissioner. (a court
or a person) (see Art 122 of cvpc )
Ch. Two Continued…
• In accordance with Art 124(2) of cvpc the commissioner (either a court
or a person) may examine the parties themselves and may receive their
admissions which are considered as judicial admission. And based on
such admission the court shall pass judgment under Art 242 of cvpc.
• However, as said earlier, judicial admissions are admissions made
before the court which handled the case. While admissions made before
a commissioner is an out of court admissions. If a commissioner is a
person, he may examine the parties in their home or in any other place.
Ch. Two Continued…
• And also in the case when the commissioner is a court, the
admission given to such court is considered as extra- Judicial
admission since it is another court other than the court having
jurisdiction.
Q. Thus, the question may arise as to the reason why we
categorized admissions made before a commissioner as judicial
admission?
• Even though the admission is made outside of the court to a
commissioner it shall be considered as if made before the court
having jurisdiction. Because in one hand the court delegates its
power of examination to a commissioner and on the other hand,
the evidence taken under it shall form part of the record of the
suit. (see Art 128(2) of cvpc). Thus, the admission made before
a commissioner is conclusive as if Judicial admission
Ch. Two Continued…

e. Admission by testimony of the party on the stand or by statement of

his counsel
• Facts may also be admitted by a party when testifying as per Art 261 of
cvpc.
• As said earlier in civil cases, a party can be a competent witness in his
own case, in which he considered as any other witness for all practical
purposes.
• So, while testifying during his case either in chief or cross-examination,
he may admit facts.
Ch. Two Continued…

• When we say a party can be a competent witness in his own

case, we are saying that the party himself may wish to give
evidence on his own behalf or the other side may call him as a
witness.
• Moreover, in the case when the defendant stands as a witness
of the plaintiff by the request of the later, the claimant may
examine him in examination in chief.
• During examination for instance, the plaintiff may ask him as to
the time when he lend him such amount of money for which the
defendant replies “on Tir 7, 2000”.
• In such case the defendant admit the fact of the existence of
the loan contract through examination in chief.
Ch. Two Continued…

Q. May the court consider the default of the party to challenge the other
side's cross-examination as admission? (do we consider his silence as
admission?)
• As said earlier, cross- examination is a weapon used by the cross
examining party to discredit or impeach the testimonies made against him.
And it is considered as the stage in which the skills of advocacy have tested.
• Thus, if the advocate did well in cross-examining the other side's party, he
may increase his probabilities of being a winner even though failure to cross
-examine on a particular point does not constitute admission of the truth of
the opposite party since the stage of cross-examination is optional.
Ch. Two Continued…

• However, the cross-examined party on the other side should able

to challenge the cross- examining party. Otherwise, in civil cases,
his silence may be considered as admission of the fact in question.
f. Admission by agreement of the parties

• Facts may be admitted by a party in a written agreement made

before the hearing with the other party. This may be made even in
response to a formal request to admit.
Ch. Two Continued…

• Where a party wishes his opponent to admit a fact in issue without the
need to call evidence to prove the fact at trial, a party may serve “a
notice to admit facts” on the other side. Where the fact is admitted, the
opposing side is relieved of calling evidence in support of that fact at
the trial. This procedure is appropriate where the fact to be admitted is
uncontroversial or the party wishes to save expense by not having to
call a particular witness to give evidence to prove the fact.
• According to Art 252 of cvpc, the parties may agree as to the question
of fact or of law to be decided between them and they may state the
same in the form of an issue. In such case the fact what was previously
an issue may be admitted and the issue requiring trial may be narrowed.
Thus, such facts which are admitted under the agreement would appear
to be conclusive on which the court can pass judgment.
Ch. Two Continued…

B. In Criminal Cases
• Even though there is a slight different between civil and criminal
cases, the accused may admit the charge brought against him on
which he may be convicted. (see Art 134 of crpc)
• In criminal cases, Judicial admission refers to plea of guilty or not
guilty.
• After having read the whole charge to the accused, the court
asks the accused whether he pleads guilty or not. If he pleads
guilty without reservation the court may enter plea of guilty.
Ch. Two Continued…

• Where he admits but with reservation, the court will enter plea
of not guilty. Because, unlike civil cases, in criminal cases the
court can not split the facts and frame issues with respect to
those which are denied.

• Here, a plea of guilty is a judicial admission of each and every

elements of the offence charged.
Ch. Two Continued…

• Thus, some argue that the mere response of the accused i.e.
“yes I am guilty”, for the question of the court whether he pleads
guilty or not, should not be considered as admission.
• The statements of the accused to be considered as admission he has to
get the chance of responding each and every elements of the offence
charged.
• In other words the court shall ask him whether he pleads guilty or not of
each elements of the offence charged.
Ch. Two Continued…

• Thus, they argue that only the judicial admission given in such a way is
considered as conclusive evidence if it is made voluntarily and
intelligently.

• However sometimes especially in serious criminal case like

homicide case, the court may require the public prosecutor to
produce evidence despite that the fact is admitted.

• The reason for requiring further proof is:-

Ch. Two Continued…

• in one hand, the accused might have made the admission due to various
reasons like to cover another person or to make unknown a certain fact,
to be famous by his criminal act especially in the case which gets large
media coverage even though he is innocent.
• on the other hand, the very high standard of proof in criminal cases still
justif ie s further proof, because, in some cases the confession of the
accused alone may not have the capacity to prove the commission of a
crime beyond reasonable doubt.
Ch. Two Continued…

• However, it is important to notice that the procedure does not

say the court “shall” require further evidence but “may” which
means that if the plea of guilt convinces the court beyond
reasonable doubt the court may convict the accused.
• As a result, it is widely accepted that except in serious criminal
cases the judicial admission of the accused should be
considered as conclusive evidence.
• Even in some common law countries like U.S.A, there is a
system, which encourages the accused to admit a charge
brought against him. This procedure is known as “plea bargain”.
Ch. Two Continued…

• In this procedure if the accused admits the fact before the court,
in return the public prosecutor may apply to the court to
mitigate the punishment.
• This is just made as a reward for the accused's contribution in
saving a court's time.
• But some scholars disagree on the merits of such procedure.
Because it may encourage the criminal to commit a further
crime in believing that the procedure of “plea bargain” would
apply in his case.
Ch. Two Continued…

2.1.3.2. Extra- Judicial Admission: Civil and Criminal Case

• The second type of admission is evidentiary admission.
• This is an admission made outside of the court either orally or in a
written form.
• Although any thing a party previously said may be used against her, it
is not conclusive against her since it may be contradicted by the party
making them.
• For instance, a party can deny making the statement or she can try to
explain it a way- for example by contending that she was joking.
Ch. Two Continued…

• However, as said earlier admission is destructive in civil cases. Thus, the

evidentiary admissions may produce the effect of estoppel.
• Estoppel is a rule of civil action which prohibits a person, who by his statement or
conduct caused other person to act in away he would not have otherwise acted in
the absence of such statement or conduct, to deny his statement to justify of the
other person who acted up on such statement (see Rule 27and 90 of DER).
• Estoppel is based on the maxim “allegans contraria non est audiendus” (a person alleging
contradictory facts should not be heard).

• But any way, the discretion is given to the court as to how much weight shall be
attached to evidentiary admissions. If such an out of court admission is proved and
not contested in any way the court may well believe the fact admitted to be true.
Ch. Two Continued…

• In criminal cases, an extra-Judicial admission may be made

during police investigation (Art 27 of crpc) or at the preliminary
inquiry case (Art 35 of crpc).
• The primary purpose of detaining and interrogating a suspect at a
police station is to obtain information that is relevant to the crime
under investigation.
• Notwithstanding the fact that a suspect enjoys a right to silence
at the police station, the police hope that by persuading a suspect
to talk they can encourage him to make incriminating admissions
capable of being used in evidence against him.
Ch. Two Continued…

• As a result, the police may use force or coercion either physical or psychological.
Thus, we should have a safeguard which regulates the way in which a confession is
obtained and the way in which its admissibility is determined.
• Even though the confession made during police investigation may be adduced as
evidence before the court of law, they may be contradicted by the party making
them.
• In such case it is for the prosecutor to prove beyond reasonable doubt that the
confession was not obtained by oppression and it is not unreliable having regard to
things said or done. (Art 27 of crpc and art 19(5) of the constitution)
• The oppression may include torture, inhuman or degrading treatment, and the use
of threat of violence (whether or not amounting to torture).
Ch. Two Continued…

• Even in common law countries like England, the confession

made during police investigation may be excluded on the
ground of unfairness.
• This is the case when the suspect made his statements with out
informed of his right which they call “ Miranda warning ”(((c z
image on your phone))
• Miranda vs. State Arizona (1966), US Supreme Court, 5 th
Amendment Right against self incrimination, reversed and
remanded the case.
Ch. Two Continued…

• Reasons for seeking exclusion of confession evidence under this

situation may include
• denying access to a solicitor/lawyer,
• lying to the suspect or tricking him in some way,
• failing to record the interview properly,
• failing to inform the suspect as to his right to silence and
• failing to inform the fact that any statement he may make may be used in
evidence.
•
Ch. Two Continued…

Q1. May the court exclude the confession made under Art 27 of crpc due
to the mere fact that the suspect is not informed about his right before
investigation?
Q2. How can we determine whether a certain act of police against the
suspect is oppressive or not? Do you agree on the fact that oppression is
a question of degree i.e. what is oppressive as regards one individual may
not be oppressive to someone of a more phlegmatic disposition?
Q3. Is admission made before the courts other than the court having
Jurisdiction over the case, considered as evidentiary admissions?
Ch. Two Cont.

• In criminal cases, there is a difference on the admissibility of

confessions made before the trial court, and before other courts.
• But the confession made before other courts may be excluded if it is
contradicted by the accused person.
For instance, a confession made before first instant court under Art 35
of crpc seems to be conclusively admissible since it is made before
the court of law. But this is not true. Because the accused is required
to confess before Wereda court while he is in police custody.
Ch. Two Cont.…
• Thus, if the accused chooses he can at his trial contradict or
explain his statement at the preliminary inquiry.
• He could for instance, allege that he made the statement
because he was afraid of the police, because he was confused or
because he was paid to do so. (see Art 83(3) of crpc).
• However, on the other hands, a judicial admission may not be
contradicted if it is made voluntarily and intelligently.

Q. Is it possible for the court to convict the accused on the

strength of his extra -Judicial confession alone? Explain.
Ch. Two Cont.

2.2 Presumption
2.2.1 General introduction: basic fact and presumed fact
Q. What is presumption?
• Presumption is an inference made about one fact from which the
court is entitled to presume certain other facts without having
those facts directly prove by evidence.
• In this, the proof of one fact is taken as the proof of the other fact.
Where there is an issue before a court the one that has to be
proven is the disputed fact.
Ch. Two Cont.
• However, the proof of such fact may not be needed if a fact the proof of
which is equivalent to the proof of the disputed fact is proved.
• Here a party who wants to benefit from presumptions must go the half way
i.e. he must f irst prove the basic fact unless such fact is admitted by the
other party.

Example Assume “A” and “B” are husband and wife who actually lives
separately in consequence of an agreement conclude between them, during
which the child is conceived and born. Now the dispute arise between “A”
and “B” on the question of paternity.
Ch. Two Cont.
• Here a child born in wedlock is presumed to be the child of the
husband, because you expect sexual relations between the two
(see Art 126 of RFC).The fact that “B” is the father of the child is
presumed fact, and the fact that “A” and “B” are husband and
wife is a basic fact.
• However, the spouses shall be deemed to have had no sexual
intercourse with one another during the time when they actually
lived separately. In this case, the husband shall not be deemed
as the father of the child (see Art 169(1) of RFC).
• Thus the fact that “B” is not the father of the child is presumed
fact, and that the spouses (A and B) live separately is a basic
fact .
• So “B” can disown the child by proving such basic fact even
through the child is born in wedlock. However, as provided
under Art 169 (2) of RFC, this presumption is reputable
presumption.
Ch. Two Cont.

Q. Why we need presumption?

a) To Save Time
• The law draws presumption on those facts which are more likely
to exist just to save time.

For instance, the law presumed the possessor of the corporeal

chattels as the owner thereof (see art 193 of civil code).This
presumption is based on the probability that most of the time the
individual possess chattel which belongs to him
Ch. Two Cont.
b) For Procedural Convenience
For instance:-
• capacity is presumed under the law unless the other side
alleges the disability of person in which case he is required to
prove that such person is under disability.(see Art 196 of civil
code).
• But if the court requires proof of capacity in all cases, it is
p o s s i b l e t o i m a g i n e h o w m a y i t c r e a t e p r o c e d u ra l
inconvenience. That is why the general competency of witness
is presumed (See rule 92 of DER)
Ch. Two Cont.

c) To Provide Solution for Cases Difficult to Prove

• sometimes as you may see in the case of Art 832 of civil code;
presumptions provided solution to cases, which are dif fic ult to
prove.

• If two persons are dead in the same accident, as to who died

f ir st and who died next is dif fic ult to prove for purpose of
succession unless the law of succession provides so.
Ch. Two Cont.
d) To Protect Public Policy or Greater Interest of Government
• The presumption may also be created under the law to protect public
policy or greater interest of government.
For instance,
• in order to protect the peace and order of the family, the law presumed all
property acquired during marriage as a common property of spouses.(See
art 653 of civil code).
• Similarly, the reason for the presumption of paternity of a child born either
in wedlock or an irregular union is to enable every child to have some body
as his father.(See Art. 126 and 130 of RFC)
Ch. Two Cont.

• To express by another example, there is a presumption as to the

genuineness of certif ie d copies of public documents and they
may not be challenged except with the permission of the court
(See art 2010(2) of civil code).

• This is to develop the conf id ence of the society on public

of fic ials since those of fic ials are acting on behalf of the
government.
Ch. Two Cont.

Q. Do all presumptions depend on the proof of the basic fact?

• As said earlier, presumptions are circumstantial evidences from
which if one fact (basic fact) is proved to exist, the alleged fact exists.
• Thus the benef iciary of the presumption must go half way by proving
the basic facts.
• However, there are certain presumptions not depending on proof of
basic fact. In such case, the person who alleges such presumption is
not required to prove any basic fact.
Ch. Two Cont.
• Rather, he can be the benef iciary of such presumptions by the mere fact that they
are provided under the law due to different policy reasons.

• For instance presumption of innocence is among presumptions not

depending on proof of basic fact.

• During proceedings accused persons have the right to be presumed

innocent until proved guilt according to law.

• (Art 20(3) of the FDRE constitution), and the burden of proof lies on the
public prosecutor to prove the guiltiness's of the accused person beyond
reasonable doubt.
Ch. Two Cont.

• The presumption is provided simply to guarantee the human rights of

the accused from being violated by different authorities in the name
of protection of crime and criminals.
Q. Art 1162(1) of civil code provides “Whosoever acquires a corporeal
chattel shall be deemed to be in good faith where he believes that he is
contracting with a person entitled to transfer the thing to him.”
• What is the basic fact the party in whose favor the presumption runs
has to prove in the presumption stated above?
Ch. Two Cont.

• kinds of presumptions: Two Types

a) Presumption of Fact (permissive inferences)
• is logical inferences that can be drawn by experience upon
proof of the basic fact.
• Such inferences are mostly true in the normal course of things.
• are not prescribed by law.
• Presumptions of fact are not mandatory, rather they are
permissive in the sense that the court can take it or leave it at its
discretion.
Ch. Two Cont.

• Consider Rule 88 of the DER. Is it mandatory?

Court may presume existence of certain facts

• The court may presume the existence of any fact which it

thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private
business in their relation to the fact of the particular case.
Ch. Two Cont.
• As we understand from Rule 88 of DER, this presumption of fact is the
presumption that the court may make inference form the experience,
the common course of natural events and from the custom and
behavior of a person in particular and the community in general.
• And such inferences are mostly true in the normal course of things.
 For instance,
 from the nature of human beings one can presume that every one loves his
offspring and do not want to see his relative or his best friend in bad situations.
As a result, if for instance a son is called to testify in favor of his father, one may
presume that it is dif ficult to get a neutral testimony from such witness. That is
why the opponent party tries to impeach the testimony of the witness by showing
the existence of the degree of relationship that the witness has with the calling
party.
Ch. Two Cont.
 The same is true in the application for removal of judge, if, for instance
the judge is the joint owner of the property in dispute with one of the
parties, one may presume this judge may biased to wards another
party since every one is interested in the case involving his own
property or money.
• The presumption of fact may also arise from the common
course of natural events that one presumes the existence of the
fact from his experience by applying his logical inferences.
 If, for instance, the distribution of rain is good, one may presume the
harvest to be good. There is however, no such legally established rule
that requires or object the court to presume fact.
Ch. Two Cont.
• Moreover, the court may presume the “intention fact ’’ by taking in to
consider previous similar occurrences. If the plaintiff is able to prove
the basic fact (i.e. the existence of previous similar occurrences) the
court may presume the fact whether the defendant did something
intentionally or not.
 For example, “A” was found selling banana mixed butter in her shop
repeatedly. One time a buyer after he has bought a butters discovers
that it is banana mixed. Here, the court may preserve the fact of similar
sale of banana mixed butter by the defendant because, if it were once
you would say it is done by mistake, but where it is repeated it should be
intentional.
Ch. Two Cont.
b) Presumption of Law
• As said earlier, presumptions of law are presumption, which the law
requires the court to make.
• They are mandatory in the sense that, where the law requires the
court to presume certain fact the court cannot refuse to presume.
• The bases for the creation of presumptions of law may be different.
• Some of presumptions are natural presumptions through which the law
recognized the application of such natural events. For example, the presumption
under Art 3(1) of civil code is of such kind.
Ch. Two Cont.
• And another strong factor which explains the creation of a presumption is
probabilistic relation or logical relation. Even a simple relation may be an
adequate explanation, like “If fact “A” is true, then fact “B” is probably true”. More
often, the law may need a narrower statement to justify a presumption, such as “
If fact “A” is true and the opponent party has no evidence suggesting fact “B” is
not true, then “B” is probably true”

• However all presumptions of law are not based on logical relations

there are presumptions which are prescribed by the law for different
social or governmental policy. As a result, we have such presumption
of law (e.g. presumption of innocence) which is not depending on
proof of basic fact.
Ch. Two Cont.

• kinds of presumptions of law: 3 types

a) Irrebuttable Presumption

• As said earlier, the party in whose favor the presumption made

is relieved from proving the fact in issue.

• In stead of proving the disputed fact, he proves a basic fact or

groups of facts whose interference makes the existence or non-
existence of the fact in issue more probable.
Ch. Two Cont.
• In principle, presumption has the effect of shifting the burden of proof from the
party in who's employed in case of presumption of fact and rebuttable presumptions.
• However, conclusive or irrebuttable presumption is really an awkwardly expressed
rule of law which can not be disproved by another party. Thus irrebuttable
presumptions do not have the effect of shifting the burden of production to another
party.
• Once the person who has the irrebuttable presumption on his side proves the
basic fact then the other party will be won without counter proof on his side, even if
he has possible grounds of disproving the allegations. (See Rule5 [3] of the DER).
Ch. Two Cont.
• For instance, under Art 2024 of civil code debts due in respect
of rents for house or agricultural estate shall be deemed to have
been paid where two years have elapsed since they fell due. And
no proof shall be admitted to rebut such presumptions. (See Art
2026 (1) civil code).
• In this point, the cassation division of the federal Supreme Court
passed decision that if the fact in dispute is the one which is
covered by the mandatory legal presumptions, the court shall
apply such presumptions irrespective of the fact that whether
the given fact is denied or not by the defendant. (see ኪራይ ቤቶች
አስተዳዳር ድርጅት Vs. Mr. Byronic Areca, fed. Sup. Court cassation
bench File No 1768/1997.E.C)
Ch. Two Cont.
b) Rebuttable presumptions
• A rebuttable presumption of law operates where, on the proof
of admission of primary fact, and in the absence of further
evidence, another fact must be presumed.
• Once the party has adduced suf ficient evidence to establish the
presumed fact, the presumption will apply unless the other party
successfully discharges its legal and evidential burden to rebut
the presumption.
• Thus, rebuttable presumption of law unlike irrebuttable
presumption has the effect of shifting the burden of proof to
another party.
Ch. Two Cont.
• For instance, in the case of presumption of legitimacy, a person
will be presumed to be legitimate where the primary fact is proven
that he was born or conceived during the period of his parent's
lawful married life or irregular union. (Art 126 and 130 of RFC).
However, the alleged father to rebut the presumption of legitimacy
may, for example, introduce evidence proving that he could not
have sexual intercourse with the mother during the period
between the 300th and 180th day before the birth of the child. (See
Art 168 of RFC).
• The standard of proof required to rebut the presumption may be
determ i ned by the a rea of substa nti ve l a w i n whi ch the
presumption operates.
Ch. Two Cont.

Q. Can one rebut the presumption by adducing any evidence?

• In case of rebuttable presumption, sometimes the law restricts the
ground upon which the presumption may be rebutted, and in other
c ase s d o e s no t im p o se any r e st r ic t io n o n ho w t o r e b ut t he
presumption.
• Thus some rebuttable presumptions are rebuttable on unlimited
grounds while others on limited grounds. These differences may also
have its own impact on the standard of proof required to rebut the
presumption.
Ch. Two Cont.

• For instance, under Art 2006 of civil code statements

contained in written instrument may be challenged by
those who signed it only by tendering on an oath to the
par ty who avails himself thereof. And no proof by
witnesses is admissible against such statements. From
this we can understand that as the meanness of
rebutting the presumption restricts, the required
standard of proof may increase.
Ch. Two Cont.
• Those rebuttable presumptions which are rebuttable on unlimited
grounds usually provides” proof to the contrary may be adduced
by any means”. For instance, Art 1147(1) of civil code provides”
unless the contrary is proved, he who began to possess on behalf
of another person shall be regarded as a mere holder”, and sub (2)
of this Article says “proof to the contrary may be adduced by any
means. The same is true under Art 169(2) of RFC.
• When we say rebuttable on unlimited grounds we are saying that
the law does not impose any restriction on how to rebut the
presumption.
Ch. Two Cont.

• When we say rebuttable on unlimited grounds we are saying that the

law does not impose any restriction on how to rebut the presumption.
• Thus even though, the provision does not specif ically says”… by and
means”, one can rebut it by providing any evidence as far as the law
does not impose any restriction on how to rebut the presumption.
• For instance, the saying “proof to the contrary is admissible to rebut
such presumption” or “unless the country is proved ” is equivalent to
the saying “proof to the country by any means is admissible”.
Ch. Two Cont.

• Moreover, some of the provisions of the law may impose a

limitation on the person who could rebut the presumption.

• For instance, under Art 172 of civil code, if ten years have
elapsed since the date of the last news, the absentee shall be
presumed dead and this presumption of death can be rebutted
only by absentee him self or by his special attorney after the date
of the judgment declaring the absentee and not by other persons.
Ch. Two Cont.
• Another kind of rebuttable presumptions are those reputable on limited
grounds. Here, one can not rebut the presumption by any evidences other
than those provided under the provision of the law in which the presumption
operates. For instances consider the following presumption.(art. 1153 of the
CVC, Bees)
• In the above provision (art. 1153), the former owner of bees can rebut the
presumptions, which are provided under sub (1) and sub (2), only by proving
the fact that he chases them and arrives where they have settled
immediately afterwards. And he can not rebut the presumptions by any
other meanness for instance, by witnesses.
Ch. Two Cont.
c) Permissive presumptions
• Permissive presumptions, like presumption of fact, they are not
mandatory, and like presumption of law they are prescribed
under the law.
• T he p ro v i si o ns o f the l aw whi c h p ro v i d e s p e rm i ssi v e
presumption contain the phrase” may presume...” which shows
its permissive nature.
Ch. Two Cont.
• For instance, consider Art 22 of civil code which provides” where a person refuses
to submit himself to a medical examination had the object of ascertaining not
involving any serious danger for the human body the court may consider as
established the fact which the examination had the object of ascertaining”.
• Here, for example, a person charged of knowingly transmitting AIDS to woman
may refuse to summit to examination. [Art 20(1) of civil code]. However, the court
may consider the status of the accused as HIV positive.
• But this should be true in civil proceedings where the victim claims compensation
for moral or/and material (if any) damage caused up on her. Because, here a
question arise weather the presumption provided under Art 22 of Civil code is
applicable in criminal cases.
Ch. Two Cont.

• If the case is the criminal one the suspect/accused can not refuse to
submit himself to a medical examination including blood test.(see Art
20(2)of CVC and Art 34 of CRPC).The higher standard required in criminal
case further justify the above saying.

• However, the party on whose favor the presumption is made

cannot enforce the court to reach to such conclusion. It is up to
the discretion of the court.
Ch. Two Cont.
2.3. Judicial Notice
• What Is judicial notice?
• refers to circumstances in which the judicial system assumes a
factual proposition to be true even without proof of that proposition.
• refers to facts which a judge can be called up on to receive and to
act up on either from his knowledge of them or from enquires to be
made by him self for his own information from sources to which it
is proper for him to refer.
• so well known to the court it would be a waste of time to compel
the party to offer evidence of its truth.
Ch. Two Cont.
• For example : facts like city of Addis Ababa is the capital of
Ethiopia, Epiphany is a holiday, criminals lead unhappy lives are
among those facts of which the court will take judicial notice.
• Taking judicial notice has a grate value to the courts and the
litigant parties in shortening of trials.
• As most of the scholars agree the matter to take or not to take
judicial notice is left to the discretion of the court and if there is
the slightest doubt as to whether the fact is true the party must
be required to submit proof to the court.
Ch. Two Cont.
• However, the law may require a court to take a judicial notice of
a certain facts. In such cases they are obliged to do so.
• For instance, under rule 42 (2) of DER judges are obliged to take
judicial notice of all laws published in Negarit Gazette, the
territories under the government of Ethiopian, the seals/stamps
of all ministers, the division of time and the like.
• In common law countries like England; the law recognizes two
forms of judicial notice: judicial notice without inquiry and
judicial notice after inquiry.
• judicial notice without inquiry:
Ch. Two Cont.
• those facts that are so much part of common knowledge that they require
no proof and cannot be rebutted in evidence.
• The court may also take judicial notice without inquiry of certain matters prescribed
by the law.
• judicial notice after inquiry
• applies to those facts that are not so notorious or part of common
knowledge of which notice may be taken by the judge after he has
made appropriate inquires.
• The inquiry may include referring to text books, works of reference,
certif ic ates from government of fic ials and oral statements from
witnesses.
• Include politica l or historica l na ture or ma tters of custom or
professional practice.
Ch. Two Cont.

• Generally facts of which the court may take judicial notice can
be classif ied as judicial notice of adjudicative facts and judicial
notice of laws /legislative facts.

2.3.1. judicial notice of adjudicative facts

• The proposition may be a mater of common knowledge or it

may be capable of certain determination by sources whose
authority is not questioned.
Ch. Two Cont.

• In both cases there is a criteria of ‘indisputability’.

• That means judicial notice should only be allowed in cases that
are beyond reasonable dispute. If there is the slightest doubt as
to whether the fact is true the party may be required to submit
proof to the court.
a) Facts of common knowledge
• A fact of common knowledge is a fact generally known to be
true by the ordinary intelligence of the people and beyond
dispute.
Ch. Two Cont.
• These facts of common may be either a matter of ordinary course
of nature or matters that a member of a given community can
easily recognize like known public places and customary
practices.
• A fact to be subject of judicial notice does not have to be
universally known to be true or everywhere.
• Rather it is sufficient if a fact is a fact of common knowledge in
the territorial jurisdiction of a trial judge.
For instance, a judge sitting in Afar court may take a judicial notice
on the fact of the existence of a small stream in Afar but when a
judge sitting in Gondar takes a judicial of such small stream in Afar
it is not justifiable even though he personally knows it.
Ch. Two Cont.

• A judge may not take judicial notice of matters known

to him to be true because of his private knowledge
unless they are generally known. Thus this principle
excludes personal knowledge.
• personal knowledge is excluded to increase the
confidence of the society on the judiciary.
• Because if the judge take judicial notice based on his
personal knowledge, the persons who attends the trial
m a y l o s s c o n f id e n c e o n t h e c o u r t a n d i t m a y
questioned its impartiality.
Ch. Two Cont.
• Generally a judge need not know or even have known a fact of
which he is asked to take judicial notice as far as the fact is
generally known by the society.
For instance the trial judge may be a stranger who is not yet
familiar with territory or of custom. In such case he is justif ied in
taking j udic ial notic e of the fac t if he c an asc er tain its
unchallenged existence by his own examination of the subject
matter.
• The question here should be whether the fact is known by the
people in general or not. Whether the fact is known by the
sitting judge or not is immaterial.
 Ch. Two Cont.

b. Verifiable facts
• those facts are not so notorious or part of common knowledge but
are facts that can indisputably be ascertained by reference to
authoritative means and those maters of public knowledge.
• These facts are mostly relates to science, history, art etc…
• For example, the fact that whether an epilepsy may suddenly make
a person unconscious or not can be ascertained from text of
medicine or by consulting a physician, if necessary.
• Fur thermore, if the date in which the Ethio-Eritrea war had
commenced is in dispute it can be ascertained by historical records.
• The same is true regarding geographical facts and political
subdivision of a state which can be ascertained by referring to
maps or geography texts.
Ch. Two Cont.
• Here, the reference them selv es should be undisputed
authorities and the fact must be found to be unchallenged,
because what is written on the text is not always true.
• All people need not have a consensuses on ascertain scientif ic
or historical facts. Thus the court can use a reference which is
acceptable by the majority and which is up to date.
• However, it is better that the party to submit proof to the court if
there is the slightest doubt as to the truth of the fact.
• Because the criteria of “indisputability” is also there regarding
verif iable facts. Thus, if the text is disputable the fact cannot be
verified since high level of ascertainment is a requirement.
Ch. Two Cont.
2.3.2 Judicial notice of law
• is the process by which the courts determine the applicable law in a
case. Because the issue that arise between parties may not only be
issues of fact but also issues of law.
For instance, in the case when the defendant admitted the allegation
of the plaintiff, the later may require the court to pass judgment on the
admitted fact. But assume the defendant argue that there is no law
which makes him liable to the claimant by the mere fact of his
admission.
• In such case, the plaintiff should not be required to produce art 242
of CPC to prove the above issue of law. Rather, the court can take
judicial notice of art 242 by referring it from the civil procedure code.
Ch. Two Cont.

Q. Do the process of taking judicial notice of law similar in civil and common law
countries?
Civil Law Legal System
• As said earlier, a civil law legal tradition is characterized by codification of laws.
• Thus, civil law countries have codif ie d laws either in the form of proclamation,
regulation or directives as enacted by different law making organs in different levels.
• And it is also presumed that judges are familiar with those laws which have a
nationwide application.
• As result the process of taking judicial notice of law in civil law countries seems
relatively easy.
Ch. Two Cont.

Common Law Legal System

• However, in common law countries judges are authorized to make laws. And
all subordinate courts are bound to follow the decisions of the higher court
which are given in the cases involving similar question of facts or laws.

• Now we are concerned as to how it becomes dif ficult for the judges to take
judicial notice of law in common law countries.

• Because, sometimes two decisions may come to fundamentally different

conclusions as to what the law should be. In such cases, a judge may face a
difficulty as to on which decisions they could take judicial notice of law.
Ch. Two Cont.
• Thus, that is why we have said that a judge can take judicial notice of laws
in a confident manner in civil law countries than common law countries.
Q. Which laws are subject to judicial notice of law?
• The federal Negarit Gazeta establishment proclamation no 3/1995 of art
2(3) provides all federal or regional legislative, executive and judiciary organ
as well as any natural or judicial person shall take judicial notice of laws
published in federal Negarit Gazeta.
• From the word “shall ” we can understand that judicial notice of laws is
mandatory, thus any federal or regional courts have a duty to take judicial
notice of laws published in Negarit Gazeta.
Ch. Two Cont.

• unlike adjudicative facts, the judges cannot refuse to take

judicial notice of law if they are aware about the existence of
the said law either by their own or by the help of the parties.

• like judicial notice of facts, a judge may take judicial notice of

already amended or repealed laws. In such case, the objecting
counsel can rebut it by showing the law of which judicial notice
was taken has repealed or amended.
Chapter Three
Chapter Three: Relevance and Admissibility of Evidences
Introduction
• Evidence must be relevant and that is, it must have a tendency to make
a fact at issue in the proceeding be more or less probable than it would be
without the evidence. If evidence is not relevant to some fact of
consequence to determination of the action, then there is no reason to
admit it.
• Thus, the unit will discuss facts relevant to facts in issue and relevancy
of individual items of evidence like relevancy of character evidence,
circumstantial evidence, judicial judgments and similar occurrences.
Chapter Three cont.…

• However, the relevancy of evidence is ordinarily necessary

condition but not suf fic ient condition for the admissibility of
evidence. For example ,relevant evidence may be excluded if it is
unfairly prejudicial/harmful, confusing or cumulative due to
different social or policy reasons.

• Thus, the last section of the chapter deals with relevant but
inadmissible evidences.
Chapter Three cont.…

3.1 Facts in issue

• What is Fact?
• any thing or relations of things capable of being perceived by
the senses and includes any mental conditions of which a
person is conscious.
• Thus, every thing is a fact the only difference is that some of the
facts are mental (internal or psychological facts) and some of
the facts are physical (external facts). The latter are the one's
that can be perceived by our five senses.
• Those physical facts can be proved or rebutted by direct
evidences.
Chapter Three cont.…
• However, those facts, which are subject to one’s consciousness, are
facts that cannot be perceived by our sense organs.
• These relate to facts of intention, negligence (mainly advertent
negligence), facts of good faith and bad faith.
• As you may know the state of mind of the actor or of the accused is
equally important in criminal cases where mental element (meansrea)
is an-element of every definition of a crime.
• One may infer the mental condition of a person from his conduct or from
his words. It is dif ficult to prove such psychological facts directly. Rather
we can prove such facts by taking circumstances cumulatively.
Chapter Three cont.…

Q. What is fact in issue?

• is the fact, which is disputed between the parties and to be resolved by the
help of evidence. Issue arises when a certain fact alleged to exist is denied by
the other.
• As said earlier, in criminal cases, the accused shall admit without
reservation. If he admits with reservation, a court shall enter a plea of not
guilty. And the whole charge turns out to be in issue.
• Thus, all the essential elements of the crime are the facts in issue and
evidence must be adduced in respect of each to the required standard of proof,
beyond reasonable doubt before the prosecution can succeed.
Chapter Three cont.…

• In civil cases, the facts in issue are normally to be found in the

pleadings: that is in the claimant's statement of claim any defense
put forward by the defendant. In other words, a fact in issue is
determined in the process of framing of issues at the f irst hearing.
(see Art 246 of civ.p.c)

• If admissions are made to all proposition of fact, which constitute

the claim, there is no issue to be framed and the parties are called
parties not at issue (see Art254 of civ.p.c).
Chapter Three cont.…

Q. May one case contain subordinate facts?

• As said before, trial is limited to the issues framed at the first hearing,
which are af firmed by one party and denied by the other. Such facts
are major facts such have direct relevance to the outcome of the case.
• However, there may also a collateral or a subordinate fact, which is
not of direct relevance to the out come of the case, but which may
nevertheless be raised at the trial .A collateral fact is a fact which
proves the minor issue which is relevant to the major fact in issue .
Chapter Three cont.…

• For instance,
• f ir st, those facts which affect the competence of a witness to give evidence is a
collateral fact in issue. Evidence which proves a witness to be incompetent perhaps
because the witness has a mental illness or evidence which prove that an expert
witness lacks the necessary qualif ication or degree of experience to be competent to
give expert opinion evidence are common examples of collateral fact in a case.
• Secondly, fact which affects the credibility of a witness is a collateral fact since the
weight to be attached to witness's evidence depends, in part, on an assessment of
the witness's credibility. Thus, evidence may adduce which is relevant to a witness's
credibility such as exposing a motive for the witness to lie on oath.
Chapter Three cont.…

• Thirdly, collateral facts may have to be proved as a condition to the

admissibility of certain types of evidence. For example, in criminal
case, it is represented that the accused's confession is unreliable or
was obtained by oppression. Such a confession constitutes an
evidential fact relevant to the fact in issue in the case. The prosecution
would have to prove the condition for the admissibility of the accused's
confession before it could be admitted.
Chapter Three cont.…

3.2 Relevant facts

Q. What is relevancy? And how can we determine relevancy?
• Relevancy is the f irst principle of both civil and criminal evidence. The fact
in issue in a case and any collateral facts can only be proved by adducing
relevant evidence.
• Whatever the form of the evidence, whether testimonial, documentary, real,
direct or circumstantial, to be admissible evidence needs to be both
logically and suf fic iently relevant. Relevant evidence always has a bearing
on the search for the truth determination of a past event.
Chapter Three cont.…

• Before discussing what relevant evidence is, it is better to consider Rule 6 of

DER. According to this Rule, where some one has to prove something before a
court he has to prove either facts in issue or facts relevant to facts in issue.
For instance: in the case where the defendant denies the fact that he borrowed
the money, the fact in issue will be whether he borrowed the money or not. And
this may be proved by witnesses who directly prove the fact in issue. The
witnesses may for instance testify that they saw the defendant borrowing the
money from the claimant.
• The other possibility According to Rule 6, is by proving a relevant fact which
is a fact connected to the fact in issue.
Chapter Three cont.…

Q. What is a relevant fact?

• In accordance with Rule 3 of DER, “Relevant fact” means any
fact which directly or inferentially leads to one of the conclusions
necessary to the proof or disproof of a fact in issue and a fact is
said to be relevant to another when one is connected with the
other in any of the ways mentioned in the Rules.
• Thus, from the above def in ition we can understand that
relevancy exists as a relation between an item of evidence and a
fact in issue.
Chapter Three cont.…
• any evidence which proves fact in issue directly or which proves relevant
fact is relevant evidence.
For instance, in the case where whether X committed theft or not is an issue,
a fact that X was found selling similar items said to be stolen on an open
market may be a relevant fact since it has a connection to fact in issue.
• Relevant evidence has two components: materiality and probative value.
a) Materiality
• Materiality refers the relational aspect of relevancy. For evidence to be
relevant a logical relationship needs to be established between the
evidence tendered/suggested and the fact to be proved. This connection
may be either direct connection or indirect connection with a fact in issue.
If the evidence is offered to help prove a proposition which is not in issue
the evidence is immaterial.
Chapter Three cont.…
b) Probative Value
• In the law of evidence we are not interested only in the
connection but in the capacity to prove or disprove a fact.
• Under art 137 of cr.p.c and art 263 of civ.p.c questions put in
examination in chief shall only relate to facts which are relevant
to the issue to be decided.
• Moreover, under art 138 of civ.p.c the court may at any stage of
the suit reject any document, which it considers irrelevant or
other wise inadmissible.
• Even though the codes nowhere specify what categories of
facts are relevant the above and other provisions underline the
importance of relevancy.
• Thus it would be proper to raise an objection under Art 146 of
cr.p.c or Art 270 of civ.p.c on the ground of irrelevancy.
Chapter Three cont.…

• requires relevant fact to have the capacity to prove.

• The point is that mere connection but without
probative value does not serve any purpose.
• It is, therefore, clear that relevancy refers to the
probative value of evidence and its relation ship to
the purpose for which it is offered.
• Assessment of relevance is governed by the
cannons of logic, general experience and common
sense.
Chapter Three cont.…

• ' 'Relevant evidence ” means evidence having any tendency to

make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.

• Evidence to be relevant it must have a suf fic ient degree of

probative force.
Chapter Three cont.…

3.3 Facts Relevant to facts in issue

• the determination of relevancy is based on logic and common
sense.
• The following discussion focuses with regard to which facts
that evidence may be submitted in addition to fact in issue.
a) Facts forming part of the same transaction ( Res-Gestae)
((የአንድ ፍሬ ነገር አካል የሆኑ ወይም በገላጭነትና በአጃቢነት የተያያዙ ፍሬ
ነገሮች))
• Rule 7 of DER state that: Any fact is relevant which, though not
in issue, is so connected with a fact in issue as to form part of the
same transaction whether both facts occurred at the same time
and place or at different time and place.
Chapter Three cont.…

• Res-Gestsae is a Latin term, which

means things done or said in the
course of a transaction.
• As stated in the rule, the facts must
be so closely related so as to form
part of the transaction.
• Transaction consists both physical
facts and verbal facts (words spoken).
Chapter Three cont.…
• Regarding physical facts there may not be problem to identify
but with verbal facts.
• Declaration or words spoken to be taken as res-gestae, they
have to be spontaneous declarations to the existing (startling)
occurrence and not as a result of reflection thought.
• That means, the declarations should be made by persons who
are present at the time of the occurrence.
• Therefore, if the witness rushed to a crime scene on hearing the
sounds of an explosion and heard from the mouth of the others
as to what hap p ened , hi s statem ent i s not p ar t of the
transaction.
Chapter Three cont.…

b) Facts being the occasion, cause or effect of facts in issue

((በጭብጥ ስለተያዘው ፍሬ ነገር አጋጣሚ ምክንያት፣ መነሻ ምክንያት ወይም
ውጤት በመሆን ግንኙነት ያላቸው ፍሬ ነገሮች))

• Rule 8 of DER reads as: Any fact is relevant which is the

occasion, cause or effect, immediate or otherwise of facts in
issue or relevant facts or which constitutes the state of things
under which such facts happened or which affords an opportunity
for their occurrence or transaction.
Chapter Three cont.…

 Cause or effect
• When there is logical causal connection between two
facts, back and forth inferences that are inference
about the causes from the effect or about the effect
from a given cause can be made.
• For example , in the case whether A murdered B is at
issues, marks on the ground produced by the struggle or
the blood spots at the place where the murder was
committed are relevant facts since they are effects of the
crime.
Chapter Three cont.…
 Occasion
• The time, place and condition of a cer tain act help us to predict the
possibility or impossibility of something. If “ time, place and condition” do not
exist together, the possibility of a creation act to take place is less probable.
• Occasion inquires in to the existence of a favorable environment for the
alleged fact to exist or not.
• For example, in the case whether A killed B by knife is in issue, the time and
place of the commission of a crime are relevant. A may kill B at day time or at
night. If B was killed at night, the question may arise as to how a witness able
to identify the killer or the kinds of the knife i.e. whether it is a china-made or
not, unless there was an electric light.
Chapter Three cont.…

• Moreover, A may kill B in open market place, in dark corner or in forest. If the
prosecution alleged that B was killed in open market, the question may arise
as to the reason why the persons in the market and the police officers failed to
arrest the killer. Thus, proving the fact of occasion is relevant to know whether
there is a conducive environment or not for the alleged fact to exist.
 State of things
• This is something that can be understood when you compare facts the way
they were before and after an act. When state of things is disturbed, it must be
because of something that indicates a certain happening.
For example, if the issue is whether a property is stolen from your room or not,
the present state of things has something to say about what has happened,
and that is relevant.
Chapter Three cont.…

c) Motive, preparation, and previous and subsequent conduct

(በጭብጥ ስለተያዘው ጉዳይ የነበረው ዓላማ፣ዝግጅትና በተከታታይ የታየው
ተግባርና ባህርይ)
 Motive : Motive is the compelling force to do a certain act.
There can be no action without a motive, which must exist for
every voluntary act.
For example: in the case where A is tried for the murder of B, the
fact that B knew that A had murdered C, and that B had tried to
take money from A by threatening to make his knowledge public,
are relevant.
Chapter Three cont.…
 Preparation
• Motive leads to a specif ic intent the realization of which may be
preceded by preparation.
• Preparation is normally refers to things you do to a result by
trying to obtain the means.
• Preparation on the part of the accused to accomplish the crime
charged, or to prevent its discovery or to aid his escape, or to a
avert suspicion from himself are relevant on the question of his
quilt.
• For example: a person prepares to kill someone he may buy
poison, knife, etc.
Chapter Three cont.…
 Conduct (previous or subsequent)
• The conduct of a party in relation to a fact in issue is relevant whether
such conduct is previous or subsequent to the occurrences of the fact
in issue.
For example: Where a person wants to kill a person he may make all
types of preparation, displace his family, sell out his property, etc. This is
previous conduct or conduct before the killing of a person. After the killing
a person may not feel comfortable and may attempt a number of things
not to be detected or identif ied, or he may at least abscond or hide or
disguise himself. This is conduct subsequent to the fact to be proved
which is also relevant
Chapter Three cont.…

3.4 Relevancy of Confession

• As said earlier, judicial admission to be acceptable as evidence, the court
should have a confidence on the truth of it.

• The accused may voluntarily confess for all sort of reasons, for instance to
protect some one or to avoid embarrassment for themselves or others even
where they are innocent of the allegations made against them.

• Thus, unless a given confession is true it shall not be relevant evidence.

And court may require the prosecution to call evidence. This is the case of
excluding a confession on the ground of unreliability. (see Art 134(2) of
cr.p.c)
Chapter Three cont.…

• However, even though the given confessions are true, they are made inadmissible
if they are obtained in violation of rules of procedure.
• Here, improperly obtained confession evidences are rejected not due to the fact
that they are irrelevant but because of legal prohibition made in furtherance of
interests like privacy and human dignity. (((fruits of a poisonous tree are poison))
• An out of court confession to be admissible it should be the one which is made
before the police of fic er or person in authority during the course of interrogation.
Here, confessions made to other persons other than person in authority are
inadmissible.
Chapter Three cont.…

3.5 Relevancy of Circumstantial Evidence (የአካባቢ ማስረጃ አግባብነት)

• circumstantial evidence is evidence that proves a certain fact
indirectly.
• This evidence is depends on the surrounding circumstances.
And those circumstances are facts, which should be proved by,
evidence and which enables us to make inferences about the
existence and non-existence of the alleged or disputed fact.
• Thus, as far as such circumstances have suf ficient connection
with the disputed fact they are relevant.
Chapter Three cont.…

• Generally, we can classify circumstantial evidences in to three:

• They are 1. Prospectant evidence, 2. Concomitant evidence and
3. Retrospectant evidence.
 Prospectant (የቅድመ ሁኔታ ) evidence
• When the existence of a certain fact is at issue, the existence of
previous thing or mental status is relevant.
• This is the case when the former infer the later, or which is
based on the forwards looking probabilities.
Chapter Three cont.…

• For example, the judge may have to make conditional prediction

of what the plaintiff's income would have been in the period to
date had she not been injured.
• Or, if it is a material issue whether it rained in a given afternoon
is the past, evidence that it was cloudy in the morning may
assist the judge. Because a rainy afternoon is substantially more
likely when we know the morning was cloudy than it was before
we knew whether it was cloudy or not.
Chapter Three cont.…

 Concomitant (የተጓዳኝ ሁኔታ) evidence

• If the occurrence or not of a certain fact at a specif ic time is in
issue, the occurrence of other facts at the same time by the
same person are relevant as a concomitant evidence.
For instance፡ if the question is whether “A” committed murder at
Gondar in specific minutes of an hour and day or not, the fact that,
on the day and minutes of the hour, “A” was at Bahirdar is relevant.
Because, the fact of presence elsewhere is essentially in
consistent with the presence at the place and time alleged and
makes impossible personal participation in the fact in issue.
Chapter Three cont.…
• This is the theory of alibi (a Latin word which signifies “else where”).
• However, prove of alibi may not be acceptable if it can be shown that the accused
was at such place as was with in a reach i.e. only few kilometers away. Similarly as
said earlier Res- gaesta evidences are relevant as concomitant evidence too.
 Retrospectant (የድህረ ሁኔታ) evidence
• is the opposite of Prospectant evidence.
• It is the case when the existence of the later fact refer the existence of the former or
which is based on backward looking style of reasoning.
• If it is a material issue whether “A” killed the stranger “B” or not, evidence that “A” was
driving at high speed and failed to stop even at red traf fic light is relevant since after a
killing a person may try to abscond himself in order not to be detected.
Chapter Three cont.…

3.6 Relevancy of similar Occurrence

• When we talk about similar occurrences, the question that comes to mind
is “similar to what?” Here, similarity is similarity to the fact in issue or
disputed fact.
• If the issue to be resolved before the court is fraud, similarity refers other
previous act of fraud committed by the same person.
• The fact that, he had done similar acts before does not justify the
conclusion that for whatever of similar acts, the accused is responsible. But
it may increase the probability that the alleged crime committed by him.
Chapter Three cont.…

• However, similar occurrence shall not be used to prove a fact in

issue.

• Bec ause, like c harac ter ev id enc e, ev id enc e of sim ilar

occurrence may produce an unfair bias, in the sense that it is
likely to divert the attention of the court from the fact of the issue
before the court to the general character of the accused since
character is the cumulative effect of similar behavior of a person.
Chapter Three cont.…

• Even though evidence of similar occurrences are not relevant to

prove a fact in issue, they are relevant to prove whether a person
did something intentionally or accidentally.

• The task of determining the existence of suf fic ient relation

between the act in question and those similar occurrences is left
to the discretion of the court.
Chapter Three cont.…

• Similar occurrences to be relevant, there must have the same

characteristics with the act in question. Firstly, if the issue to be
resolved before the court is fraudulent act, it is not relevant to
produce previous acts of theft. Secondly, previous similar
fraudulent acts must have similar characteristics with the
fraudulent act in issue.
• For instance, a trader “A” was found selling banana mixed butter in
her shop repeatedly. One time a buyer after he has bought butter
discovers that it is banana mixed.
Chapter Three cont.…

• Now similar sale of banana mixed butter is relevant since it may help
us to establish the element of knowledge and there by indicate that the
defendant's participation in the alleged fraudulent scheme was not
innocent or accidental, but intentional.
• But, similar sale of second hand clothes is irrelevant to know whether
the defendant sold the banana mixed butter intentionally or not since
previous similar occurrences have different characteristics with the
alleged act in issue i.e. fraud on sale of butter.
Chapter Three cont.…

• Moreover, sometimes a single similar occurrence may not be strong enough to

indicate the intention of a person towards the commission of the alleged act.
• Because if it were once you would say it is done by mistake, but where it is
repeated it should be intentional. However, even though the similar occurrence is a
single one it may be relevant if the defendant knows his wrongful act immediately
after the occurrence.
• For instance : “A” try to purchase a thing by forged note in shop “A” but the shop
keeper refused to accept the note and informed him that the note is forged.
However, knowing this fact if Ato ”A” try to purchase a thing by using the same
forged note from shop “B”, his previous act is relevant even if it is a single previous
similar occurrence.
Chapter Three cont.…

3.7 Relevancy of Judicial decision

• One act may entail both civil and criminal liability, because most
of the time a criminal act entails extra- contractual liability.
• Thus, in the case when a certain act entails both civil and criminal
liability of a person, the plaintiff will have two options regarding
his civil claim.
• First, he may institute his civil claim in civil court independently.
The civil court shall not wait the judgment of a criminal court.
Both criminal and civil courts have to decide cases brought before
them independently upon the evidence offered to each of them.
• Secondly, the plaintiff may apply to the criminal court trying the
same case for an order that compensation be awarded for the
injury caused.
Chapter Three cont.…

• This is the case of joinder of criminal and civil cases. (See Art 154
of cr.p.c).
• However, the court may refuse the plaintiffs application due to
one of the reasons provided under Art 155 of criminal procedure
code.
• For instance, the court may reject the application of joinder if the
hearing party's claim for compensation is likely to confuse,
complicate or delay the hearing of the criminal case.

Q. Is civil court judgment relevant as proof of guilt in criminal case?

Chapter Three cont.…

• Generally, judgments of civil court are not relevant and binding

evidence on criminal courts.
• This is due to the reason that the standard of proof required for
each case, criminal or civil is different.
• In criminal courts, the standard of proof is the formula of
beyond reasonable doubt while in civil cases decision is based
on preponderance of evidence.
• Thus, evidence which is suf fic ient for civil cases may not be
strong enough to prove guilt in criminal case.
Chapter Three cont.…

Q. Is criminal court judgment relevant in civil cases dealing with the same
matter?
• As to this point, common law and civil law traditions have different positions.
• At common law proof of conviction or acquittal by a criminal court is not
relevant in a civil court suit dealing with the same matter.
• The reasons are, in the f irst place the civil court should be as capable as the
criminal court in deciding factual issues based on evidence presented before
it than depending its decision on the “opinion “of the criminal court. And in the
second place, the degree of proof necessary to f ind a given fact in dispute is
different in two cour ts.(beyond a reasonable doubt in criminal cour t,
preponderance of evidence in civil cases).
Chapter Three cont.…

• However, in civil law tradition (especially France and Italy) the judgment
of criminal courts (whether conviction or acquittal) are binding on civil
court.
• Q. Is criminal court conviction binding on civil courts?
• If we see from the angles of the standard of proof required in the two
cases evidence which is sufficient for criminal cases is more than enough
to prove liability in civil cases.
• If this is so, the civil court shall not require the production of additional
evidences to determine the civil liability of the accused.
• Rather the civil court may require evidences to decide on the question of
the amount of compensation to be awarded.
Chapter Three cont.…

• Moreover, under Art 2035 of civil code the accused is

extra contractually liable by the mere fact that he
infringes the provision of criminal code.
• Because Art 2035 of civil code points out that an
offense is committed when a person infringes any
provision of law, decree or administrative regulations.
• That is why a criminal court when suits are joined
makes the accused civilly liable if he is convicted. (The
acontratio reading of Art 158 of crpc)
Chapter Three cont.…

3.8 Relevancy of character evidence

• “character” includes both “disposition” and “reputation”. Thus, we may have
character evidence of two types.
• The f ir st is evidence of disposition of a party in a party in a particular
instance for a particular character trait related by someone who has had
enough experience with the individual(e.g. friend, work mate or family
member) to know that disposition/personality.
• This is when the witness gives his own personal opinions about the
character of an individual based on his personal dealings with the said
individual.
Chapter Three cont.…

• However, the second type of character evidence is evidence of general

reputation in a particular community. This is the general character of a
person which is known by the community in general.
• It is the community opinion not the opinion of a particular individual that
determines reputation.
• Here the opinion given in court must be based on what the witness feels
to be the individual's reputation in the community for the particular trait
not the individual's reputation for that trait with the witness based on
particular dealings between the witness and the individual.
Chapter Three cont.…

• When we talk about “character”, it is the general character

(general reputation) evidence is relevant to show character rather
than the character which emanates from the personal or
particular good or bad acts of a person.
• The relevancy of character evidence is different in civil and
criminal cases.
• In civil cases, character is generally irrelevant . For in stance, the
character of the contracting parties are irrelevant to determine the
issue “whether there is a contract or not”.
Chapter Three cont.…

• However, there is an exception in which character is relevant in

civil cases. This is when character itself is in issue.
• In some civil cases, the issue will be whether the person has
good reputation or bad reputation.
• This is true in case of defam ation. In the claim for
c om p ensati on f or d ef am ati on, the truthf ul ness of the
defamatory statement is a defense.
• Thus, the defendant can produce evidence of bad character of
the plaintiff (see Art 2047 of cvc). Here, the nature of the issue
itself compels this kind of evidence to be produced.
Chapter Three cont.…

• In criminal cases, good character of the accused is always relevant. Here an

accused may show evidence of good character for the particular trait or traits
involved in the crime or crimes with which he is charged.
• In principle the fact that the accused person has a bad character is irrelevant in
criminal cases. (see Rule 47(2) of DER). Art 138 and Art 149 of the criminal procedure
code prohibit the disclosure of the character or antecedents of the accused before
conviction.
• Moreover, bad character evidence of the accused is only irrelevant before conviction.
After conviction, bad character evidence may be used to aggravate sentence. (see Art
149(3) of cr.p.c)
• Good character will be produced for mitigation and bad character for aggravation.
Chapter Three cont.…

3.9. Relevant but inadmissible facts

• Relevancy is a necessary condition for admissibility.

• However it (relevancy) is not a suf ficient condition to guarantee

fact to be admissible in court of law or before other decision
making organ authorized by law. This is because there are legal
prohibitions against some relevant facts to be produced as
evidence for social and public policy reasons as stated below.
Chapter Three cont.…

3.9.1 Admissibility: General

• There is the principle of law of evidence that evidence that is

not relevant is not admissible.

• If evidence is not relevant to some fact of consequence to

determination of the action, then there is no reason to admit it.

• Inadmissible evidence may not be received before a court, no

matter what is relevance might be.
Chapter Three cont.…

• Evidence is inadmissible if rejected for some reason other than relevancy.

• Admissibility is, therefore, abroad concept under which rules for exclusion
of evidence irrespective of its relevancy.
• Thus, inadmissible evidence may not be received before a court, no matter
what is relevance might be.
Q. When does evidences may be rejected by the court?
• An evidence may be rejected or not received by court for two reasons.
One, if it is not relevant and secondly, if there is a legal prohibition behind it.
• Therefore, in short, to be admissible, evidence has to be relevant to a
material proposition, without any exclusionary rule preventing admissibility.
Chapter Three cont.…
3.9.2 Relevant Facts which may not be Proved (አግባብነት ያላቸው በማስረጃነት
ስለማይቀርቡ ፍሬ ነገሮች)
• Even though, the evidence is relevant , it may be prohibited from being
produced as evidence before the court of law. These situations include:-
a) Public policy
• This is because if evidences are disclosed, the national interest and
governmental secrecy or the administration of judicial process may be
affected.
 Evidence as to affairs of state
• No one shall be permitted to produce any unpublished of fic ial records
relating to affairs of state or to give any evidence derived there from
except with the permission of the minister of the department concerned.
Chapter Three cont.…

• Evidence which may fail under this category may be the one
which concerns government secrets or public security ,
information concerning the stand and organization of military
force, and other internal security matters which may potentially
injured the nation's international relations.
 Information for the detection of crime (የምርመራ መረጃን መግለጽ
በተመለከተ)
• No police of ficer shall be compelled to point out the person or
the w ays f ro m w hi c h he g o t any i nf o rm ati o n as to the
commission of any offence. If we compel the police to disclose
the person who gave information, it may discourage others not to
give information about the commission of the crime.
Chapter Three cont.…

• Moreover, no police of ficer shall be compelled to disclose the

information as to the ways of detecting a crime.

• Because, if the criminals aware about the tactics of police as to

the detection of a specif ic crime, they may come up with a more
sophisticated way of committing a crime which is beyond the
reach of the police, and affect the process of investigation in the
future.
Chapter Three cont.…

 Judicial disclosures
• No judge shall be compelled to disclose the judicial process of
a given case or judgment.
• This is to protect the principle of independence of judiciary.
Courts of any level shall be free from any interference of any
governmental body, government official or from any other source.
• Otherwise the executive organs may spoil the independence of
judiciary. (Art 77 of FDRE constitution)
Chapter Three cont.…

b) Privilege
• The purpose of excluding certain relevant evidences from being
produced before the court of law in the name of privilege is to
protect certain social interest, which prevails over the individual
interest.
• For instance , no person who is or has been married shall be
compelled to disclose any communication made in marriage.
This is to protect the marriage or the family from being
dissolved due to the break of secrecy by one of the spouse.
Similarly, there are privileges provides to protect professional
secrecy like in the cases of client- Advocate, patient-physician,
and priest-son relations.
Chapter Three cont.…

c) Parole evidence or extrinsic evidence in relation to document

Q. Can you state the best evidence rule? Does the principle of the best
evidence rule have an exception?
• The best evidence rule provides that the best proof of a document's
content is the document itself. (ppl)
• A written document can only be proved by the instrumentality of itself.
• In proving the terms of writing, where such terms are material, the
original writing must be produced, unless it is established that the
document evidencing the contract has been destroyed, stolen or lost.
(rule 53-57 of DER and, Art 2003 of cvc which provides the best evidence
rule for contract.)
Chapter Three cont.…

Q. What is the essence of the parole or extrinsic evidence rule?

• The parole evidence rule restricts the use of extrinsic evidence be it oral or
written and requires that the party proves his case exclusively by the
evidence of the contents of a writing.
• As opposed to the best evidence rule, the parole evidence rule does not
require that the evidence of the document be the document itself not oral or
other evidence of the contents. Instead, it simply limits proof of the fact to
the contents of the writing and prohibits consideration of any evidence
which contradicts, alter, vary, change, and modify any of the terms or
provisions of the written agreement.
Chapter Three cont.…

• Art 2006(2) of the cvc provides for the parole evidence rule for
c o ntrac ts. Ac c o rd i ng l y, no p ro o f b y w i tne sse s o r any
presumption is admissible against statements contained in a
written instrument. Here the article does not provide whether it
is possible to challenge the contents of a written contract by
other written document.
 Chapter Four
CHAPTER FOUR: ORAL EVIDENCE
1. Introduction
• After it is decided what facts are to be proved in court (facts
in issue & relevant facts), the next step is how to prove these
facts or to choose the method of securing their consideration.
• Most evidences submitted during the trial consist the
testimony of witnesses to facts they claim to have seen ,
heard, felt, tasted or smelled. There are few cases where only
real evidence is offered and many more where only oral
evidence is available.
Chapter Four Cont…
• This chapter deals with such type of evidence called oral evidence.
After showing the general concepts of oral evidence, the chapter will
deal with competency of witnesses. The principle concerning
competency is that all persons are capable of testifying before the
court. The chapter will deal with the exceptions to the principle.
• The justif ic ations for granting privileges to some group of persons
will be the concern of this chapter. In addition, the lists of privileges are
covered. Hearsay evidence (justif ication for exclusion and exceptions
to exclusion) is also part of the discussion of this chapter.
Chapter Four Cont…
4.2 Oral evidence: Definition
• Even though different writers define oral evidence in a different form, the message
they convey is the same. Common definition;
• All statements which the court permits or requires to be made before it by witnesses in relation
to the matters of fact under inquiry; such statements are called oral evidence.

Q. What is witness?
• A witness is defined as:
• Someone who has f irst hand knowledge about a crime or dramatic event
through their senses (e.g. seeing, hearing, smelling, touching) and can help
certifies important considerations to the crime or event. [Ronald L. Melnick]
Chapter Four Cont…
• A witness who has seen first hand is known as an eye- witness.
• Expert witness is one type of witness who testif ie s not only
what he has seen, heard, or otherwise observed personally but he
may also offer an opinion applying his expert knowledge to facts
he has not personally observed.
• The function of a witness is to present evidence from which the
trier of fact can make a determination as to what happened.
Chapter Four Cont…

• Generally to be eligible to testify a witness must have a personal

connection with the relevant occurrences coupled with mental
and physical facilities suf ficient to observe the events at the time
of their occurrence, and recollect and relate them to court in a
manner, which renders the testimony relevant.
• The expression “oral evidence”, therefore, includes the
statement of witness before the court, which the court either
permits or requires them to make.
Chapter Four Cont…

4.3. Importance of Oral Evidence

• The importance of the law of evidence in general and oral evidence in
particular is highly related with the goals of an adjudication, which is a
form of dispute resolving mechanism and the fundamental aim of
adjudication is correctness of decision making.
a) assist the achievement of rectitude or correctness of decision making
• Enable to achieve correctness of decision making by ensuring that by
any means the evidence before the court is relevant and reliable to
establish the true fact.
Chapter Four Cont…
• This is done by several mechanisms:
 First, much evidence that could be overemphasized/exaggerated or
which could lead to erroneous inferences being drawn is inadmissible.
• For example, hearsay evidence is often both unreliable and as such is
generally inadmissible in criminal proceedings; an expert opinion cannot
be given on matters of general knowledge because the tribunal of fact
might attach too much weight to it; and the accuser’s criminal
disposition is generally inadmissible because of the risk that unduly
prejudicial inferences might be drawn from it.
Chapter Four Cont…
 Secondly, the law imposes a requirement that a fact in issue
must be proved to an appropriate degree of probability. In
criminal trials the burden on the prosecution to prove the
accuser’s guilt beyond reasonable doubt and preponderance of
evidence is applied in civil adjudications.
 Thirdly, the proc ess of c ross-exam ination prov ides a
mechanism for testing credibility of witness and revealing to the
tribunal of fact any vested interests, bias or mistakes adversely
affecting the cogency of their testimony.
Chapter Four Cont…

b) Serve as a possible option to prove the alleged fact in case of

absence of documentary evidence.
• This is true especially in criminal cases that most of time it is
hard to get documentary evidence. Hence, the possible option to
prove the alleged fact is by producing oral evidence.
• Since oral evidence is given by a person who has personally
seen, heard, or otherwise observed, its credibility is high.
• That is why witnesses are described as “The eyes and ears of
justices”.
Chapter Four Cont…

4.4. Competence of witnesses

• Ordinarily, competence refers to capacity of a person to do
something. Here, competency of a witness takes to the inquiry as
to which persons are capable to testify or are competent witnesses.
• A competent witness is one who is able to testify or one whom
nothing prevents from testifying unless there are some conditions
which bar him from doing so.
Chapter Four Cont…

A) Types of Competency of Witnesses

• The witness' competency is classif ie d in to two: general
competency and special competency.
 General Competence
• refers to the witness` ability to testify to facts he has observed.
In simplistic terms, it is about telling to the court what one has
heard, seen, smelt, touched, etc.
Chapter Four Cont…
• Thus, to be included as witness in the general competency a
person must posses the organic and moral capacities. This is to
mean that the test to competency relates to the ability to
understand questions and give rational answers.
• To put it in another way, competency of a person is determined
by his ability to perceive, remember, communicate and
understand the duty to tell truth.
 Special Competency
• Special competency refers to a witness's ability to testify to
opinions or conclusions he has arrived at by evaluating facts he
has ob se rv e d , f ac ts p re se nte d to hi m b y c ounse l or a
combination of both types of facts.
Chapter Four Cont…

For example: if you go to a hospital you don’t tell your illness to

the doctor, but you tell the facts about your illness, then, he
analyzes the facts and tells you what you are suffering from.
• Unlike general competency of witnesses, special competency is
not presumed.
• Special competency of witnesses is subdivided in to two:
layman’s opinion, and expert opinion given as testimonies.
Chapter Four Cont…
 A Lay witness is a witness with no expertise in the matter
concerning which he testifies beyond that of the judge.
 The opinion of expert witness may be required by the court or
by either of the parties. To call expert testimony, the subject
matter must be so complex that judges should be assisted in
forming proper judgment regarding the fact.
4.5.1 Grounds of incompetence
• There are few grounds, in the Rule 39 of the Court Rules of 1943
and Rule 92 of Draft Evidence Rule, which make a person
incompetent from testifying before courts of law. These are:-
Chapter Four Cont…

4.5.1.1 Mental incapacity

• The incompetence of mentally incapacitated persons was a ground
for raising objections in both the common law and the Ethiopian legal
system.
• It comprises children, insane, and intoxicated persons, whose
conditions may be long lasting or intermittent in nature.
4.5.1.2 Physical incapacity
• This covers those persons, who have visual, hearing, and speaking
deficiencies.
• Such persons can, in principle , perceive the occurrence or non-
occurrence of certain events. However, defects such as blindness,
deaf or dumb may impair the power of observation to make a given
witness incompetent to testify.
Chapter Four Cont…
• However, according to the general rule, physical incapacity is no
bar to a witness's competency as long as he can understand the
questions put to him and give rational answers to those questions.
• Rule 92(2) of DER by supporting the above assertion states that,
if a person cannot speak, see and hear, he may still testify if
questions can be put to him in some accurate fashion and he can
reply by signs or writing which can be accurately interpreted by
some one sworn to do so accurately.
4.5.1.3 Legal interdiction (Conviction of a crime)
• In present Ethiopia this is no longer a bar to competency of a
witness.
Chapter Four Cont…
• This can be inferred from the substantive laws such as the FDRE
Constitution and the procedural laws, i.e., Art 142 of the crpc,
and Art 268 of the cvpc, and etc. However, a witness may be
asked about prior convictions to impeach his credit.
4.5.1.4 Deprivation of Right

• Art. 123 (a) of the FDRE Criminal Code (the Court may make an order

depriving the criminal to be a witness)

Chapter Four Cont…

4.6. Examination of witness

• There are three forms of questions, namely; examination in
chief, cross-examination, and re-examination.
4.7 Hearsay evidence
• is a type of ev idence giv en by a witness based on the
information he has attained from the statements made by
others.
• When we see the practice of our courts it is clear there is
confusion on admissibility of hearsay evidence. There is no
uniform application of the rule; some judges admit it while
others do not.
Chapter Four Cont…
• Even though, the provisions of our procedural laws are not clear as to
whether hearsay evidences are admitted as a rule or as an exception, our
DER Considered hearsay evidences as an exception. (See Rule 29 of DER).
• The basic justifications for exclusion of hearsay evidence are:
a) Lack of cross- examination
• Absence of cross- examination is the most important justif ication to
exclude hearsay statement, because the declaration was made out of
court rather than before the court, and not subject to the test of cross-
examination.
Chapter Four Cont…

b) Absence of oath
• Usually the out-of-court declarant was not under oath at the time
of declaration.
c) Testimonial infirmities
• A testimonial inf irmity is a concept dealing with problems of
misperception, faulty memory, ambiguity and distortion in
relation to an oral statement of an out of court declarant.
Chapter Four Cont…
4.7.3 Exception to hearsay evidence
• There are certain exceptions to the hearsay rule, which makes
the hearsay evidence admissible. Some of these exceptions are:
a) Dying Declaration
• Def ined in Rule 29(a) Draft Evidence rules as: It is made
by a person who is dead, or as any of the circumstances of the
transaction which resulted in his death, in cases in which the
cause of that person’s death comes in to question, whether that
person was or was not, at that time the statement was made,
under expectation of death and what ever may be the nature of
the proceeding in which the cause of his death comes in to
question.
Chapter Four Cont…

the justif ication for allowing evidence of dying declaration in the absence of
the original seems to be necessity of evidence. If the original declarant is
dead or cannot be found, there could be no better evidence than the hearsay.
b) Statements made in the ordinary course of Business
• Def in ed in Rule 29 (b) of the Draft Evidence Rules, and the idea behind this
exception is that if the statement is made in the current routine of business, it is
more likely to be trust worthy than otherwise.
• The term business has a broad meaning covering any trade, profession,
occupation or calling.
Chapter Four Cont…

c) Declarations against interest

• Def in ed in rule 29(c) of DER as: When it is
against the pecuniary or proprietary interest of the
person making it, or when, if true, it would expose
him or would have exposed him to a criminal
prosecution or to a suit for damages.
d) Statements of opinion as to the existence of a public
or general right or custom
Chapter Four Cont…

• Def ined in rule 29(d) which says: When it gives the

opinion of any such person, as to the existence of any
public right or custom or matter of public or general
interest of the existence of which, if it existed, he would
have been likely to be aware, provided it was made
before any controversy as to such right custom or matter
has arisen.
Chapter Four Cont…
4.8 Exclusionary rule: Privileges
• The term privilege means a freedom from compulsion
to give evidence, or a right to prevent or bar evidence
from other sources, usually on grounds unrelated to the
goals of litigation.
• In the absence of privilege, parties, witnesses, and
others, can be compelled by a court to give testimony or
other material they may have that is needed for court
proceeding even if it is damaging to themselves or
others.
Chapter Four Cont…
• Privileges are a narrow exception to these
general rules.
• privileges operate to exclude good proof, in the
name of some other social objectives.
• Most privileges are designed to promote certain
kinds of relationship, and particularly to promote
conf idential communication with in the socially
desirable relationships.
Chapter Four Cont…

4.8.1. Policies underlying privileges

• a common policy underlying privilege is:
 to encourage desirable/Confidential communication
• The privileges for conf idential communications in the attorney-
client, physician-patient, psychotherapist-patient, and husband-
wife contexts are examples.
 to protect the desired relationship itself
• to foster the marital relationship, many jurisdictions recognize a
privilege of one spouse to refuse to testify adversely to the other.
Chapter Four Cont…
 to uphold the integrity of a profession; to avoid futile efforts to
coerce testimony against principled resistance; to avoid likely
perjury if so coerced; or to serve commonly shared principles of
privacy, fairness, or morality.
 privileges operates to advance economic policies, such as
those protecting trade secrets, or to encourage voluntary
compliance with law, as in the case of privileges for certain
required reports to government agencies.
 to limit governmental invasion of the security of individuals.
The privilege against self-incrimination is an example.
Chapter Four Cont…

4.8.2 Types of privileges

4.8.2.1 The right against self- incrimination
• guaranteed by the FDRE Constitution encompasses two privileges.
• the privilege of the criminally accused (right to turn away impeachment
questions)
• The privilege of other civil or criminal witnesses to turn away particular
questions that might open up (increase the person’s exposure to criminal
prosecution or criminal liability) crimes committed by them.
Chapter Four Cont…

4.8.2.2. Governmental privileges

• Certain records required by the government to be kept or
submitted may be attended by a “required report privilege.”
• this privilege is to be distinguished from the privileges
protecting certain other governmental matters such as
state or military secrets, official information, and the identity
of informers.
• Although the policy behind a particular required report
privilege is rarely clearly articulated in the statute or judicial
interpretations thereof, the privileges generally seem to be
founded upon either one or both of two distinct policies:
Chapter Four Cont…
a) Encouragement of voluntary compliance: The intent here is to
encourage citizens (or companies) to accurately and fully
report potentially self-damaging information which they would
otherwise hesitate to furnish for fear of the consequences
resulting from later uses of such information.
b) Governmental concerns: The concern here is with the
government’s internal processes, i.e. preventing disclosure of
government of ficers’ and investigators’ notations or opinions;
preserving documents from loss, or destruction, alteration and
the like.
c) Federal statutory privilege of government agency heads to
make rules (respected in court) prohibiting subordinates from
disclosing intra-departmental communications, agency f iles,
and information obtained by agency investigation.
Chapter Four Cont…
d) fourth privilege encompasses some of the fundamental
principles of the above mentioned privileges and is embodied in
state statutes which provide that “a public of fic er cannot be
examined as to communications made in of ficial conf idence,” a
som e what anal og ous j ud g e - m ad e rul e e xi sts i n som e
j urisdic tions. T hese f our nondisc losure p rinc ip les are
extensively qualified.
f) Finally, there is a f if th type of privilege called executive
privilege, exercisable by the president or by certain of his
of fic ers. This privilege rests on several policies, including the
constitutional separation of powers.
Chapter Four Cont…
4.8.2.2. Professional confidentiality
a) Attorney-client privilege
• The main purpose of attorney-client privilege is to facilitate informed
legal services by assuring the clients that the statements made with
their attorneys will not be disclosed to third persons including the court.
b) Doctor-patient privileges
• The aim of the law with respect to the physician-patient privilege is
sometimes, although not universally, extended to cover matters in the
doctor’s such as information obtained by the doctor concerning the
patient from other doctors and hospitals, physicians’ uncommunicated
opinions, facts observed by the doctor, communications by the doctor to
other doctors, and communications passing from the doctor to the
patient (as well as the reverse).
Chapter Four Cont…
c) Marital privileges
• The ancient common law in competency of one
suppose to testify for or against the other in legal
proceeding eventually eroded in to least two (and
possibly three) bread privilege principles: f irst, the
confidential marital communications privilege, and
second, the privilege not to testify against one’s
spouse (which may be treated as including a third,
the privilege to prevent adverse spousal testimony
against oneself).
Chapter Four Cont…
4.8.2.4. Other privileges
• A number of jurisdictions have some form of clergy, journalist,
and/or accountant privileges.
• P e rhap s i t al so woul d b e d e si rab l e to f oste r the work
environment by a boss-secretary privilege, or to create a
researcher-subject privilege, or for that matter, a” friend
“privilege that would result in nondisclosure of conf id ences
among close friends. The policy of limiting the extent to which
privileges defeat the truth-seeking function, as well as the
dif fic ulty of def ining them, have led most states to reject the
better examples.
 Chapter Five
CHAPTER FIVE: REAL EVIDENCE
5.1. Introduction
• Once what facts may be proved is clear to the concerned party
(plaintiff or defendant in civil cases and prosecutor or accused
in criminal cases), the next step is to f ind a mechanism on how
to prove and convince the court using evidence.
• Oral evidence or testimony of witnesses is just one mechanism
of proof discussed in the preceding chapter.
Chapter Five cont…
• This chapter outlines the second mechanism of proof:
real evidence. Unlike oral evidence for which the court
depends on observation of third parties (witnesses) on
ascertaining whether a certain fact does or doesn’t
exist, the courts direct observation and inspection is
called in proving existence or non-existence of facts in
issue by real evidence.
• Hence, real evidence is a type of evidence for which the
court can personally inspect and make inferences and
conclusions on the existence or non-existence of fact
to which the evidence is sought to prove.
Chapter Five cont…
• real evidence comprises of documents and physical objects in
various forms.
• Not all documents and physical objects are real evidences to
prove a fact unless they satisfy the tests of authentication and
corroboration, respectively.
5.1 Demonstrative/Physical evidence
• Concerned with any type of physical objects which are capable
of being inspected by the court and demonstrate the existence
of a fact in issue.
• is any evidence introduced in a trial in the form of a physical
ob j e c t, i nte nd e d to p rov e a f ac t i n i ssue b ase d on i ts
demonstrable physical characteristics.
Chapter Five cont…
• In a murder trial for example (or a civil trial for assault), the
physical evidence might include DNA left by the attacker on
victim’s body, the body itself, the weapon used, pieces of carpet
spattered with blood, or casts of footprints or tire prints found at
the scene of the crime.
• May also include photos, x-rays, videotapes, movies, sound
recordings, diagrams, maps, drawings, graphs, animations,
simulation, and models.
• Where physical evidence is of a complexity that makes it dif ficult
for the average person to understand its signif icance, an expert
witness may be called to explain to the cour t the proper
interpretation of the evidence at hand.
Chapter Five cont…
• To be admissible, a demonstrative exhibit must “fairly and
accurately” represent the real object at the relevant time.
• Melvin Belli and Earl Rogers helped change that by introducing
more demonstrative evidence. Scientific evidence emerged in
the 1960.
• Almost anything “visual” (“sound “still enjoys certain f if th
amendment protections ) can be presented in modern courts
(under certain rules) and the effects are dramatic since people
retain 87% of what they see and only 10% of what they hear.
Exhibits generally fall into one of two categories (1) real
evidence; or (2)demonstrative evidence.
Chapter Five cont…
a) Real evidence: is evidence that, in a sense, speaks for itself, as
when the prosecutor holds up a bag containing the murder
weapon, asks the police officer “is this the weapon you found?,
a nd t he n e nt e rs i t a s “ E x hi b i t A ” . E v e n t ho ug h i t i s
authenticated by a witness, real evidence is separate, distinct,
and doesn’t rely up on a witness’ testimony.
• It has the weight of being additional evidence and can serve
many purposes.
b) Demonstrative evidence: is evidence that illustrates or helps
explain oral testim ony, or rec reates a tangible thing,
occurrence, event, or experiment.
Chapter Five cont…
• Scientif ic evidence falls into this category, as when a
toxicologist testifies that the victim died of lead poisoning and
refers to a chart of the human body showing the circulatory
pathways that the toxin traveled.
• Here is a list of illustrative facts used as demonstrative
evidence: Plaster cast or mold; Scale models; Maps, charts,
diagrams, and drawings ; Police composites, mug shots,
ske tc he s ; P hotog rap hs ; Mi c rosc op i c e nl arg e m e nts ;
Videotapes; Computer reconstruction or animation; Scientif ic
tests or experiments.
Chapter Five cont…
5.1.1. General rules in Demonstrative Evidence
a) The most general rule is that there must be some other piece
of evidences: a fact, an object, or testimony that needs to be
illustrated or demonstrated. Presentation is actually a two-
stage process: first some issue of fact, then the explanation or
demonstration stage. Demonstrative evidence is intended to
be an adjunct/extra to testimony.
b) The next most general rule involves the foundational
requirements for demonstrative evidence. Certain preliminary
steps must he followed such as authentication and accuracy.
Chapter Five cont…
• This is known as “laying the foundation” and is mandatory
whenever any scientif ic expertise is about to be forthcoming.
Foundational requirements (other than those dealing with the
expertise of the person) usually involve:
 Authentication:- demonstrative evidence should convey what it
is meant to convey. What it conveys must not alter, distort, or
change the appearance or condition of something in any
significant way.
 Representational accuracy፡- the demonstrative evidence
should fairly depict/show the scale, dimensions, and contours
of the underlying evidence. A photograph or chart with some
sm all section of it enlarged to focus in on is probably
inadmissible.
Chapter Five cont…
•This is followed rigorously whenever
comparisons (such as between two samples of
handwriting) are made so that any lay person
compare the evidence.
 Identif ic ation:- the demonstrative evidence
must be an exact match to the underlying
evidence o r the tes tim o ny illus tra ted . For
example , an expert witness is about to testify
using an enlarged photograph (to scale) clearly
showing the outline of a footprint with a unique
manufacturer mark on the bottom of it.
Chapter Five cont…

c) The next most general rule is that demonstrative

evidence must pass the “three hurdles” of admissibility:
relevancy; materiality; and competence.
d) The last most general rule is that demonstrative
evidence must pass an additional balancing test for
relevancy a weighing of what is probative/ prejudicial.
Probative is what is relevant to “cinch/certainty” the
case for the prosecution by anticipating all defenses.
Prejudicial is whatever inf la mes the passions and
prejudices of the jury.
Chapter Five cont…
5.1.2. Specific rules in Demonstrative Evidence
• These are more like guides to judicial discretion than specif ic
rules, and involve established practices or procedures for the
presentation of various types of demonstrative evidence. In this
respect, practices may vary considerably by jurisdiction.
 Plaster/display casts, molds, and models:- these are most
admissible when viewable in all dimensions. Three- dimensional
is always better than two-dimensional.
 Maps, diagrams, sketch, and charts:- it’s generally not
important that the original creator of a map testify; only that
whatever used is “official”.
Chapter Five cont…
 Photographs:- the broad use of photographs is permitted. The
photo must substantially and accurately depict/show the
subject matter, and not be unduly prejudicial/harmful.
 Enlargements:- some courts place limits on the magnif ication
allowed, no more than twenty powers.
 Videotapes:- videotaped depositions and confessions are
becoming common, and in civil cases, the practice of a “day-in
–the –life “video is often admitted.
 Computer reconstruction:- Reconstructions are a fast-growing
forensic specialty, and the expertise involves a projection of
possible outcomes mathematically predicted by a computer
program.
Chapter Five cont…
 Scientif ic tests/ demonstrations:- if a laboratory test is
performed in front of the judge and jury, the benefit is that jurors
would be allowed to draw independent inferences from it rather
than being warned by the judge later that they are free to
disregard the scientific testimony.
5.2. Documentary evidence
• Document is def ined in the draft evidence rules as any matter
expressed or described upon any substance by means of letters
f igures, marks, or by more than one of those means, intended to
be used, or which may be used, for the purpose of recording
that matter.
• Documentary evidence is also def ined by the draft evidence
rules as all documents product for the inspection of the court.
Chapter Five cont…
• Documentary evidence is a type of written proof that is
offe r e d at a tr i al to e s tab l i s h th e e x i s te n c e or
nonexistence of a fact that is in dispute.
• Letters, contract, deeds, license, certif ic ate, ticket, or
other writing is documentary evidence.
• Besides exploring the meaning and application of
documentary evidence, the following excerpt will
highlight on the basic differences of documentary and
physical evidence, a seemingly simple but complex
distinction.
Chapter Five cont…
 A piece of evidence is not physical evidence if it
merely conveys the information that would be conveyed
by the physical evidence, but in another medium. For
example, a diagram comparing a defective part to one
that was properly made is documentary evidence-only
the actual part, or a replica of the actual part, would be
physical evidence. Similar, a f il m of a murder taking
place would not be physical evidence (unless it was
introduced to s how that the v ictims blood. Had
splattered on the f ilm), but documentary evidence (as
with a written description of the event from any
eyewitness).
Chapter Five cont…
 A piece of evidence is not documentary evidence if it is
presented for some purpose other than the examination
of the content of the document. For example, if a blood-
spattered letter is introduced solely to show that the
defendant stabbed the author of the letter from behind as
it was being written, then the evidence is physical
evidence, not documentary evidence. However, a f il m of
the murder taking place would be documentary evidence
(as a written description of the event for an eyewitness).
If the content of that same letter is then introduced to
show the motive for the murder, then the evidence would
be both physical and documentary.
Chapter Five cont…
 A piece of evidence is not documentary evidence if it is
presented for some purpose other than the examination of the
content of the document. For example, if a blood-spattered
letter is introduced solely to show that the defendant stabbed
the author of the letter from behind as it was being written, then
the evidence is physical evidence, not documentary evidence.
H o w e v e r, a f il m o f the m urd e r taki ng p l ac e w o ul d b e
documentary evidence (as a written description of the event for
an eyewitness). If the content of that same letter is then
introduced to show the motive for the murder, then the evidence
would be both physical and documentary.
Chapter Five cont…
 Documentary evidence is any evidence introduce at a trial in
the from of hard or soft (electronic) documents. Although this
term is most widely understood to mean writing on paper (such
as an invoice, a contract or a will), the term actually include any
media by which information can be preserved, photographs,
tape recording, f il m, and printed emails are all forms of
documentary evidence.
 Documentary evidence is subject to specif ic forms of
authentication, usually through the testimony of an eyewitness
to the execution of the document, or to the testimony of the
witness who able to identify the handwriting of the purported
author.
Chapter Five cont…
 Documentary evidence is also subject to the best
ev i den c e r u l e, wh i c h r equ i r es th at th e or i gi n al
document unless there is a good reason not to do so.
The above meaning and difference of documentary
evidence is subject to the rule of authentication for it
admission as proof in a cour t. There are various
method of authentication both in our substantive and
p r oc e d u ral l ow s an d th e d raf t e v i d e n c e r u l e s .
Authentication is a mechanis m of as cer taining
authorship of the document (who author of a document
is?) and genuineness of the document sought to be
introduced. Unless a documented is authenticated it
may not be admitted as proof.
Chapter Five cont…
5.3 Authentication of Documentary Evidence
• Doc um entary ev idenc e is subj ec t to spec if ic form s of
authentication for its reliability, usually through the testimony of
an eyewitness to the execution of the document, or to the
testimony of the witness able to identify the hand writing of the
purported author.
• There are various method of authentication both in our
substantive and procedural laws and the draft evidence rules.
Authentication is a mechanism of ascertaining authorship of the
document (who author of a document is?) and genuineness of
the document sought to be introduced.
• Unless a documented is authenticated it may not be admitted
as proof.
Chapter Five cont…
5.3.1 Modes of authentication
a) admission of authorship by the writer
• The writer him self may admit or concede that he is the author
of a certain document and if this admission is a formal
admission it will serve as a conclusive proof to the issue of who
the author of the document is? Consult articles 2007 and 2008
of the civil code on proof in relation to contracts.
b) Proof of signature or handwriting
• The following rules in the Ethiopian draft evidence of 1967
provides mechanisms how signature in documents and
handwritings in issue to be proved.
Chapter Five cont…
• If a document is alleged to be signed or to have been written or
in part by any person, the signature or the handwriting of so
much of the document as is alleged to be in the person’s
handwriting must be proved to be in his handwriting.
• Production of a person or persons who witnessed the writing or
signature: persons who have observed or witnessed or
witnessed a certain document be writing by some one the
persons may be called to ascertain the author of a specif ic
document.
• Attesting witnesses: certain documents are required by law (for
example article 1727 (2) of the civil code) to be attested by
witnesses whose signature will be included in the document.
Chapter Five cont…
c) Presumption as to documents not produced
• According to Rule 74 of the DER, courts shall presume that
every document called for and not produced after notice to
produce was attested, Stamped, and executed in the manner
required by law.
d) Comparison of signature /writing with others admitted or
proved
• Another mechanism of authentication is to compare the
writings or signature of the contested document with other
writing proved to be authored or signed by the same person.
e) Opinions of experts
• Authentication by expert witnesses refers to proof of authorship
depending on the opinion of a person who has specialty on
identifying the writing of persons. These persons are called
expert witnesses for they form conclusions based on inferences.
Chapter Five cont…
5.4. Best evidence rule
• Authentication alone is not a suf fic ient for the admission of
documentary evidence as proof but must also be qualif ied by
the best evidence rule, which states the contents of a document
can only be proved by adducing the original document itself.
• There is an exception. If the original document is unavailable for
reasons other than serious misconduct of the proponent,
secondary sources of evidence (such as oral testimony) can be
used in place of the original.
• What is the Justification for best evidence rule?
Chapter Five cont…
5.5 Proof of contents of documents
• Rule 53 of the draft evidence rules stats that the contents of a
document may be proved either by primary evidence (this is the
best evidence) or by way of exception that secondary evidence
may be used to prove the content of a document.
• Secondary proof as means of proof of contents of a document
is employed in limited circumstances as outlined in rule 56 of
the draft evidence rules.
Chapter Five cont…
• The civil code, especially in relation to proof of contracts,
provides how the contents of a document shall be proved in as
almost similar fashion with the draft evidence rules.
• Authentication alone is not a suf fic ient for the admission of
documentary evidence as proof but must also be qualif ied by
the best evidence rule, which states the contents of a document
can only be proved by adducing the document itself unless the
original could not be found.
 CHAPTER SEVEN
BURDEN AND STANDARD OF PROOF
6.1. Introduction
• Whenever Litigation (be it Criminal or civil) arises between
parties and denies each other there obviously a need for
evidence in support of a relief sought.
• This means, there is a burden of producing of suf fic ient and
persuasive evidence. But before proceeding to the issue as to
who shall bear burden of proof, it is logical to look for what
burden of proof mean.
• Thus, Burden of proof refers to the obligation to prove
allegations, which are presented, in a legal action.
Chapter Seven Cont…
• burden of proof refers to an obligation in a particular context to
defend a position against a prima facie other position.
• That is, on the other hand, when an issue arises out of a case
such issue has to be proved by the party who has burden of
proof and who is to avail ultimately from the proof.
• Thus, for every issue there is burden of production, burden of
going forward with Evidence, and burden of persuasion,
Discharging or preventing the discharge of these burdens is the
goal of introducing evidence.
Chapter Seven Cont…
• A particular burden may be on one party as to some issues and
on the other party as to the other issue in the same case, even
as to one particular issue both burdens (burden of production
and persuasion) may not lay on the same party.
• Further more, the burden of production may shift from one party
to the other during the course of the trial. What this means is
that as evidence is introduced, f irst one party, second the other
may run the risk of directed verdict or equivalent ruling if he
allows the state of the evidence to remain as it is.
Chapter Seven Cont…

• “ The party up on whom this risk rests is said to have

burden of ‛going forward with evidence’ i.e. of producing
evidence."
• Steve Uglow point out that, the burden of proof has
been described as whose task is it to establish of a fact?
How ever; there are preceding questions namely ‘what
fact’ and why does that fact have to be established?
Chapter Seven Cont…
6.1 Meaning and concept of burden of proof
• Uglow, def ines, burden of proof has been described as whose
task is it to establish a fact. This def inition seems to def ine the
phrase in terms of burden of persuasion with out giving regard
to burden of production.
• Black’s law dictionary, however, def ines the phrase as “ The
obligations of a party to establish by evidence a requisite
degree of belief, concerning a fact in the mind of the trier of the
fact or court”
• Burden of proof is a term, which describes two different aspects
of burdens, burden of production and burden of persuasion.
Chapter Seven Cont…

6.1.1 Burden of production

• A party who has a claim or an allegation bears
the burden of producing evidence to enable the
court believe that there is an issue in the case.
• Burden of production of evidence determines
whether or not the person who shoulders the
burden of production will lose the case.
Chapter Seven Cont…
6.1.2 Burden of persuasion
• This type of burden of proof is the second burden that litigant
party bears.
• This is determined by rules of substantive laws.
• This burden is simply adducing enough evidence to raise an
issue must be distinguished from the burden imposed on a
party to persuade the trier of fact to f in ed for him/her any
particular issue. This burden of persuasion, beyond reasonable
doubt in criminal cases and by preponderance of Evidence in
civil actions.
Chapter Seven Cont…

6.1.3 Burden of proof under the evidence law of Ethiopia

• In both civil and criminal laws of Ethiopia, like in other countries,
there is the notion of production of evidence and burden of
persuasion there of.
• However, as Melin has stated, “courts in Ethiopia consider
burden of proof to mean burden of production only and on other
times burden of persuasion only, and some times it refers to
both burdens.”
Chapter Seven Cont…
a) Burden of proof in civil actions
• The burden of proof under civil law of Ethiopia is dependent up
on the issue to be proved or the allegation (claim) raised by the
party. It is to mean that as the issue in a case varies the burden
to proof shifts from one party to the other.
• Where the plaintiff is entitled to begin the proceeding, he/she is
the one to prove the issue so that he/she bears the burden of
proof.
• A. Sedler states that the general rule is that the party who has
burden of proof has the right to begin. The contrary reading of
this statement is that, the party who is entitled by law to begin
the proceeding shoulders the burden of proving the issue in the
case.
Chapter Seven Cont…
• Provisions of the civil code The party who has
burden of proof
• Art. 5/1/, The plaintiff
• 783 The defendant(father)
• 2081, The defendant (owner)
• 1055/1/, The plaintiff(creditor)
• 1317, The defendant
(usufruactory)
• 553 The defendant(employer)
• 2141, The plaintiff(victim of a
damage)
• 2285(3), The defendant(seller)
Chapter Seven Cont…
• 2001, The plaintiff( demanding
performance of contract
• 2776/2/, The defendant (borrower)
• 2400/3/, The defendant ( seller)
• 2807(2), The defendant (warehouse)
• 2942, The defendant (lessee)
• 2970, The defendant (lessee)
• 2706, The defendant (owner)
• 2447, The plaintiff (in donation case)
• 896, The plaintiff( in case of will)
• 2086, The defendant (abnormal risk
case)
• 321(3) The plaintiff (bad faith claim)
Chapter Seven Cont…
i ) Burden of Production in civil cases
• Burden of production is adducing evidences to make a case.
• Art 259(1) of the civil procedure code provides that the burden
of producing evidence in support of a claim is imposed on the
plaintiff.
• While sub- article 2 of the same provision imposes burden of
production of evidence on the defendant.
• This article clearly stipulates that both the plaintiff and the
defendant shoulder burden of production of evidence on the
same case proving facts oppositely.
Chapter Seven Cont…

• This is to mean that the plaintiff has burden of

producing evidence on the cause of action. And the
defendant does so on the grounds of his defense or on
facts of his counter claim.
• Both the plaintiff and the defendant bear the risk of their
failure to produce evidences to prove their respective
interest.
ii ) Burden of persuasion in civil cases
• Melin points out that burden of persuasion are burden
of establishing the fact in the mind of judges by
preponderance of evidence.
Chapter Seven Cont…
• The burden of persuasion differs in civil and criminal cases.
• In civil case the litigant is expected to convince the court by
producing preponderance of evidence.
• Where as in criminal case there by producing evidence and
convincing the tier of fact /court/ beyond reasonable doubt.
• The plaintiff has burden of persuasion at least as to elements of
his cause of action.
• The defendant again has burden of persuasion as to the ground
of his defence so that he can rebut the evidence produced by
the plaintiff.
Chapter Six Cont…
b) Burden of proof in criminal cases
• In criminal proceedings the prosecution has burden of
poof on the elements of his charge.
• Black’s law dictionary states, “in criminal cases the
government has burden to prove the elements of the
crime;” such an expression is provided under art 136(2) of
the criminal procedure code of Ethiopia.
• This article provides that the public prosecutor shall then
call his witnesses, which indicates burden of proof in
criminal cases normally lies on the prosecution.
Chapter Six Cont…
• Article 20(3) of the FDRE constitution also imposes
burden of proof on the public prosecutor tacitly there by
providing presumption of innocence for the accused.
i ) Burden of Production in criminal cases
• Burden of production refers to Burden of going forward
with evidence on a particular issue. This refers to
burden of producing evidence and burden of
proceeding with the evidence on a particular issue at
start of a case.
Chapter Six Cont…
• As the public prosecutor has/burden of production of evidence
he/she bears the risk of non-production. Art 141 of the criminal
procedure code provides to this effect i.e. when the case for
prosecution is concluded, and if the court f inds that no case
which would warrant conviction against the accused has been
made, it shall record an order of acquittal.
• However, where the prosecutor makes a case against the
accused, the defendant /accused/ has burden of producing
rebutting evidence as clearly provided under Art 142 of the
criminal procedure code.
Chapter Six Cont…
ii ) Burden of persuasion in criminal cases
• producing an evidence on an issue in a case is not an end by
itself unless other wise the prosecutor /any party having burden
of persuasion) can persuade the trier of fact /the court/ beyond
reasonable doubt. Hence, burden of persuasion pertains to
establishing the fact in the judge’s mind beyond reasonable
doubt.
6.2 Standard of Proof
• Standard of proof is an important concept required to be met by
the party who has burden of persuasion.
Chapter Seven Cont…
• In order the court be satisf ied with the evidence produced and
be in a position to render its verdict, the concerned party should
meet the degree of proof required by legally accepted principles.
In Civil Cases
• Balance of probabilities, also known as the preponderance of
the evidence, is the standard required in most civil cases.
• Clear and convincing evidence is the higher level of burden of
persuasion sometimes employed in the U.S. civil procedure.
Chapter Seven Cont…
In Criminal Cases:
• In criminal cases the guilty of the accused must be proved by
the so called standard of ‘beyond reasonable doubt’.
• This is the standard required by the prosecution in most criminal
cases within an adversarial system and is the highest level of
burden of persuasion.
• This means that the proposition being presented by the
government must be proven to the extent that there is n
o "reasonable doubt" in the mind of a reasonable person that the
defendant is guilty.
Chapter Seven Cont…
• underlining rational for the requirement of high standard of
proof in criminal proceeding is that:
• The existence of presumption of innocence
• The unbalanced position of the parties in criminal cases unlike that of
civil cases
• The irreversible grave nature of criminal punishment, if once
erroneously executed i.e. in order not to punish innocent.
Students are expected to read materials
in relation to chapter six which is all
about Forensic Science and Crime
Investigation
 CHAPTER SIX

6. FORENSIC SCIENCE AND CRIME INVESTIGATION

6.1. The Meanings, Goals, and Historical Development of Forensic Science
6.2. Sub-fields of Forensic Science
6.3. Protecting, Investigation and Examination of Crime Scene
6.3.1. Documenting the Crime Scene
6.3.2. Videotaping the Crime Scene
6.3.3. Photography the Crime Scene
6.3.4. Crime Scene Sketching
6.4. Collection and Preservation of Evidence
6.5. Fingerprints and DNA Evidence
6.5.1. Meanings, Principles and Historical Developments of Fingerprint
6.5.2. Types and Individuality of Fingerprint
6.5.3. DNA and its Application in Justice system
 Chapter Six cont…

6.6. Blood and other Body Fluid Evidences

6.6.1. Blood as a Physical Evidence
6.6.2. Species Identification
6.6.3. The Discovery of ABO Blood Groups
6.6..4 Paternity
6.6.5. Semen as Physical Evidence
6.7 Ballistics and Trace Evidence
6.8 Investigation of Arson and Explosive
6.9 Medico-legal aspects of Death and Toxicology
Thank you very much!!!