By Elias Kasa- (LLB, LLM)- judge and Trainer

at Oromia Legal and Research Institute.

https://t.me/eluLaw
 Home Of Laws.
https://t.me/eluLaw
What do you
expect
from this
course?
 Contents and Organization:
• Meaning, purpose and nature of evidence law
• Development of evidence
• Evidence in civil and common law legal system
Chapter 1- • Evidence law in Ethiopia
Evidence Law General • Evidence in civil and criminal cases
Introduction
• Classification of Evidence
 Chapter 2-Proof Without
Need to Establish Evidence
Admission of facts
Presumptions
Judicial Notice
Chapter 3-Relevance and Admissibility
• Relevant fact (Relevancy and admissibility)
• Facts relevant to facts in issue
• Relevancy of circumstantial evidence
• Relevancy of character evidence
• Relevancy of criminal conviction in civil cases
• Relevancy of similar occurrences
• Relevancy of statements made under special circumstances
• Relevant but inadmissible facts
•
 Chapter Four: Oral Evidence

Examination of witnesses
Competence of witnesses
Test of competence
Grounds in competence
Hearsay
Exclusionary rules: Privileges
 • Demonstrative evidence
• Documentary evidence
• Role of Evidences in Providing the
Chapter 5- Criminal /Suspect/ and Guilt
• Best evidence Rule
Real Evidence
 • Documenting the Crime Scene
• Videotaping the Crime Scene
Chapter 6- • Photography the Crime Scene
Forensic Science • Crime Scene Sketching
and Crime • Collection and Preservation of Evidence
Investigation
• Fingerprints and DNA Evidence
• Blood and other Body Fluid Evidences
 • Burden of proof
Chapter 7- • Standard of proof: General
Burden and
Degree of Proof
 Chapter 1-
Evidence Law General Introduction
1. Meaning of Evidence
Evidence is derived from the Latin word `evidentia‟ meaning:-

to show clearly

to make clear to the sight to discover clearly

to ascertain or to prove

Evidence has been defined in different ways. Examples are;
Evidence is something, which serves:-to prove or disprove the
existence or non-existence of an alleged fact.
Evidence is; the means of satisfying the court of the truth or
untruth of disputed facts.
it is also the foundation of proof.
 Definition of scholars
Taylor defines evidence as: All legal means, exclusive of mere
argument, which tend to prove or disprove any matter of fact;
the truth of which is submitted to judicial investigation‖

Philpson states that : Evidence means the testimony, whether oral,

documentary or real( physical evidence such as knife, gun..),
which may be legally received in order to prove or disprove some
facts is dispute.(What about presumption?)
According to Cross: Evidence is the testimony, hearsay,
documents, things, and facts, which a court will accept as
evidence of the facts in issue in a given case.

Aguda states: Evidence is the means by which facts are

proved but excluding inferences and arguments
Black’s law (evidence)....
• Evidence is something (including testimony, documents, and tangible
objects) that tends to prove or disprove the existence of an alleged fact.
• “…..the term „evidence‟ includes all the means by which any alleged matter
of fact, the truth of which is submitted to investigation, is established or
disproved.
• „Evidence‟ has also been defined to mean any species of proof legally
presented at the trial of an issue, by the act of the parties and through the
medium of witnesses, records, documents, concrete objects, and the like.
The 1967 Draft Evidence Rules (DER) defines evidence,

―A means where by any alleged matter of fact, the truth of which is

submitted to investigation, is proved or disproved and includes statements
by accused person, witnesses, admissions ,judicial notice presumption of
law and ocular observations by the court in its judicial capacity ‖ Taken
from India- not full definition (doesn‘t include documentary evidence)
Criminal procedure and evidence law (final draft)- “ማስረጃ”
ማለት በጭብጥ የተያዘን አግባብነት ያለውን ፍሬ ነገር ለማስረዳት
ወይም ለማስተባበል የሚያስችል ማንኛውም ነገር ወይም ሂደት ሆኖ
በምስክር የሚሰጥ ቃልን፣ ሰነድን፣ የኤሌክትሮኒክ መረጃን፣ በሕግ
የተወሰደ የሕሊና ግምትን፣ ፍርድ ቤት ግንዛቤ የሚወስድበትን ፍሬ
ነገር፣ የአንድ ነገርን ሂደት ማሳያ ሲሆን ኤግዚቢትን ያጠቃልላል፡፡
 What is law of evidence?
• When we come to the definition of law of evidence, there is no one size fit
all definition. Generally the law of Evidence relates to:
What facts need to be proved and produced and what facts need not be
proved to the court
Who may prove / Which of the parties have the burden of proof
How to prove such facts
The required standards of proof to win the case
Relevancy, Admissibility, Credibility and weight of evidence….
 Take for example an aggravated Homicide case

Evidences:
Witness
Confession
Exhibits ( dagger, a cloth stained with blood..)
Expert testimony which warrants the cause of the death of the deceased
All this are evidences that are very relevant to proof whether a crime of
aggravated homicide is committed or not
 2. Nature of Evidence law
• Where is the place of Evidence of Law?
Laws may broadly be classified in to Substantive and Adjective
The first defines right and duties while the later deals with the manner
of enforcing the rights and duties defined
Adjective laws :- Law of Evidence and Procedural Laws ( both criminal
and civil procedure)-means to end laws. To enforce substantive rights
and duties.
 There are arguments:
• The first argument : THE LAW of Evidence should be incorporated under
procedural laws because Similarity in purpose which means both are the means to
an end
• The second argument : The mere fact that law of evidence is a means to the
enforcement of substantive law does not make it fall under the category of
procedural laws
• There are certain issues procedural laws never address and are left to evidence law
Eg.the standard of proof, facts to be proved or need not be proved and the value
to be given to each term of evidence, relevancy, admissibility etc
 Discussion

• WHICH LINE OF ARGUMENT IS MORE

TENABLE? WHY/WHY NOT?
 Remark
Evidence law is not strictly speaking procedural law,

however it 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 within the general category of

Adjective laws, which deal with the enforcement of the
substantive law.
However, all nations does not have their own code of evidence, which
can be considered as one sect of Adjective law.

For instance, our country Ethiopia does not have evidence code.

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.
Q. Dear students, is law of evidence more of practical course? 5
minute

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

knows theoretically when he becomes a practitioner. Do you
agree with this statement?
3. Purpose /significance of Evidence/Evidence
law.

List some of the significances of evidence and

evidence law?
 Significance of evidence
It is used as a tool to determine whether a disputed issue is true or
false, or whether it is an instrument to the court to confirm or refute
the existence or non-existence of the outcome.

To save costs

Ensure that a decision is made as soon as possible

Generally it makes for a strong justice system.

 Significance of evidence law
Evidence Is the ―Key‖ which a court needs to render a decision.
Provides the court with information
 Regulates the process of proof
Helps to achieve accelerated, fair and economic justice
It may protect public interest by preventing the truth from being
discovered.
 protect the accused's right to a fair trial. Eg, prohibiting evidence of
defendant’s character and previous conviction (see Art 138 of cr.p.c and
Rule-145 of DER)
 Evidence in civil and common law legal
systems
• There are two major legal systems (legal traditions) in the world.

(1) The Anglo - American ( the common law legal system).

(2) The continental (the civil law legal system).

Q. Is there a difference between the two legal systems regarding

evidence rules?
 A. Organization of the rule of evidence:

The common law legal system, have separate rules of evidence

The rules determine what evidence is admissible and what evidence

is not admissible.

The continental system have no separate code of evidence law.

 B. Difference regarding the sources of evidence rules :

Common law legal system have Separate code of evidence law enacted
by the law-making organ.
they have also judge made evidence rules due to the existence of the
precedent system.
But in civil law evidence law are sparsely distributed in both
substantive and procedural laws. But enacted by parliament only(
Ethiopia procl. 1234/2013-cassation decision-
 C. The difference regarding the system of inquiry
The common law countries employ the ''Adversarial system'' of evidence
gathering. An adversarial trial provides a forum in which two parties
present competing version of the truth. It is a party-lead system judges
listen the evidence Presented and decide.(passive role of judges)
Control in the adversarial process rests with the parties. For this reason,
the role of the advocate in the presentation of evidence can not be
underestimated.
The parties' legal representatives collect the evidence and decide what
evidence should be presented and how it should be presented
 The civil law system employ the ''inquisitorial system'' of inquiry
The court has the task of making inquiry. It question witnesses,
directs the police investigation, commission the service of expert
witness and examines all relevant evidences.
The role of the advocate is considerably less. Ensure his client a fair
trial by checking that correct law is applied and that procedural rights are
respected.
The judge obtains most of the evidence through the process of
questioning witnesses.(Active role of judges)
 D. The differences on the types of evidences they
emphasized

In common law legal system, the greatest weight is attached to oral
testimony of the parties and witnesses.

 The physical presence of the witness affords the judge the

opportunity of observing the witness demeanor.(Character)

 Documentary evidence is generally regarded as being inferior to

oral evidence.
 E. witnesses of parties in their own case
 In common law legal systems, parties themselves are competent
witnesses in their own case. Here, the defendant who chooses to plead
not guilty puts the prosecution to proof of its case.
 The defendant is a competent witness in his own defense and may
therefore choose whether or not to give evidence on oath.
They give great place for oath. Specially in England keeping one‟s
word have a great place.
Juries considers that hearing witness results presenting the person
in court which is useful for testimony because it brings about
physical observation of the person, observation of his emotions,
and notice of something on his face.

However, in civil law system, in accordance with the general view it

is considered best if no one is a witness in his own case.
In civil law system it is not right to have a person present as
a witness in his case. Every person is certainly useful to
himself. Even his family and people living with him,
including the maid, cannot be witnesses. since these people
are supposed to be helping him.
 F. Admissibly of hearsay evidence?
 The oral evidence must be direct in common law legal systems.
in common law legal system since they give higher recognition for oral
evidence hearsay evidence is acceptable evidence.
In hearsay evidence, there is no test of accuracy which enables the
opponent party in checking whether or not the witness is speaking the
truth, like cross- examination and physical presence of the real
witness. Absence of oath, absence of testing his behavior etc
Since, it is the right of the accused to confront his or her accusers.
In civil law system hearsay evidence it may be exceptionally
admissible. they didn‘t give high place for this type of evidence.

Q. How about in Ethiopia? See art. 137(1), cr pc, 261(1) civ.
Pro.co

And Cassation number 113464 vol 19 decided to be admissible. But

it is better to see with Art 20(4) of constitution-right to cross
examine(criminal matters)
Evidence in Ethiopia
Do you think Ethiopia has a separate code of
evidence?
Ethiopia do not have a separate and codified law of evidence.
 Rather our evidentiary rules are found in scattered throughout our
substantive laws such as the criminal law, private laws you find in
the civil code, commercial code, family law etc.
we have a number of evidence rules scattered throughout our
substantive laws like the Articles on proof of marriage, proof of
will, proof of contract, proof of ownership…
Procedural law mainly the criminal procedure and the civil
procedure.
Ethiopians draft evidence rules basically copies the Indian evidence act
with certain interesting twists of its own, particularly by way of omission.

 In Ethiopia, for more than forty years this draft evidence rules have been
in use for academic purposes.

But nowdays Draft Criminal law Procedure and Evidence Code is

under enactment.
 Sources of Ethiopia‟s Evidence Rules
1. The evidentially rules which are found scattered through out our substantive, Procedural
and other proclamations.

 C.C Art .2001-burden of proof for performance, 2003, 2005(1)-(form-written-need to

produce such document), Civ.pro. Art.136 (expert witness- e.g Land office), 138-
rejecting evidence, 261-witness on own cases, Cri.pro Art 137(facts which are
relevant…), 142(bringing defence) 143(additional witness (name appear or not
appear), 145(evidence from other place)

 Corruption procl. No; 881/2015, 434/2005 fi 882/2015 (revised rules of evidence),

Prevention and Suppression of Terrorism Crimes Proclamation No.1176/2020
2. Modern and internationally accepted principles of evidences have
been in use in our courts just to fill the existing gaps found in out
substantive and procedural laws. Such as ―fact in issue need to be
proofed by evidence” ―presumptions‖ ―circumstantial evidence‖
3. Case laws are also considered as the third source of evidence rules
in Ethiopia.( CassatioN decisions-Procl. No 1234/2013 Art 10(2)-
binding from day of judgment not only publication)

Now days published vol 1-25 and bundle of unpublished decisions are
binding specifically concerning interpretation of evidence rules.
Vol. 10 file No- 51706- It violates the internationally accepted
principle of Evaluation and Testing of Evidence Reliability that a
piece of evidence should be examined and evaluated in its entirety
and not by taking only the part of the evidence that supports the
prosecution.(by citing source of others country evidence law)
Vol 12 file numb. 14981- It based its judgment on the assessment
of witness and expert evidence based on the principles of evidence
law in other countries. It concludes that expert evidence is not a
conclusive evidence.
 Evidence law in civil and criminal cases.
1. Parties
 The civil case is one instituted by individual for the purpose of securing redress
for a wrong, which has been committed against him, and if he is successful he will
be awarded money or other personal relief.
 While, a criminal prosecution is instituted by the government for the purpose of
securing obedience to its laws by the punishment or correction of the lawbreaker.
 Therefore, the existence of difference regarding the strictness's of the evidentiary
rule applicable on those two cases seems proper.
 Differences:
1. State of fair trial

In criminal cases, the law of evidence has protection to the accused in
respect to his right to a fair trial by excluding certain relevant evidences

The court may also exercise its discretionary power to support the
accused's right to a fair trial by excluding potentially relevant evidences.

Example- defendant's bad character or his previous convictions will not

be admitted at trial, (see art 138 of cr.p.c)
While in civil proceedings evidence that is relevant and
probative of a fact, which needs to be proved to the court,
will generally be admissible.

There are no mandatory rules requiring the exclusion of

evidence in civil cases.
Therefore, we can say that the fair trial provision is not as
important in civil case as there is a greater inequality in resources
between the parties in contrast with criminal proceedings in which
the power full government in one side and the weaker accused on
the other side are there.
2. Effect of the judgment

 Losing civil case may result in the claimant or the defendant

suffering serious damage to his financial resources or property, he
will not loss his liberty, life or suffer the same social stigma as a
person who has been convicted of criminal offence.

This is the reason why there is huge difference regarding the

standard of persuasion required in civil and criminal cases.
3. Standard of proof

 The rules relating to the standard of proof determines how much proof is
required for a party to persuade the court.

 The appropriate standard of proof that will have to be satisfied in a criminal

case is heavier than in a civil case.

 In criminal proceeding, the public prosecutor in order to win the case, he is

required to proof, beyond reasonable doubt. While in civil case the standard is
preponderance of evidence or probabilities.
4. Burden of proof
 The general rule in criminal cases is that the prosecution bears the burden of
proving the defendant's guilt and the substantive law defines what the
prosecution must prove in order to convict the defendant. see Art 136 of cr.p.c)
 Everyone charged with criminal offence shall be presumed innocent until
proven guilty according to law. It also reflects an aspect of procedural fairness
in that the prosecution has considerably more resources at its disposal than the
defendants and therefore it should bear the burden of proving the accused guilt.
 Exception to corruption procl. No-881/2007 Art 3 (Vol 24 file Numb.162738)-
intent to obtain unlawful profit-shift burden of proof to defendant
The well established general rule about the incidence of the legal burden
of proof in civil proceedings is that ''he who asserts must prove‖.
To put simply, the legal burden of proving a fact in issue in a civil trial is
on the party that asserts that fact. Therefore, in civil cases, the burden of
proof first lies in the plaintiff.
 However, this burden of proof will shift to the defendant if the
defendant admits the allegations and come up with positive defense like
“force majeure ”. In such case, the burden of proof lies on the defendant
(see Art 258 of civ.P.C)
5. Evidence weight

 In civil cases, most of the claims are raised from contractual, monetary or
proprietary relation ships which could mostly proved by adducing
documentary evidences.

 While due to the very nature of ways of committing a crime, the public
prosecutor mostly proves his allegation by providing an expert and lay witnesses.

 And the crime, which could be proved by documentary evidences, is less in

numbers since they are being committed in a more sophisticated way.
6. Admissibility of admitted evidences

 Every allegations of fact in the statement of claim, if not denied specifically or

by necessary implication, or stated to be not admitted in the statement of
defense, shall be presumed admitted and the court shall give judgment on such
admitted facts. (see Art 83 of civ.p.c, Art 235 and 242 of civ. Pr.code).

 In criminal cases, where the accused says nothing in answer to the charge or
failure to cross-examine, a plea of not guilty shall be entered.

 The silence of the accused does not amounts to admission. (see Art 27, and 134(1)
cr.p.c]. what if the defendant say “yes I am guilty”? 5
minute
7. judicial admissions

 Courts are under obligation to give judgments based on such admission without
requiring the production of additional evidences. (see Art 242 of civ.p.c).

 While in criminal cases, judicial admissions are not conclusive. Of course, when the
accused admits without reservations every ingredient in the offence charged, the court
shall enter a plea of guilty and may forthwith convict the accused.

 However, the court may require the prosecution to call such evidence for the
prosecution, as it considers necessary and may permit the accused to call evidence. (see
art 134 of cr.p.c)
 A. Direct evidence
Direct evidence establishes a fact in issue directly. A fact in issue is
something a party alleges to exist and the other party denies the
alleges.
Direct evidence is provided by witnesses giving oral testimony of
something they perceived with their own senses.
It is also afforded by the presentation of documents, photographs
and the like.
Cassa. Vol 12 file numb. 43453 –It held that expert evidence is

admissible if it is consistent with direct evidence.

Evidence is more convincing than expert evidence if it directly

confirms that a person saw and heard the outcome of a statement.

 2. Indirect evidence
Circumstantial evidence is indirect evidence that tends to establish a
conclusion by inference. It doesn't directly tell you or prove the existence or
nonexistence of the alleged or disputed fact. But when you put them together,
they form a chain leading to a logical conclusion.

Since most of offences are being executed in a very sophisticated manner, it is

difficult to get direct evidence. In such case, the option we have is, proving the
disputed fact by circumstantial evidence.

It may be Hearsay or circumstantial evidence.

 Example
The defendant filed a murder charge alleging that he shot and
killed him;
The fact that the suspect had a fight with the victim the day
before the murder,
That he vowed to kill the victim before the day of the murder,
his purchase of a gun the day before the murder, if there is
evidence that the victim disappeared from the area after the
death and was arrested by the police;
The court is about the concept of mind and Who killed the subject
of death? enables him to reach a conclusion.
Not only when Circumstantial witnesses are presented are they
considered alone.

Circumstantial evidence should not be conflicting. (Shall not

contradict each other).

As it collides, it loses trust worthiness.

Indirect evidence can make the judge emotional and requires

caution. So should be corroborate evidence
 Issue

Is there at least one direct witness or a direct witness

required to prove a criminal case?
 Remark
Cass. Vol 13 File Numb. 75922- There is nothing in the law that
says that only direct evidence that he saw or heard the crime
committed must be presented to prove the commission of the crime.

Therefore, evidence includes evidence presented that directly or

indirectly knows the fact of the dispute.(Crim. Pro. Art 137)
 2.1. Introduction
The general rule in both civil and criminal proceedings is that a party
has the legal and evidentiary burden of proof on a fact in issue.

 However, certain allegation of fact does not necessarily need proof.

There are three exceptions to the general rule requiring evidence to be

adduced as proven with out the need proof.

These are: admission, presumption and judicial notice.

 1. Admitted facts

Q: What is admission? Discuss in group for 5 minutes

Admission is a statement of fact, which waives the
production of evidence by giving way 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 rebutted, the
fact admitted has to be taken as evidence.
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
 Position of Ethiopian laws in using the terms?
 Admission VS Confession.. Interchangeably
 But Admission is broader than confession.
 Our code(English version)- Confession for criminal matters only.(Cri. pro.
Art 35)-
 Admission for both civil(Civ. Pro. Code Art 242) and criminal
matters(Crim. pro.code 134(1)-admits)
 Amharic version for criminal matters(የእምነት ቃል)፣ for civil matters
ማመን. So our laws use interchangeably
 Why admitted facts need no proof?
 When no dispute exists, proof should not be required. The fact ceases to be
in dispute between the parties, and as such, any evidence to prove the fact is
irrelevant.
 In the normal course of things, a person does not make himself liable by
admitting facts against himself unless those allegations are true.
 The courts are required to pass judgment on the the admitted facts as provided
under Art 235(2), 242 of civ.p.c and Art 134(2) of cr.p.c.
Art 134 (1) of cr.p.c used the term ―admission ―in criminal cases by
saying ―when the accused admits without reservation …''.

 Moreover, 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…”
 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.
1. In case of self incrimination
2. In case of co-offenders:
• Does confession made by one of the co-offenders (conspirator)
admissible against the other co-offenders?
a. The effect of confession shall be limited only on such person who
made it.(cassation decision vol 17 file numb. 96310 b/c no due notice
and non informed about their right.
 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.

 It is also a contravention of 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.
The evidence of admission in criminal matters is presented as it
is. It is impossible to testify only to the detriment of the accused.
( see vol 6 – file numb. 96954 )
 Classification of Admission:
formal and informal admissions
 Admission may exist in the form of formal admission, and informal admissions in both civil
and criminal cases.

 Formal admission is an admission of fact given by a party in:

 statement of claim or

 defense or

 a counter claim or

 open court in the first hearing or at the trial.

• In criminal cases a formal admission may be made to a person in authority i.e. to the police
officer (Art 27 of cr.p.c).
 Whereas, an informal admission (evidentiary admission) is the second type of
admission made outside of the court(mostly). B/c exceptionally it may also be
made orally in a witness's answer to a question asked in cross-examination.
 It also be made spontaneously by a person in response to the events given rise to
the cause of action.
 •It is a written or an oral statement made by a party or by a person connected
with the party. And, is most commonly made in a letter, fax or an e mail.
 • Mostly, informal admissions are out-of-court admissions to a person who are
not authorized to accept admissions, for example, to a friend.
Informal admission may be disproved or explained 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.
• 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 explained by other evidences.
 Activity
Ato 'A' is the owner of a factory, which produces specific 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 form 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?
 Types of Admissions: Judicial and Extra- Judicial
a. Judicial Admissions
• 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 cr.pc.
(save the admission given b/4 commissioner).CPC 242,235 CR.PC art
134(1)
b. Extra- Judicial admissions (Evidentiary admission)
• 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.(see Art 27 of
cr.P.c)- made out of court-these are proved and disproved by any
evidence.
Judicial Admissions in civil and
criminal cases
 1. In 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 critical in civil case.
 The reason is, for one thing, they cannot be contradicted &
the court may not require further proof because of less
standard of proof required in civil cases.
 Ways of making judicial admissions: in civil cases

• A. Facts expressly admitted in parties‟ pleadings. (Art 83,242.Civ-p-c)

• A party may admit a fact in statement of claim or in defense or in a
counter claim. 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.
B. Facts admitted by implication (Art 83,235 of civ-p-c
 Admission is not only made by the parties expressly. It may be also made by
implication.

 • 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.
 Moreover, failure to deal specifically 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.
 As we understand form the words of Art 235(2) evasion should not be considered as
admission regarding person under ― disability‖
 • Here, the question that should be answered is that why Art 235(2) make the disabled‖
persons 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 failure to deny specifically as
admission.
• Q. Do you think the court may use its discretion
and require any fact so specifically admitted to
be proved?
• the court could, of course in the exercise of its discretion require
that this admitted fact be proved (see Art 235(2) of civ-p-c.)
But unless the court so exercises its discretion, the defendant
cannot contest said fact.
• As provided (Art 235(2) of civ.p.c) unless the admission is
doubtful or vague, the court should not require such specifically
admitted facts to be proved. (see Art 83 of civ.p.c)
From this we can understand that even judicial admission in
civil case is not conclusive
 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 first
hearing pursuant to Art 241 and 242 of civ.p.c or at a later time when called up on by
the court to indicate whether he admits a fact or not.( Art 243 of civ.p.c).

• • 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 a new cause of action, in
cross-examining, the other side's whiteness's evidence.

• • Admission made in pleading is conclusive and one can not withdraw later except
with the permission of the court by amend his pleading.
 Question

• Is it possible to deny what was believed in a

statement of defense on the first hearing
date?
 Remark
• English Version Civ.Pr.Art. 241(1) ‗the court shall ask the party or his pleader
whether he admits or denies such allegation of fact ………..and as are not
expressly or by necessary implication admitted or denied by the party against
whom they are made‘.

• Amharic version Art. 241(1) ―እንደተካደ የሚቆጠረዉን ነገር ያምን ወይም

ይክድ እንደሆነ ይጠይቀዋል” Vs ―እንደ ታመነ የሚቆጠረዉን ነገር ይክድ ወይም
ያምን እንደሆነ ……” Amharic provision more acceptable. So admission which
is given in statement of defense is conclusive unless the court allows amendment
of pleading under Art 91(4)
 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 it may delegate its power to a commissioner. (a
court or a person) ( Art 127 ,122 of civ. P.c )
• In accordance with Art 124(2) of civ-pc the commissioner may
examine the parties themselves and may receive their admissions.
the admission given in this way is considered as extra Judicial
admission since it is another court other than the court having
jurisdiction.
• Q. Thus, why we categorized admissions made before a
commissioner as judicial admission?
• Because:

1. the court delegates its power of examination to a commissioner.

And,

2. the evidence taken under it shall form part of the record of the
suit. (see Art 128(2) of civ.p.c ). Thus, the admission made before a
commissioner is conclusive as if Judicial admission
 E. Admission by testimony of the party himself

 in civil cases, a party can be a competent witness in his own case. • So, while
testifying during his case either in chief or cross-examination, he may admit
facts.

 • For instance, for breach of loan contract of a certain amount, the defendant
may make the following statement “I am not liable to perform the contract
since the claimant has agreed to me to set off his claim with the same amount
for which he is liable to me extra contractually”.

 • In the above cases, the defendant admits the allegation of the plaintiff.
• 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.
• 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 (See 252 of civ.p.c)

• 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.
 2. Judicial admission In criminal Cases
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.
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.
• But in serious criminal case like homicide, the court may require the
public prosecutor to produce evidence.
• The reason is 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
• On the other hand, the very high standard of proof in criminal cases
still justifies further proof of a crime beyond reasonable doubt.
Extra- Judicial Admission:
Civil and criminal case
 As said earlier in civil cases, admissions made before a commissioner is considered
as judicial admissions even though it may be made outside of the court.

 • However, the effect of extra-Judicial admission in criminal cases is different. •

This is due to the higher standard of proof required in criminal cases.

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

investigation (Art 27 of cr-p-c). 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
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.

The confession made during police investigation may be excluded on

the ground of unfairness.

when the suspect made his statements without informed of his right.
In criminal cases, there is a difference on the admissibility of
confessions made before the trial court, and before other courts.

 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 cr.p.c).
 2. Presumption
• Defining Presumption(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.
 Here, the proof of one fact is taken as the proof of the other fact.
 If the proof of A' makes the existence of fact ―B‖ more probable it is
sensible and time saving to assume the truth of fact ―B‖ until the
adversary disproves it.
 Why we need presumption?

• There are policy considerations supporting the creation and

invocation of presumption.

1. just to save time. For instance, the law presumed the person who
holds title deed is presumed to be the owner of immovable property.
(see art 1195 of civil code).

2. The law may provide presumptions for procedural convenience.

3. 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 63(1) of RFC).
 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)
 Issue

Do all presumptions depend on the proof

of the basic fact?
 Remark

Said earlier, presumptions are circumstantial evidences from which

if one fact (basic fact) is proved to exist, the alleged fact exists.

Thus, the beneficiary 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.
 Rather, he can be the beneficiary 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. See (Art 20(3)
of the FDRE constitution.
 Types of presumptions

1. Presumption of Fact (Permissive inferences)

• Presumption of facts are not prescribed by law.
• They are about logical inferences that can be made from a given
fact.
• Presumption of facts are not mandatory, rather they are permissive
in the sense that the court can take it or leave it at its discretion.
• Example 1, 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 a son is called to testify in favor of his
father, one may presume that it is difficult to get a neutral
testimony from such witness.
2. Presumption of Law

 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.
 Presumptions of law are of various types:
a. Irrebutable Presumption
Irrebutable presumptions: do not have the effect of shifting the
burden of production to another party.

Once the person who has the irrebutable 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.
Example, 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.

No proof shall be admitted to rebut such presumptions. (See Art 2026 (1)
civil code
See these cassation decisions regarding irrebutable presumption vol 10 file numb.
44691 and 29181, vol 12 file numb. 48857, file numb.215579( unpublished)
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‖

Irrebutable presumption (conclusive) has the same effect us judicial notice.

b. Rebutable presumptions
Rebutable presumption of law unlike irrebutable presumption has the
effect of shifting the burden of proof to another party.

• For instance, in the case of presumption of legitimacy of paternity,

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 marriage 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).
 Rebutable presumption has also two aspects

A. Rebutable presumption by any means(ground)-

• Under Civil Code Art 1147 Change of title.

(1) Unless the contrary is proved, he who began to possess on behalf

of another person shall be regarded as a mere holder.

(2) Proof to the contrary may be adduced by any means.

B. Rebutable presumption only by certain means(ground)- you can
only presents only grounds which are prescribed by the law only. So it
is not open.

Example
c. Permissive presumptions

 Like presumption of fact, they are not mandatory, and like

presumption of law they are prescribed under the law.

• The provisions of the law which provides permissive presumption

contain the phrase‖ may presume...” which shows its permissive
nature (Art 22 of civil code)
For example, a person charged of knowingly transmitting AIDS to
woman may refuse to summit to examination.
 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.
Is permissive presumption a rebutable presumption?
 Regarding this issue, there are different arguments:

 The first is, once the court considers the disputed fact as established; the other
party doesn't have the right to rebut it.

 While according to the second argument, permissive presumption has the effect
of shifting the burden of proof to another party, which enables him to rebut it.

 The third argument is the one which consider permissive presumptions as

rebutable presumptions depend on the discretion of the court unlike reputable
presumptive.
 3. Judicial Notice
• Q. What is judicial notice? Defining Judicial Notice:

 judicial notice refers to circumstances in which the judicial system assumes a

factual proposition to be true even without proof of that proposition.

 when the matter alleged is so well known to the court it would be a waste of time
to compel the party to offer evidence of its truth.

 For example, facts like city of Addis Ababa is the capital of Ethiopia, criminals
lead unhappy lives are among facts of which the court will take judicial notice.
• Taking judicial notice has a great 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.
However, the law may require a court to take a judicial notice of a
certain facts.

• Such judicial notice may be mandatory(laws published in

negarit gazeta) or discretionary.(name of place, the seals of all
ministers)
Generally facts of which the court may take judicial
notice can be classified as:
 judicial notice of adjudicative facts and
 judicial notice of laws /legislative facts.
1. Judicial Notice of Adjudicative Facts

a. Facts of common knowledge

Q. How can we determine the communality of knowledge of a certain fact?

• A fact of common knowledge is a fact generally known to be true by the

ordinary intelligence of the people and beyond dispute.

• It is not something one knows because of his academic background. A fact of

common knowledge, as you may understand refers to knowledge that is
commonly shared by all people.
• b. Verifiable facts
Q. What are verifiable facts?
• As said earlier, veritable 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, geographical
facts and political subdivision of a state which can be ascertained by
referring to maps or geography text.
For example, the fact that whether an epilepsy may suddenly make a
person un conscious or not, can be ascertained from text of medicine or
by consulting a physician, if necessary.
Furthermore, if the date in which the Ethio-Eritrea war had
commenced is in dispute it can be ascertained by historical records.
 But, the point that should be underscored here is that the reference
them selves should be undisputed authorities and the fact must be found
to be unchallenged.
 Issue

How can we determine whether the text is authoritative or

not? what if for instance texts reflect the personal opinion
or the political stand of the historians ?
 Remark
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
verifiable facts.
 2. Judicial Notice of Law.

What is judicial notice of law?

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. [ see Art 240 of civ. p.c ]
Q. Which laws are subject to judicial notice of law?
 As you know, the term “law” covers a wide field, which includes law of
the state venue, laws of other sister state, foreign laws, international
laws, customary laws, administration regulations and directives and
the like.
 But here, the question is which kind of laws is subject of judicial notice
and by which courts?
 Proclamation no 3/1995, which establish the federal Negarit gazeta under
art 2(3) provides: All federal or regional legislative, executive and
judiciary organ shall take judicial notice of laws published in federal
negarit gazeta.
The word “shall” refers that judicial notice of laws is mandatory.
Thus, for courts to take judicial notice: the law should be published in
negarit gazet and such negarit gazeta should be the federal negarit
gazeta.
• Accordingly, the next question is whether the following laws are eligible for judicial notice or not.

1. Federal laws: are those laws, which are enacted by the federal law making organs. For instance:

 Proclamations enacted by the HPR;

 administrative regulations and directive enacted by the executive departments of federal

government;

 Laws enacted as per art 55(2) of FDRE constitution: labour code, commercial code and criminal
codes(see Art 55(3),(4),and(5) of the FDRE constitution)

 As the HPR can enact civil laws if it deems necessary to establish and sustain one economic
community. (See art 55(6) of the constitution), those laws enacted with this rational.
2. Are federal treaties federal laws? yes. whether courts are required
to take judicial notice of treaties which are ratified but are not yet
published in federal Negarit Gazeta?
3. Are Administrative regulations and directives laws? Yes,
regulations are published in negarit gazeta. But What about
directives made by executive departments? – they are not published
in the federal Negarit Gazeta!
4. Are the decisions of the cassation division of the federal Supreme
Court laws? Yes!

• But they aren't published in the federal Negarit Gazeta, thus whether
courts are bound to take judicial notice of such decisions or not? But
Procl. No 1234/2013 Art 10(2)-binding starting from date of
judgment not publication.
5. State laws: what are state laws?

State laws are those laws, which are enacted by state councils in accordance with art 52(2)
(b) (f), and art 55(5) of the constitution.

 whether federal organs are required to take judicial notice of laws published in” state
Negarit Gazetas? It should be seen in light of the federal court establishment proc.
Example procl. 1234/2013 kwt 6(1)(b) says Substantive Laws to be Applied by
Federal Courts-when the case regional case…so they are required to use state laws
in cassation court when the case is regional matters.
• What about other sister states, for instance in the case of
internal conflict of laws? Working language of courts +
proc no 3/1995 gives a hint!
 3.1. Facts in issue
Evidence is all about proof of facts. Because, unlike laws, the law
of evidence does not recognize things in the abstract, including laws.

Rather, it reduce down in to pieces of facts so as to make it ready

for proof. And it is possible to break down the provisions of the
substantive law in to a set of propositions called elements.
• What is a fact?

 Fact means any thing or relations of things capable of being perceived. Thus,
every thing is a fact.

 A fact may be internal (psychological facts) or physical (external facts).

A. Internal fact: bad faith, reputation, negligence, intention, good faith etc. How
can we prove? From conduct or word.

B. External fact: some thing: seen or heard, arrangement of things, the sense of
a word use and the like.
Facts in issue: the fact, which is disputed between the parties and
to be resolved by the help of evidence.

Q: How can we determine fact in issue? From the cases. See: art.
137& 146 of cr.p.c and art 263, 270 , 138 of civ.p.c.

In civil case, fact in issue is determined in the process of framing of

issues at the first hearing. (see Art 246 of civ.p.c)
 3.2. Relevant facts
 Evidence must be relevant. But what does it mean? (what is relevancy?)
 And how can we determine whether a certain evidence is relevant or not ? Is it
necessary that the evidence be conclusive of the case?(no)
 Relevant fact means any fact which directly or inferentially leads to a
conclusions to proof or disproof of a fact in issue.
 Thus, 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.
Basically, relevant evidence has two components: materiality and
probative value.
A. Materiality: refers the relational aspect of relevancy. In other word,
direct or indirect logical relationship needs to be established between the
evidence and the fact to be proved.
B. probative value:
This requires relevant fact to have the capacity to prove. Evidence to be
relevant, it must have a sufficient degree of probative force.
The evidence shall be sufficient to carry the proponent's burden of
producing evidence.
 The judge shall reach the degree of confidence required by the law that
the proposition is true.
 Facts Relevant to Facts in Issue
 Codes nowhere specify what categories of facts are relevant.
 Accordingly, how can we distinguish the relevant fact from the irrelevant one?
 In nut shell, the determination of relevancy is based on logic and common
sense.
 For instance, if A is accused of the murder of B, what facts may be considered as
relevant facts?
I. Whatever was said or done by A or by B;
II. Whatever was said or done by the bystanders at the beating or so shortly before
or after.
 Relevancy of Circumstantial Evidence

Circumstantial evidence is evidence that proves a certain fact

indirectly.

 This evidence is depends on the surrounding circumstances.

 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
 Relevancy of Judicial decision
The relevancy of court judgment depends on the nature of the
case.
Judgments of civil court are not relevant and binding evidence
on criminal courts.(in terms of taking them as obligation)
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.
• However, the relevancy of criminal court judgment depends on Joined suits
and non-joined suits.

A. Joined Suits:

 Where the accused is convicted, this criminal conviction will have a direct
relevancy to determine the civil liability of the accused.

 However, where the accused is acquitted, the question of compensation shall not
be adjudicated by the then criminal court.

 Rather, the court shall inform the injured party that he may file a claim against
the accused in civil court having jurisdiction (see Art 158 of cr.p.c).
B. Non-Joined suits:
The result in criminal court may be either acquittal or conviction. If the
result in the criminal court was acquittal Art 2149 of civil code
specifically provides that the criminal court judgment shall not have
abiding effect up on the civil court.
 When the result in the criminal court is conviction, there in no provision
which explicitly states as to whether a conviction is or is not binding on
civil court.
Any decision made by a court in a criminal case must be based on
relevant evidence. Cass. vol 17 file numb. 89676)

Judgments in criminal cases are valid for civil matters and should be
properly analyzed.(cass. Vol 9 file numb. 37184)
Relevant but Inadmissible
Facts
There is the principle of law of evidence that evidence that is not
relevant is not admissible.
 Evidence is inadmissible if rejected for some reason other than
relevancy.
Thus, admissibility is abroad concept under which rules for exclusion of
evidence irrespective of its relevancy.
For example, relevant evidence may be excluded if it is unfairly
prejudicial, confusing, or cumulative.
Further more, variety of social policies operates to exclude
relevant evidence like in the case of evidence protected by private
privilege or public interest immunity.

 In nut shell, inadmissible evidence may not be received before a

court, no matter what is relevance might be.
When does Evidences may be Rejected by the Court?

 An evidence may be rejected or not received by court for two reasons:

I. Firstly, if it is not relevant and

II. Secondly, if there is a legal prohibition behind it.

• So, to be admissible, evidence has to be relevant, without any

exclusionary rule preventing admissibility.

 All admissible evidence are relevant but all relevant evidence are not
admissible.
 Reasons that prevent Admissibility.
• 1. Public policy.

Though, the evidence is relevant, it may be prohibited from being

produced as evidence before the court of law.

 One of those situations is the case of public policy.

There are three relevant evidence which may but be proved in the
name of public policy.
• These are:
I. Evidence as to affairs of state:
II. Information for the detection of crime(the name of the
informant+ the ways of: gathering information and detecting
crime) and
III. Disclosure judicial(the principle of independence of judiciary,
art 77 FDRE Constitution)
 I. Evidence as to affairs of state:
No one shall be permitted to produce any unpublished official 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.
Here, the fact that whether the document in question is public or private
is immaterial. Rather, the question should be, whether such documents
can be produced with out injury to public interest or not.
This includes, government secrets or public security, military force,
and other internal security matters.
 2. Privilege

 Certain relevant evidences are not produced in court of law to

protect (1) certain social interest, which prevails over the individual
interest. For instance, spousal privilege.

Similarly, there are privileges provides to protect (2) professional

secrecy like in the cases of client- Advocate, patient -physician,
and priest- son relations.
 3. Parole evidence or extrinsic evidence in relation to
document

It 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.

 Art 2006(2) of the civil code provides for the parole evidence rule
for contracts.
Chapter 4- Oral Evidence
 Definition
The Blacks law dictionary, defines oral evidence: Verbal evidence
which is given by word of mouth.
It is the oral testimony given by witnesses in court.
Oral evidence is ordinary kind of evidence given by witness by
word of mouth.
 it is statement made by a competent witness, under oath or
affirmation, usually related to legal proceeding.
 Who gives the Oral Evidence?
A witness gives the oral evidence. Witness, in general, is one who
being present, personally sees or perceives a thing; to testify before
a court.
 A witness who has seen first hand is known as an eye- witness.
As a witness, an expert witness testifies 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.
 Oral evidence, therefore, includes the statement of witness before
the court.
 Oral Evidence: Importance
In order to establish the true fact through the accurate evaluation
of relevant and reliable evidence and assist in the achievement of
rectitude or correctness of decision making.
 In case of absence of documentary evidence, especially in
criminal cases that most of time it is hard to get documentary
evidence, the possible option to prove the alleged fact is by
producing oral evidence.
 Competence of witnesses.
What do you think must a person fulfill to be a witness?

 A competent witness is one who is fit and commonly gives his

testimony before courts or a judicial proceeding under oath or
affirmation.

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.
 Types of Competency of Witnesses
• A. General Competency

 It is about telling to the court what one has heard, seen, smelt, touched, etc. It
is widely accepted that every body is presumed to be competent.

 That is, with the exception, perhaps, of certain witnesses, general competency is
presumed. 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.
• B. 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 observed, facts
presented to him by counsel or a combination of both types of facts.

 That is, special competency refers to the ability to analyze facts about
which one testifies. 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: (1)

layman‘s opinion, and (2) expert opinion given as
testimonies.
 Grounds of incompetence
The competency of ordinary witnesses has its own exceptions.

These exceptions are the incompetence of the ordinary witnesses

due to lack of organic and moral capacities of presumed witnesses.

Thus, the above quotation may enable us to say that the competency
of ordinary witness is the general rule while their incompetence is
the exception.
 a. 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.
Here, we can understand that having intellectual capacity of observation,
recollection, narration or communication of what has been observed and
recollected and understanding the duty of telling the truth are the main
elements to be considered in the process of determining the competency
or incompetence of a required witness.
 To tell the truth in the court proceedings, he may, if otherwise
incompetent, testify as a witness.
A child or a person with mental defects are generally competent (1)
if they understand the questions put to them and (2) rationally
answer them.

such a witness must not only be possessed of sufficient intelligence

to justify reception of the evidence but also (3) he must understand
the duty to speak the truth.
 b. 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.
Nonetheless, 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.
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.

Hence, in Ethiopia, even though there is no law, which governs such issue,
practically these types of persons are not incompetent to stand as witnesses
merely because they are blind, deaf and dumb if they are able to observe,
recollect and communicate.
 c. Legal interdiction (Conviction of a crime)

 In present Ethiopia, this is no longer a bar to competency of a

witness.

This can be inferred from the substantive laws such as the FDRE
Constitution and the procedural laws, i.e., Art 142 of the Criminal
Procedure Code, and Art 268 of the Civil Procedure Code, and etc
 d. Interest in the outcome of the case as ground of
incompetence

This includes –parties to the case, consanguinal and affinal relatives, other
emotional grounds and so on.

 In early times both criminal charges and civil suits, persons were disqualified
as they were considered incompetent.

There is no such restriction in the present times.

 The witness is presumed to be competent if he meets the requirements.

Examination of witness.
 Oral evidence is adduced in court by way of giving answers to questions put to the
witness.

 There are three forms of questions, namely; examination in chief, cross-examination,

and re-examination.

 It is the principle of evidence law that the party who bears the burden of proof has
right to begin. Thus, as a rule the public prosecutor/plaintiff begin as the case may be
then.

 The witness testifies by giving answer to examination- chief followed by cross-

examination by the opposing party and re examination by the calling party.
 a. Examination-in-chief
 Examination-in-chief is the processes where by a party who has called a witness to give

evidence on his behalf elicits from that witness evidence relevant to the issues and favorable

to the examiner‘s case.

 A witness is examined-in-chief when the party calling him questions him in court for the

first time.

 examination-in-chief is a question put by the calling party to the witness so that the latter

will tell the story about the fact he is asked. Art.137 of cr P c and Art.263 of civ.P c.

 The question put in examination-in-chief shall only relate to facts, which are relevant to the

issue to be decided and to such facts of which the witness has direct or indirect knowledge.
Leading question is prohibited in examination-in-chief.
 Leading questions-that is, a question that is phrased in such away
that the desired answer is contained or implied in the question it
self.(Art. 263(2) civ.p. and Art.137 (2) of cri.pro.c.)-yes or no
answers.
Both code provides No leading question shall be put to a witness
without the permission the court. Exception in case of hostile
witness
 B. Cross examination
 Cross-examination follows immediately the examination-in chief, unless the
courts for some reason post pones it.
 In asking such questions, the examiner tries to weaken the testimony of a witness
given through examination-in-chief.
 It is part of the constitutional mandate that the witness against him must
confront an accused, and testimony is not allowed to remain as evidence if the
accused has not had the opportunity to fully cross examine the witness giving the
testimony.
 It is right provided under our constitution.( Art 20(4))
As provided by civil procedure code article 263(3),a question in
cross-examination shall tend to show to the court what is
erroneous, doubtful the or untrue in the answer given in
examination-in-chief.

Leading question is allowed.

 How can we ask leading question?

The character of the witness (whether he has previously given a false

testimony by falsely accusing someone or a liar and a traitor in social life
whom society does not trust),

His attitude towards him (disgust) ,

His closeness or affection for the person he has presented as a witness,

The testimony of the witness is contradictory, and so on.

 c. Re-examination

Once a witness has been cross-examined; the party who called him
is entitled try to repair any damage done to his evidence in-chief by
asking further question on the matters which arose during cross-
examination.

Re-examination logically results from the interaction between

examination-in-chief and cross-examination.
If testimony, which is giving in answer to examination-in chief, is
discredited by cross-examination, or shown to be erroneous, doubtful
or untrue the party who has called the witness could re-examine the
witness in the way to cure what is damaged during cross-examination.
(art. Cr.p.c 139 and civ. Pr.code art 263(4) )
 The questions that may be raised shall be limited to the main points
raised in the cross-examination.
Hearsay is legal term that describes statements made out side of court.
However, all statement made out of court are not hearsay.

In ordinary circumstance, hearsay may have various meanings, but the
definition of hearsay under this topic is standardized in context of
evidence rule and principles.

This is a type of evidence given by a witness based on the information

he has attained from the statements made by others.
Admissibility of hearsay evidence?

Dear students, is hearsay evidence

admissible in Ethiopian as a rule?
For many reasons hearsay is in principle inadmissible.

1. Lack of cross- examination

2. Absence of oath

3. Testimonial infirmities (wrongly perceived the events in question)

 Exception to hearsay evidence
• There are certain exceptions to the hearsay rule, which makes the hearsay
evidence admissible.
1. Dying Declaration ( Rule 29(a) Draft Evidence rule)- These are
declarations made by a person who knows that his death is imminent,
and a person cannot be found at the time the testimony is required. A
person who is going to die does not have the motive for which he has to
lie
2. Statements made in the ordinary course of Business
 The idea behind this exception is that if the statement is made in the
current habit of business, it is more likely to be trust worthy than
otherwise.
Rule 29(b) requires that the person who made statement in the ordinary
courses of business should fulfill certain formalities in his courses of
recording; in particular it must consist:
3. Declarations against interest rule 29(c) of DER

There is an assertion that a person is not likely to make statements

against his interest lightly or with causal regard for truth.

 This contributes to the trustworthiness of such statements and is the

reason for this exception to the hearsay rule.
4. Statements of opinion as to the existence of a public or general right
or custom.(rule 29(d)
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.
 This is the physical evidence that plays a direct part in the incident in question.

 Consists of production of any object used in committing a crime, e.g. gun,

knife, pen.
 Is one mechanism of proof like that of oral evidence
 is a type of evidence for which the court can personally inspect and make
inferences and conclusions on the existence or non evidence -existence of fact
 comprises of documents and physical objects in various forms
 is devided in to two-: demonstrative and documentary evidence
 both evidences to be relevant must satisfy the test of authentication and
corroboration
 1 Demonstrative Evidence

It is any evidence introduced in a trial in the form of a physical

object, intended to prove a fact in issue

can conceivably include all or part of any objec

demonstrate the existence or non existence of a fact to the court.

Example in a murder case it can 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.
It is evidence in the form of a representation of an object.
Examples include photos, x-rays, videotapes, movies, sound
recordings, diagrams, maps, drawings, graphs, animations,

When complex, can be clarified by expert witness

• General Rules
 There must be some other piece of evidences: a fact, an object, or testimony
that needs to be illustrated or demonstrated
 Demonstrative evidence is intended to be an adjunct to testimony
 THE SECOND is the foundation requirement which is ―laying the foundation‖
 Certain preliminary steps must he followed such as authentication and accuracy
• 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 the scale, dimensions, and contours of
the underlying evidence.

 A photograph or chart with some small section of it enlarged to focus in on is probably

inadmissible
Identification

 The demonstrative evidence must be an exact match to the underlying evidence or the
testimony illustrated.

 demonstrative evidence must pass the ―three hurdles‖ of admissibility: relevancy;

materiality; and competency

 demonstrative evidence must pass an additional balancing test for relevancy__ a

weighing of what is probative/ prejudicial.

 This rule necessary favors the defendant, in rooted in the principle of fundamental
fairness, and protects them from unwarranted inferences about bad character or habit.
 2 Documentary Evidence
 DER defines it as;- any matter expressed or described upon any substance by
means of letters figures, 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.
 all documents product for the inspection of the court
 It is a type of written proof that is offered at a trial to establish the existence
or nonexistence of a fact that is in dispute.
 Letters, contract, deeds, license, certificate, ticket, or other writing are
documentary evidence
 The difference between documentary and physical evidence
documentary Evidence Physical Evidence
 usually the document is submitted for examination of the content  if the document is submitted for other purposes than examining
of the document the content of the letter, it could be physical evidence.

 is any evidence introduce at a trial in the form of hard or

soft(electronic) documents

 include any media by which information can be preserved,

photographs, tape recording, film, and printed emails are all forms
of documentary evidence.

 is subject to specific forms of authentication, usually through the
testimony of an eyewitness to the execution of the document

 is also subject to the best evidence rule, which requires that the
original document unless there is a good reason not to do so

 authentication- is done to ascertain who the author of the

document and its genuineness
 Unless a documented is authenticated it may not be admitted as
proof.
 3 Modes of Authentication

A. Admission of authorship by the writer- articles 2007 and 2008 of

the civil code on proof in relation to contracts.

B. Proof of signature or handwriting

article 1727 (2) of the civil code) require a document to be attested

by witnesses whose signature will be included in the document

the testimony of these witness is sufficient to prove

C. Comparison of signature /writing with others admitted or proved

The court will compare two writings/signatures of the same person

and may reach to the conclusion

Authentications by lay witness- who are well acquainted with the

writing of a person

Authentication by expert witnesses

 4 Best Evidence Rule
• Authentication + Best Evidence (the contents of a document can only
be proved by adducing the original document itself)
Best Evidence rule
Contend that secondary evidence, such as a copy or facsimile, will be not
admissible if an original document is available
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
In Ethiopia DER 53-; contents of a document may be proved either by
primary evidence (this is the best evidence) or by way of exception by
secondary evidence.
CHAPTER SIX:BURDEN AND
STANDARD OF PROOF
 1 Meaning and concept of Burden of Proof
• Burden of Proof
Refers the obligation to prove allegations, which are presented, in a
legal action
Or refers to an obligation in a particular context to defend a position
against a prima facie other position.
Facts in issue- burden of production (burden of going forward with
Evidence)- burden of persuasion (Discharging or preventing the
discharge of these burdens is the goal of introducing evidence)
 Burden of production VS. Burden of Persuasion
Burden of production Burden of persuasion
 Refers burden of going forward with Evidence (evidential burden)  comes when the plaintiff shows a prima-facie evidence
 A party who has a claim or an allegation bears the burden of  Refers the obligation to persuade the court to the standard required
producing evidence by the nature of the case using the evidence produced by either party.
 is the obligation of a party to introduce evidence sufficient to  is determined by rules of substantive laws
avoid a ruling against him on the issue  is simply adducing enough evidence

 determines whether or not the person who shoulders the burden of Rreferspreponderance of evidence (civil) and beyond reasonable doubt
production will lose the case (criminal cases)
 passing the Judge” as any failure to satisfy the evidential burden means
 The party can win the case when only he proves persuasively the
that the issue will never reach the Jury
existence or non-existence, or occurrence or non-occurrence of the
 if there is no an evidence on an issue, the case will be decided in favor of
fact in issue
the other party

 Has nothing to do with weighing evidence.  producing evidence be it circumstantial or prima-facie evidence or any
other evidence is not an end by itself unless the party persuades the
court as to the fact in issue
 the burden of production may shift to the other party if the party  can’t shift at any stage
makes a prima-facie case on the issue
 Up on whom does burden of proof lies?

On a party who allege the existence of a fact

On the Plaintiff in civil and on the public prosecutor in criminal cases

The burden of production may shift from one party to the other during
the course of the trial.

The same party may bear both evidential burden and legal burden at the
same time. i.e. where the party produce sufficient evidence to make a
case he/she shall again establish a fact so as to persuade the tier of fact.
 Burden of proof under the Evidence Law of Ethiopia

• No clear cut distinction between burden of production and

persuasion.

A. Burden of proof in civil actions.

A party who alleged the existence of a certain fact has to prove it.

Usually burden of proof lies on the plaintiff

Counter-claim- the burden of proof lies on the defendant.

B. Burden of proof in criminal cases
Burden of proof lies on the public prosecutor –see art. 136(2)
Article 20(3) of the FDRE constitution - presumption of innocence
Burden of production lies on the public prosecutor- if no case acquittal
of the accused person Art. 141.
If the Public prosecutor makes a case then the accused must rebut the
evidence produced against him Art. 142
 Standard of proof

• It is the level of proof required in a legal action to

discharge the burden of proof.
220
221
 Preponderance of Evidence–

Is also called as a balance of probabilities

lowest level of proof,

50+1

used mainly in civil trials

is met if the proposition is more likely to be true than not true

he plaintiff must prove each element of the claim, or cause of action, in order to recover.

No such specific rule in Ethiopia

 Clear and convincing evidence

Is employed by US civil procedure

The party must convince that it is substantially more likely
than not that the thing is in fact true
Is in the middle of Preponderance and Beyond Reasonable
Doubt
 Beyond a reasonable doubt

Is the highest level of proof,

 used mainly in criminal trials

Lies on the government

Proof- there is no "reasonable doubt" in the mind of a reasonable person

Beyond- to the exclusion of reasonable doubts

Rationales-

o The existence of presumption of innocence –art. 20 (3)

o The unbalanced position of the parties

o He grave nature of criminal punishment

Giti mirkaneessaa kun akka gita mirkaneessa shakkii dhama
qabeessaa olii cimaa, ykn akka haala fakkaachuu danda‘uu salphaa
osoo hin taane, jiddu galeessa irratti kan argamu dha.

Kana irraa ka‘uun barreessitoonni gita mirkaneessaa kana gita ragaa

ifaa fi amansiisaa ta‘e sirna kooman loo keessatti beekamu wajjiin
walfakkeessan ni jiru.
Draft Crim. Provides beyond reasonable doubt and cassation decision vol 8
file numb. 37256 also takes beyond reasonable doubt as standard of prove
for criminal matters.
Thank you!! Join. Elias K. Law Room
(Telegram channel)
https://t.me/eluLaw