Evidence law

Chapter one
1.1What is meant by Law of Evidence?
❖ Is there any difference between the Law of Evidence and 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

✓ it is also the foundation of proof.

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

Draft Evidence Rules (DER) defines evidence,

• as “ 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.
• No documentary evidence is cited. Why?

What communality can you discern from the above stated definitions?

• Facts – disputed facts ( excluding mere arguments, inferences..)

• Proving or disproving such facts based on ( eg, admission, confession, judicial
notice, presumption, witness, documents, real,.. )

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

➢ So all facts traditionally considered as evidences may not be evidence in

the eyes of evidence law

So, what is then law of evidence?

❖ When we come to the definition of law of evidence, there is no one size fit

all definition.

Mc. Cormick

✓ The system of rules and standards by which the admission of proof at the
trial of a lawsuit is regulated (what kind of proof?)

Generally the law of Evidence relates to,

a) What facts need to be proved and produced and what facts need not
be proved to the court and
b) Who may prove / Which of the parties have the burden of proof

c) How to prove such facts

d) The required standards of proof to win the case
e) Relevancy, Admissibility, Credibility and weight of evidence….

1.2 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)

Argument:-

❖ The first argument THE LAW of Evidence should be incorporated

under procedural laws
 ✓ Similarity in purpose
✓ 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

• Additionally, categorizing law of evidence as one part of adjective law

helps to establish more effective system of adjudication of
cases before the court of law

WHICH LINE OF ARGUMENT IS MORE TENABLE? WHY/WHY

NOT?

❖ Consensus,

✓ 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, some countries do not have a codified law of evidence the

problem that you would face is whether law of evidence is part of procedural
 or substantive law

• Rule of evidence are dynamic. Interact with, substantive, procedural,

judges perception, advocates skill, witnesses credibility, ….

1.3 Purpose /significance of Evidence law.

List some of the significances of evidence law?

➢ Is the “Key” which a court needs to render a decision.

➢ Without evidence there can be no proof.
➢ It regulates the process of proof and the conduct of litigation
➢ Has amoral purpose- establish and regulate the process of proof in the proceeding of courts
eg public interest,
➢ Protect the accussed's right to a fair trial Eg, prohibiting evidence of defendant’s character
and previous conviction Art. 138 of CPC and rule -145 of DER

➢ Should evidence law regulates the relevancy of evidences or no

exclusionary rule has to be adhered?
➢ Should judges be given discretionary power or limited power on
determining relevancy of evidence?

➢ With regard to regulating the questions of relevancy, there is no consensus.

❖ Bentham and William Twining advocate –

✓ FREE PROOF ( a judge should be provided full access of all evidences)—

they advocate abolition of all laws operating to exclude evidence

✓ Bentham felt laws of evidence were needed only to the extent of preventing
'vexation, expense or delay'
❖ Second Approach-

✓ A judge should not be given unlimited discretion. (undesirable and chaotic)

✓ There should be ground rules for the admission of evidence so that common
standards are applied between all courts and tribunals
✓ Having rules of relevancy would help to give timely and effective justice
✓ 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
✓ a number of rules relating to admissibility and use of evidence are directed
towards minimizing the risk of wrongful convictions
✓ Verdicts of the court to have amoral legitimacy, trials must uphold basic
human and constitutional rights

1.4 Development of Evidence Law

➢ The present rules and principles of evidences are the outcome of the successive
development, conducted in different stages of human civilization
➢ in early times there was no distinction between civil and criminal cases
with regard to evidences
➢ The accused was under obligation to proof his innocence

➢ Generally, evidences were gathered by; proof by ordeal and oath

I. Proof by ordeals

✓ Ordeal is about subjecting somebody to undergo a painful experience like:- walking on

fire, holding glowing with heat, put hands in to boiling water…
✓ If the suspect goes unharmed after going through ordeal he is said to be innocent. If not
he is guilty
✓ This was mainly based on spiritual power.
✓ Such kind of evidences were used until 15th century

II. Proof by oath

✓ Is mainly based on religious notions
✓ The accused/ defendant is required to take an oath before his testimony in his own case
✓ Oath was considered as best evidence as perjury was a sin and subject to punishment from
God.
✓ Later court required the testimony of supporting witnesses (compurgators) to attest
whether the oath is true or not and not on the merit of the fact
✓ Gradually, the above ancient ways of proof had begun to be replace by the new and

modern concepts of evidence rules. (writings of scholars, judicial decision,

development of laws in different legal systems played a great role).

1.3.1 Traditional mechanism of proving in ancient Ethiopia

➢ Oath and the testimony of witness were widely used by Fitha Negest
➢ In the absence of evidence, two types of methods were used

1. “Laeba Shai”

✓ Reporting of a crime to the government

✓ Leba shai administrator
✓ a person was made to drink some herbal solution that would intoxicate him
✓ the owner of a home where a leba shai enters and falls is considered as guilty
and was prosecuted without any additional evidence
✓ This was criticized and replaced by,

2. Afersata” or “ awchachigh”.

✓ The wrong doer was made to be identified by a public gathering

✓ The public was sequestered in a group gathering until the wrong doer was
identified
✓ Birds, stones,

1.5 Evidence in civil and common law legal systems

 1. Separation on the organization of the rule of evidence

Common law The Anglo - American Civil law The continental

• Have separate rule or code of • No separate Code of Evidence
evidence law
• The rules determine admissible and • are sparsely distributed in both
inadmissible evidences substantive and procedural laws ---
• Jury (separate law exists because of judge
mistrust of juries) • the existence of professional judges

2. Difference regarding the sources of evidence rules

• Laws made by the parliament plus • Laws are enacted by the parliament.
Judges can make laws- including • WHAT ABOUT ETHIOPIA?
evidence stare decisis proclamation No 454/2005- art.2(4)
• precedent system
3. The difference regarding the system of inquiry

✓ Employ the ''Adversarial system'' ✓ Employ the ''Inquisitorial System''

✓ a party-lead system in which the ✓ The trial judge plays a far more
judge has no investigative role active role (question witness, direct
✓ judge acts as an impartial umpire police, …
✓ judge has no investigative role ✓ Evidence is generally extracted in a
✓ parties have complete autonomy more humane and natural manner
✓ parties legal rep. collect the evidence ✓ Witness are considered as witness of
and decide what evidence should be a court
presented ✓ WHAT ABOUT ETHIOPIA?

4. The differences on the types of evidences they emphasized

✓ great weight and importance is given ✓ emphasis is given to written evidence

to oral testimony of parties and their ✓ There are Registration offices like
witness (oath) offices of notary
✓ The physical presence of the witness affords ✓ Documents do not lie while people can
the judge the opportunity of observing the ✓ Risk of loss of memories
witness demeanor ✓ Risk of unavailability of witness.
✓ cross examination is widely used ✓ Cross examination is not widely used
✓ Documentary evidence is generally
regarded as being inferior to oral
evidence.
5. Are parties themselves competent witnesses in their own case?

✓ Parties themselves are competent ✓ it is considered best if no one is a

witnesses in their own case. witness in his own case
✓ The defendant is not a competent ✓ A party cannot nominate itself as
witness for the prosecution but is a testifying to the accuracy of its
competent witness in his own assertions. (neutrality)
 defence ✓ Sometimes the exclusion extends to
✓ The defendant may choose whether spouses, relatives and …
or not to give evidence on oath
what about in Ethiopia,
• Civil Case Art. 261(3) yes he can
• Criminal case-

Art. 20(4) of FDRE con,

o Accused persons have the right to

produce any evidence including his
own testimony in his own defense
o Presumption of innocence

C.P.C 142(3) CPC

o No oath
o no cross examination
o but, the court can ask
question

6. Is hearsay evidence admissible as a rule?

✓ Exclude hear say evidence ✓ there is no rule which excludes

✓ The evidence must be direct ''hearsay' evidence
✓ the discretion is given to the judge

7. cost less costy

more costy

Evidence in Ethiopia

Is there any code of evidence in Ethiopia?

• No
• evidence rule are found scattered in substantive and procedural laws
• This has attributed to the fact that Ethiopia shares both the civil and common law
features
• Substantive – weight is given to documentary evidence from the civil law eg.
Notary, registration..
• Procedural -from the common law eg. Cross examination, impeachment of
witness….
 •
The present day Ethiopian evidence system is the hybrid of civil law and common
law features.
• Gaps are filled by judges
❖ The Draft Rule of Evidence of 1967
✓ Still not ratified
✓ Copied from the Indian evidence Act
✓ Have also included some unique features of Ethiopian evidence

Generally the sources of evidence in Ethiopia are;

1. Scattered Evidence rules found in the sub and procedural codes

2. Modern and internationally accepted principles of evidences
3. publishing and distribution of case reports—case laws

1.6 Evidence law in civil and criminal cases

Civil case Criminal case

➢ Instituted by individuals ➢ Instituted by government

➢ No mandatory rules of Exclusion of ➢ Exclusionary Rule-

evidence in civil cases
• The right to fair-trail of the accused
• evidence that is relevant and probative • Un equality of resource
of a fact, which needs to be proved to • Harsh consequence eg death penality..
the court, will generally be admissible

➢ Proof- ➢ Proof-

• Preponderance of evidence or • Beyond Reasonable doubt.

probabilities • The burden of proof lies on the public
prosecutor (presumption of
''he who asserts must prove (usually the
innocence)
plaintiff)
ETHIOPIAN CONTEXT

❖ Much emphasis is on documentary E. ❖ Emphasis on witnesses ( emphasis on lay

and expert)
 ✓ Failure to deny facts will be ✓ Silence- if the accused says nothing
presumed as admitted ( Art. 83, 242) then plea of not guilty Art. 133(1),
✓ Specific denial is required ✓ Admitting in reservation- plea of not
✓ Art.83 ……each party shall deal guilty Art. 133(2)
specifically with each allegation of
✓ A right not to answer questions asked
fact of which he does not admit the
truth except damages. by the pp Art. 27(2)
✓ Facts which not specifically denied,
✓ Failure to cross-examine on a
are presumed as admitted
particular point does not constitute
an admission of the truth Art. 140
✓ Judicial admission is conclusive see.
Artr 242 of the civil p. code
• Judicial admission is not conclusive)
❖ Is a decision of criminal bench a judge can order additional
admissible in similar cases of civil evidence- see art. 134(2)
bench? Why/why not?
❖ Is a decision of criminal bench
✓ See art. 2035, 2149 and 145 admissible in similar cases of civil
bench?
❖ A party can be a witness in his own case,
oath, cross-examination ✓ See Art. 159 of the Cri.p.c

❖ The accused can make a statement

against the charge ( on oath, no cross-
examination

1.6. Classification of Evidence

✓ Different authors classify evidence in different ways such as;

• Direct and Indirect Evidence

• Direct and Hearsay Evidence
• Direct and circumstantial
• Oral and Documentary Evidence
• Primary and Secondary Evidence
• Personal and Real Evidence

Direct vs. Circumstantial

❖ Direct Evidence-:
✓ establish evidences directly-
✓ Which can be perceived by sense organ, Eg.
 • What you hear with your ears
• What you see with your eyes
• What you smell with your nose
• What you touch with your hand or body
• What you taste with your mouth or tongue
✓ Is also called positive evidence
✓ oral, documents, photograph-
❖ Circumstantial evidence-:
✓ is also indirect evidence or oblique evidence
✓ is based on inference rather than personal knowledge or observation
✓ tends to establish a conclusion by inference
✓ When you put them together, they form a chain leading to a logical conclusion.
✓ circumstances should be taken cumulatively and not in isolation
❖ Primary Evidence
• The best evidence, original evidence,
• affords the greatest certainty of the fact in issue
• specific and definite and carrying on its surface no indication that a better
evidence lurks behind.
❖ Secondary Evidence
✓ Evidence of hearsay;
✓ Testimony of Contents of a lost document
❖ Oral Evidence
➢ Also called “panel evidence”,
➢ evidence given orally – a verbal testimony of a witness
❖ Documentary Evidence
• Is that evidence which is supplied by a writing or other document.
❖ Personal Evidence;
✓ This is the evidence which a competent witness under oath or affirmation gives a
trial or in an affidavit or deposition
❖ Real Evidence
➢ 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.
 Chapter –Two

Facts, which may be proved other than by evidence

❖ General Rule-; a party who claims the existence of a fact need to proof it (evidential and
legal burden)
❖ Exception-; certain allegation of facts need not be proved before a court
• the court may treat a fact as proven without the need for evidence
❖ Facts need not be proven;-
1. Where a party admits a fact by making a formal admission
✓ waives the production of evidence by conceding that the fact asserted by the
opponent is true
✓ Is stated under rule 3 of DER and Art. 2002 of the civil code
❖ Differences in terminology in criminal and civil cases
➢ Some use admission for civil cases and confession for criminal
cases
➢ Others use admission for both civil and criminal cases
➢ Ethiopia, see article 134(1), 19(5) admission is used in criminal
cases
➢ However, one can hardly see the term confession in civil cases
 ➢ So confession can be defined as an admission made at any time by
the person charged with a crime stating the inference that he
committed the crime
❖ Rationale (why admitted facts need no proof?)
✓ a person does not make himself liable by admitting facts against himself
unless those allegations are true
✓ the admission might be due to repentance of parties
✓ scarcity of resource and time
✓ ART. 242 of civ-p.c and Art 134 of cri.p.c required the court to pass
judgment on the admitted facts
✓ Exception Art.235 (2) in cases of person with disability and art 134(2) of
Cri. P.c plea of guilty
❖ Admission by co-offenders –
➢ Criminal case
✓ the confession of one is not applicable on the other co-offender
✓ See DER 27, Art 27(2) of cr.p.c and Art 19(2) of the constitution
unfair
Why does the admission of one will not be brought as evidence against the other
offender?
• an accused person should first be told that he has the right to remain silent
and his statement will be brought against him ( see art. 20 (1) and 27(2)-
• the co-offender is not a witness(no oath and cross-examination)
• the statement might be made to save oneself by incriminating the other

➢ Civil case
✓ indispensable party
✓ Should the admission of one be considered as admission by the other
party? See civil procedure art.
❖ means of Admission: Formal and Informal admissions
a. Formal Admission
✓ Admission in pleading (in statement of claim or defence)
 ✓ In counter claim
✓ In court ( at first hearing or at trial)
✓ Criminal case to the police Art. 27, to the court
b. Informal Admissions
✓ is a written or an oral statement made by a party or by a person connected
with the party
✓ is most commonly made in a letter, fax or an e mail, during cross-
examination
✓ out-of-court admissions to a person who are not authorized to accept
admissions
✓ it may be disproved or explained (corroborated) by other evidence at
the tri
✓ Its weight is left to the discretion of the court
❖ Classification of Admissions: Judicial and Extra- Judicial
Judicial admission
✓ admissions made as part of the proceeding in the lawsuit
✓ it should be given before the court, which handled the case,
✓ and not in other courts
✓ is concussive
❖ Ways of making judicial admission in civil cases
• Facts expressly admitted in parties pleadings. (Art, 80, 83,242.Civ-p-c
✓ Eg a plaintiff may admit accepting 10 sacks of teff while
claiming the rest 10 sacks
• Facts admitted by implication (Art 83,235 of civ-p-c)
- Failure to specifically deal with statement of claim in
defence and counter-claim during pleading is considered
as admission see art. 235.
- Exception Art. 235(2) disabled persons (minor's, insane
persons, judicially interdicted persons)

- Argument for and against. What if these persons are

represented by legal representative and failed to deny
each fact?
 - Eg. Im not liable for the contract.
• Admission during Pre-trial hearings and at the trial (during investigation)
- Art 241 (during investigation) and 242
• Facts admitted by a party who testifies before a commission
- Art 122 and 124 of civ. P.c the commissioner (either a court
or a person) may examine the parties themselves and may
receive their admissions which are considered as judicial
admission.
- Is it a judicial admission? Can it be conclusive?
• Admission by testimony of the party on the stand or by statement of his
counsel
✓ See art. 261 of the civil procedure code- a party can be a
competent witness in his own case
✓ A party may admit a fact while giving a testimony
✓ Will silence during cross-examination be considered as
admission in civil cases? Why/why not?
• Admission by agreement of the parties
✓ See art. 251 of the civil code
Extra-Judicial Admission( evidentiary admission)
✓ is an admission made outside of the court either orally or in a written form
( letter, fax or an e mail….)
✓ are not made in the course of court proceedings
✓ has to be corroborated with other evidences by witness
✓ are not conclusive
❖ What is Estoppel? -: a legal bar to alleging or denying a fact because of
one’s own previous action or words to the contrary. Read rule 27 and 90 of
The DER
2. Presumption
✓ Is the second condition in which a party is relived from producing evidence
✓ is an inference made about one fact from which the court is entitled to
presume certain other facts without having those facts directly proved by
evidence
 ✓ the proof of one fact is taken as the proof of the other fact
✓ a party who wants to benefit from presumptions must go half way
EG. A child born in a marriage Art. 126 of the RFC
▪ marriage basic fact
▪ the husband is the father of the child the presumed fact
▪ A child born while spouses live separately by agreement- art 169 of the RC
✓ living separately –the basic fact
✓ The husband is not the father of the child-a presumed fact
✓ The possessor of the corporeal chattels as the owner thereof (see art 193 of
civil code).

❖ Why Presumptions

✓ To save time and resource

✓ For procedural convenience ( eg. Presumption of capacity, sanity..)
✓ To give solution for practically difficult matters – dying simultaneously
✓ To protect public interest (wedlock, common property of marriage..)

❖ Are all presumption depend on the proof of the basic fact? ‘

✓ No- presumption of innocence

✓ Argument – this are rather mandatory rules of law or initial allocation of burden of
production than presumptions.

❖ Types of presumption
1. Presumption of fact (permissive inferences)
✓ Are about logical inferences that can be made from a proved fact
✓ Give discretionary power to the judge to presume facts by his own will
✓ The court may make inference form the experience, the common course of
natural events, from proved facts…
• eg. Close relatives testimony on the other
• objecting judges not to preside over cases in which they are a party
✓ are not mandatory, rather they are permissive
✓ are not prescribed by law
 ✓ can be rebutted
✓ if for instance 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.
✓ If, for instance, the distribution of rain is good, one may presume the harvest
to be good
2. Presumption of law.
✓ It is the law which require the judge to presume a certain fact
✓ Where the law requires the court to presume certain fact the court cannot
refuse to presume.
✓ May require a party to prove the existence or non-existence of a certain fact
✓ Or may not need any proof
• Presumption of innocence
• Presumption of sanity (criminal case0
• Presumption of capacity (civil case art. 196
✓ are of two types: Rebutable and Irrebutable presumptions
I. Rebuttable Presumption
✓ The party relying on the presumption bears the legal and evidentiary
burdens of proving the primary fact
✓ It does not give discretion to the court like the first one
✓ Once a party proves the existence of a certain fact, the court is under
obligation to presume the existence of a fact unless rebuted by other party
✓ shifts the burden of proof to the other party
✓ Is identified by words “ shall be deemed/presumed”
• Eg. Art. 1147(1)1. Unless the contrary is proved, he who began to
posses on behalf of another person shall be regarded as a mere
holder.
• Art. 168 of the RFC ( if no sexual intercourse between the 300 and
180 days before the birth of the child
✓ some rebutable presumptions are rebutable on unlimited grounds while
others on limited grounds
 • example of limited ground 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 party who avails himself thereof
• sub (2) No proof by witness is allowed
• on unlimited grounds Art 1147(1) of civil code provides” unless the
contrary s proved, he who began to possess on behalf of another person
shall be regarded as a mere holder
• sub (2) of this Article says “proof to the contrary may be adduced by any
means.
II. Irrebuttable Presumption
✓ Once the existence of the certain fact is proved, then no other evidence
will rebut the presumption
✓ if “X” is true consequence “Y” must follow
• Art. 4 of the civil code
✓ A child shall be deemed to be viable where he lives for forty-
eight hours after his birth, notwithstanding any proof to the
contrary.
✓ 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
✓ 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 የኪራይ ቤቶች አስተዳዳር ድርጅት Vs Mr.
Byronic Areca, fed. Sup. Court cassation bench File No
1768/1997.E.C)

❖ Some argue that irrebutable presumptions are rather mandatory rules of law than
presumptions. Do you a gree? Why/Why not?

✓
III. Permissive Presumptions
✓ Like presumption of law they are prescribed under the law.
 ✓ like presumption of fact, they are not mandatory
✓ are identified by words which say `may presume’
• Art. 22. - Medical examination. Where a person refuses to submit
himself to a medical examination not involving any serious danger for
the human body, the court may consider as established the facts
which the examination had the object of ascertaining
✓ a party cannot enforce the court to reach to such conclusion.
✓ It is up to the discretion of the court.
✓ Is permissive presumption a rebutable presumption?

1) once the court considers the disputed fact as established; the other party
doesn't have the right to rebut it- like irrebutable presumptions.
2) Has the effect of shifting the burden of proof to another party, which
enables him to rebut it. ( are not mandatory unfair and against the sprit of
evidence law )
3) The third argument is the one which consider permissive presumptions as
rebutable presumptions even though the right of the party to rebut the
presumption is depend on the discretion of the court unlike reputable
presumptive

3. Judicial Notice
✓ Is the third ground in which a party is relived from producing evidence
 ✓ Is a circumstances in which the judicial system assumes a factual
proposition to be true even without proof
✓ a judge can be called up on to receive and to act up on either from his know
ledge of them or from enquires to be made by him self
✓ Covers those facts that are so well known and notorious eg, Eg. Addis
abeba is the capital city of Ethiopia, Ginbot 20,
✓ Are left to the discretion of the court
✓ But, sometimes the law may require judges to take some facts eg. Laws of
the country published on Negarit gazeta, the territories under the government
of Ethiopian, the seals of all ministers, 42 (2) of DER
✓ a criteria of ‘indisputability’If there is the slightest doubt as to whether the
fact is true the party may be required to submit proof to the court.
❖ There are three kind facts in which a judge can take notice. There are;
1. Matters of common knowledge
✓ refers to knowledge that is commonly shared by all people
✓ This are facts which are notoriously known
✓ not something one knows ( the judge) because of his academic background
✓ does not have to be universally known to be true or everywhere
✓ Facts may be well-known in the locality where the judge presides
✓ name of places, Custom of the locality can also be included here
✓ the yard stick for a fact to be a common knowledge whether in a particular
territory or nationwide differ from case to cases
2. Matters of public knowledge
✓ These are facts which are not notorious or part of common knowledge but
are facts that can indisputably be ascertained by reference to authoritative
means
✓ These are facts that can be undiputabilty verified by science, history
(battle, art…, natural disaster), if the date in which the Ethio-Eritrea war had
commenced is in dispute
✓ The judge can verify these facts by referring authoritative books or…
• Eg. The judge may not need any evidence whether Kenya neibours
Ethiopia on the south or not..
 • Stamp, seal of high officials
3. Matters prescribed by the law
➢ This are facts which are prescribed by the law
➢ The judge is simply required to take judicial notice of facts by the law
➢ Are conclusive
• For example, the FDRE, national language, higher government
officials and their position Stamp, seal of high officials
➢ Laws of the country officially enacted by ther Negarit Gazetta
• Art. 2(3) of proclamation No. 3/1995 federal Negarit gazeta
establishment proc.
▪ 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
▪ eg. Admission- the plaintiff is not expected to mention the
specific article
▪ relatively easy in civil than common law countries

CHAPTER THREE

Relevance and Admissibility of Evidences

❖ After completion of this chapter, students will be able to ;

▪ Elaborate what fact denotes under evidence law
 ▪ define what fact in issue mean
▪ define what relevancy denotes under evidence law
▪ pinpoint the relevancy of individual items of evidence like-;
✓ relevancy of character evidence,
✓ circumstantial evidence,
✓ judicial judgments and similar occurrences
▪ Denote what admissibility connotes under evidence law
▪ Identify conditions under which relevant facts might not be admitted as evidence
3.1 Facts in issue

What do we mean by fact in issue?

What distinguish fact from fact in issue?

❖ Difference between fact and fact in issue

▪ Fact means
▪ anything or relations of things capable of being perceived
by the senses and includes any mental conditions of which a
person is conscious
▪ so could be -;
• Mental (internal or psychological) like intention,
negligence, good faith…. How can it be inferred?
• Physical (external facts) - that can be perceived by our
five senses.
▪ Fact in issue- ,
▪ is a fact which is disputed between the parties and to be
resolved by the help of evidence
▪ DER 2-: the matter which is in dispute or which forms the
subject of the investigation and fact from which, either by
itself or in connection with other facts, the existence, non-
existence; nature or extent of any right, liability or disability,
asserted or denied in any proceeding

▪ DER 6 where someone has to prove something before a court he has

to prove either facts in issue or facts relevant to facts in issue

❖ What facts need to be facts in issue

• In criminal cases elements of the crime are stated under the
criminal code
 • In civil cases- what is stated in the pleading – it will be framed
by a judge at the first hearing (Art. 80, 246 0f Civ. P. c)
• Differentiate between facts in issue and collateral facts?
✓ which is not of direct relevance to the outcome of the case, but
which may nevertheless be raised at the trial
✓ is a fact which proves the minor issue which is relevant to the major
fact in issue. Eg competence of witness

3.2 Relevant Facts

❖ Over riding principles

✓ For any evidence to be brought to courts, two conditions must be fulfilled

a. First the evidence has to be Relevant

b. The relevant evidence has to not be prohibited by the law

❖ When is a certain fact said to be Relevant?

When it directly or inferentially enables the court to decide the

existence or non-existence of a disputed fact (fact in issue)
Or when it has a “tendency to make the existence” of the fact to be
proved “more probable or less probable”
See, DER 2
The relevancy of any item of evidence is seen in relation with
facts in issue
And it is determined by the logical connection that exists between
two facts. These facts are-

• an item of evidence
• Facts need to be proved or disproved

Does the item of evidence tend to prove the matter sought to be

proved/ disproved?
Its assessment is governed by the cannons of logic, general
experience and common sense
 To be admissible, any item of evidence must be relevant
to a fact in issue

❖ Relevant evidence has two components: Materiality and Probative value

1. Material Relevancy:-

➢ Refers a logical relationship between the evidence and facts in issue

➢ refers the existence of a direct or in direct connection between the evidence
and facts in issue
➢ If no relationship then immaterial
➢ See article 137 of cr. P, c and Art. 263 of civ. P.C ( question put in
examination in chief shall only relate to facts in issue)
➢ Volume Cassession

2. Probative Value

➢ Requires relevant facts to have Capacity to prove

➢ A mere connection but without probative value does not serve any purpose.
➢ While conclusiveness is almost never attainable sufficiency is

''A brick is not a wall”. A party's entire case is the wall; each evidentiary item is a
single brick with a limited function. Relevant evidence need only alter the
probability of a material proposition.

❖ Facts Relevant to facts in issue

Not all categories of facts are stated by the law

 relevancy is always a relative term
both substantive and procedural laws of Ethiopia do not specifically state what
relevant facts are and what facts are irrelevant

• But see article 137 and 142 of the Cri. P. C

Questions put in examination-in-chief shall only relate to facts which are

relevant to the issues to be decided and to such facts only of which the
witness has direct or indirect knowledge.

• See volume 13, cass. No. 75922, Afework Vs. SNNPR, 2004
• Art. 263(1)

Questions put in examination-in-chief shall only relate to facts relevant to

the issues to be decided and only to such facts of which the witness has
direct or indirect knowledge.

ART. 138-: The court may at any stage of the suit reject any document
which it considers irrelevant or otherwise inadmissible, recording the
grounds of such rejection.

❖ The question then is how can courts determine relevant and irrelevant fact?

• Discretion
• Recognized principles
• However, DER gives hint as to which connection of facts should not be
disregarded as irrelevant

A. Facts forming part of the same transaction ( Res-Gestae)

✓ DER 6 Facts which, though not in issue, are so connected with a fact in
issue as to form part of the same transaction are relevant, whether they
occurred at the same time and place or at different times and places.
✓ Res-Gestsae (ተዛማጅ ማስረጃ) is a Latin term, which means -;

• Things done or said in the course of a transaction.

• Is a common law doctrine
 • To be relevant, facts need to form part of the same transaction and
should occur at the same time(contemporaneously) or immediately
before or after the event
• For example, in murder case;

✓ Whatever was said or done by both the deceased and the killer
at the time of shooting
✓ Whatever was said before or after the shooting

➢ I will show you!,

➢ Have mercy please!,
➢ I’m relived now!
➢ Escaping (running of the shooter )

✓ The actions of by staders oh the man is killed!

• The statements must relate, explain, or characterize an event or

transaction
• Facts must be so closely related so as to form part of the
transaction.
• Transaction consist both physical facts and verbal facts (words
spoken).
• Physical facts-; can easily be identified
• Verbal facts

✓ Have to be spontaneous declarations to the existing

occurrence (it is the event itself which speaks not the person due
to the act)
✓ no high time interval (fabrication)
✓ not a result of reflection of thought

N.B Res gestae is based on the belief that because certain statements are made naturally,
spontaneously, and without deliberation during the course of an event, they carry a high
degree of credibility and leave little room for misunderstanding or misinterpretation
 B. Facts being the occasion, cause or effect of facts in issue

Rule 8 of DER reads as follows:-

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

i. Occasion

✓ If “ time, place and condition” do not exist together, the possibility of a creation
act to take place is less probable

▪ Eg. A and B are Engineering staffs. B heard that A is HIV victim

from other staff. One day while A and B were arguing over a silly
matter, B said A, after all you are HIV victim. Why should I argue
with you?
▪ A then gone mad and threw B from the ground plus 2 building as a
result of which B `s two legs were broken
▪ The fact that B heard A is HIV AIDS victim from other staffs is the
occasion or (አጋጣሚ ምክንያት)
▪ B`s insult is the cause (መነሻ ምክንያት)
▪ The injury B sustained is the effect

✓ occasion inquires in to the existence of a favorable environment for the

alleged fact to exist or not
✓ occasion alone may not help much unless there is an opportunity
✓ Where you show occasion and opportunity you are heading towards the proof of
the truthfulness of the alleged theft.

ii. Effect
 ➢ logical causal connection
➢ marks on the ground produced by the struggle or the blood spots at the place where
the murder was committed

iii. State of things.

➢ Can be understood when you compare facts the way they were before and after an
act.
➢ 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.

C. Motive, preparation, and previous and subsequent conduct

❖ 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
✓ Motive precedes intent that if you are given the motive you can prove intent

➢ Eg. 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,

❖ Preparation

▪ Motive leads to a specific intent the realization of which may be preceded by

preparation
▪ normally refers to things you do
▪ Where a person prepares to kill someone he may buy poison, knife, etc.
▪ Thus, proofing the fact of preparation is relevant..
▪ All the surrounding circumstances have to be taken in to account to avoid
mistaken inference.
 ❖ Conduct (previous or subsequent)

✓ The behavior of a person is usually dominated by what he wants to do and

what he has done
✓ Previous. In a murder case; displace his family, sell out his property
✓ Subsequent; abscond or hide or disguise himself

E. When facts not otherwise relevant become relevant.

➢ Some facts though not directly important to prove/disprove facts in issue, in

some instances facts not otherwise relevant can become relevant.
➢ This facts are inconsistent with facts in issue
➢ Though inconsistent, this facts can prove or disprove the existence or non-
existence of certain facts.
➢ Example, Alibi evidence

F. Existence of course of business when relevant.

When there is a question whether a particular act was done, the existence of any
course of business, according to which it naturally would have been done, is a
relevant fact.
Business represents trade, profession and occupation. It can also be said `means
of earning likelihood
Read page 113 of yemasreja hig meserete hasaboch’

3.3Relevancy of Confession

❖ Definition of confession

DER 24. 1.A confession is an admission made at any time by a

person charged with a crime, stating or suggesting the inference that
he committed that crime
Voluntary confessions relevant against maker-confessions, if
voluntary, are deemed to be relevant facts as against the persons who
make them only.
 • To be famous
• To protect others eg family
• Unless a given confession is true it shall not be relevant evidence
• Volume 14 caccession No. 77842 Sami Husein Vs. federal public p 2005

o Admission should not be evasive

o The accused`s confession should be related with particulars of
the crime

✓ Confession made by an accused person is irrelevant if it is the result of any

inducement, threat, promise or any other improper method
✓ See Art. 31 of the Cri. P. c and DER 25 ART 134(2) Art 19(5) of the
constitution
✓ Confessions made to other persons other than person in authority are
irrelevant/inadmissible.
✓ Volume 12, cass. No 57988 p. 96 A public prosecutor can make an
accused person a witness if he wants to.

a. Relevancy of Circumstantial Evidence

❖ Definition

is an evidentiary fact from which an inference may be drawn

rendering the existence or non-existence of a fact in issue more
probable

✓ If a witness testifies what he directly perceived he is said to give

`direct testimony' or `direct oral evidence
✓ difficulty where there is no available witness or because it is
impossible for a person directly to perceive what is in issue
✓ resort to indirect evidence
✓ it allows a fact in issue to be proved inferentially rather than
directly, so it is `indirect' evidence
✓ Enables us to make inferences about the existence and non-existence of the
alleged or disputed fact
✓ Two things has to kept in mind;
 - You may draw inferences and conclusions only from facts that have
been proved to you
- Any inferences or conclusions which you draw must be reasonable
and natural, ( facts should be consistent with one another and
together they should establish the defendant’s guilt beyond a
reasonable doubt

✓ Should reduce the possibility that anyone else could have committed the
offence, and so indirectly identifies the accused.
✓ As far as such circumstances have sufficient connection with the
disputed fact they are relevant
✓ Volume 13, cass.No. 75922 Vs. simachew Vs customes authority, p.
332, 2004
✓ See art. 137 of the Cri.P.C

What do you think is the difference between Direct and indirect evidence?

➢ Advantage of Direct evidence

✓ Deals directly with the fact to be proved

➢ Disadvantage

✓ Its value depends entirely on whether that witness is truthful or accurate

✓ Or whether that item of physical evidence is authentic.

➢ Advantage of Circumstantial evidence

✓ It comes from several different sources, which can be used as a check on

each other

➢ Disadvantage

✓ It is indirect: you must piece it all and determine whether it leads to a

reasonable conclusion about the fact which is to be proved

Generally, we can classify circumstantial evidences in to three

1. Prospectant Evidence,

• Refers the existence of previous thing or mental status

 • the former infer the later,
• is based on the forwards looking probabilities.
• Eg. If the issue is the speed of a car on the time when an accident occurred, the
speed of the car before the accident is a prospectant evidence
• Gold was stolen from a shop, evidences that the gurad was found dead, the key
was unlocked….. all are prospectant evidence.
• Rain in the afternoon (the existence of cloud in the morning)….

2. Concomitant evidence

➢ If the occurrence or not of a certain fact at a specific time is in issue, the

occurrence of other facts at the same time by the same person are relevant as a
concomitant evidence
➢ Specific time, place, condition
➢ Res gestea
➢ Eg. 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

3. Retrospectant evidence

✓ is the opposite of prospectant evidence

✓ the existence of the later fact refer the existence of the former
✓ is based on back ward looking style of reasoning
✓ eg in the robbery case before, all those facts happened after the gold was stolen,
eg, running, absconding from the place, hiding of the gold, selling it to another
person…

3.6 Relevancy of similar Occurrence

➢ Refers similarity to the fact in issue or disputed fact

➢ 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, may increase the probability
 ➢ evidence of similar occurrence may produce an unfair bias

❖ When does evidence of similar occurrence relevant?

✓ Is left to the discretion of a judge. But,

✓ Similar occurrences to be relevant, there must have the same characteristics with
the act in question

• Selling of butter mixing with banana- doing the same act

• Trying to buy goods with forged money for the second time..
• Look Art. ``16 and 17 of the DRE

3.7 Relevancy of Judicial Decision

➢ Criminal conduct may entail civil liability (extra-contractual liability) as well
➢ Such instances give two options to the victim- either to institute a civil claim
in a criminal court or civil court
➢ Civil case- affect personal interest

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

➢ Generally, judgments of civil court are not relevant and binding evidence on
criminal courts.

❖ Is criminal court judgment relevant in civil cases dealing with the same matter?

✓ Difference in common and civil law

✓ Common law

• Proof of conviction or acquittal by a criminal court is not relevant in a

civil court suit dealing with the same matter.Reasons,

o civil court should be as capable as the criminal court

o difference in the degree of evidence require to prove both cases

✓ Civil law
 • In civil law tradition (especially France and Italy) the judgment of
criminal court is binding on civil court
• Civil court is bound to accept the criminal court Judgments as evidence.
• In france the injured party can institute actions for damage either in the
criminal or civil court as he wishes
• If action for damages is instituted in the criminal bench, the case will be
tried based on civil procedure

❖ What about the case in Ethiopia?

❖ Which approach does Ethiopia follow? civil or common law?
❖ can a criminal bench in Ethiopia entertain a civil matter?
❖ Does the accused’s acquittal or convictin make a difference?
❖ Is evidence of the criminal court judgment admissible in a civil case in Ethiopia
dealing with the same matter?

Joined suits and non-joined suits

In joined suits of criminal and civil case
✓ Read Art. 154 and 155of the Cri.P.C
✓ Joinder is allowed by the permission of a court
✓ In this case criminal liability has to be first determined
✓ the criminal conviction will have a direct relevancy to determine the civil
liability of the accused ( beyond reasonable doubt)
✓ If the accused is acquitted, the civil case can be instituted separately.
See ART. 158 of thr Cri.p.c
Non-Joined suits
✓ This is the case when the civil and criminal suits are instituted independently
 ✓ acquittal or discharge of the accused , Art 2149 of civil code specifically
provides that the criminal court judgment shall not have abiding effect up on
the civil court
✓ even though the act is a crime, the accused may be acquitted due to the fact
that the alleged act is made through necessity, self-defense or unforeseeable
accident
✓ In extra-contractual liability the principle is every damage caused shall be good”.
✓ Standard of proof also matters here
2149 of the civil code Effect of criminal on civil action.
• In deciding whether an offence has been committed, the court shall not
be bound by an acquittal or discharge by a criminal court.
Art. 158 of the Cri.p.c Acquittal or discharge.
• Where the accused is acquitted or discharged, the court shall not adjudicate on
the question of compensation and shall inform the injured party that he may
file a claim against the accused in the civil court having jurisdiction.
See also article 145 of the civil pro.c the court, it may of its own motion or on the
application of any of the parties to a suit requires the production of records or
judgments of criminal court.

regarding conviction, no specific rule, however,

• beyond reasonable doubt
• Art 2035 of civil code the accused is extra contractually
liable by the mere fact that he infringes the provision of
criminal code
• Accontrario reading of Art. 158 of the Cri.p.c

See cassession decision file No.78470

➢ አንድ ሰው በ ፍ/ብሄር ጉዳይ ተከሶ ሃላፊነት የለበትም ተብሎ የመጨረሻ ፍርድ ከተሰጠ
ቦሃላ በተመሳሳይ ማስረጃ በወንጀል ጉዳይ ተከሶ ተጠያቂ ነው ለማለት የሚያስችል የህግ
አግባብ ስላለመኖሩ

➢ Art. 2149
➢ Volume 9 Cassesion no 37184, customes Vs. brhane 2001 p.166
➢ Volume 13, cass. No. 46386 Ato hailu tesfeu V. ato brhan mebratu, 2004. P. 259
✓ Conviction in the criminal court should be relevant in a civil court when,
- Same kind of evidences are heard in both courts and
- When there is similarity in the fact in issue of the criminal and civil mater
-

3.8 Relevancy of Character Evidence

✓ Every relevant evidence may be brought before the court merely because it
is relevant.
✓ One of the examples of relevant evidence that has to arouse sympathy or
hostility is character evidence.
✓ Because of this both the laws of the procedure and evidence rules fight
against its presentation.
✓ Character is;
• A compendious summery of a person,s past action, good and bad.
• One may make a conclusion about a character of a person based on
his moral and mental qualities which in fact are derived from what a
person says and does.
• what a person is
✓ Character” includes both “disposition” and “reputation
✓ Reputation is;
• a character known in a particular community
• Character is what a person is, reputation is what the community
thinks he is
• the community opinion not the opinion of a particular individual that
determines reputation
• Affords the basis for an inference as to the actual character;for
behind a good reputation usually there lies a good character, and
behind a bad reputation a bad character
 • Is relevant to show character than disposition
✓ Disposition is
• a character trait known by a close friend or someone with special
relation such as work,…
• the one which may be known by someone who had enough experience
with the individual than by the community in general

❖ The relevancy of character evidence is different in civil and criminal

cases.
✓ In civil cases, character is generally irrelevant unless character itself is in
issue
✓ Eg character is not relevant to determine the existence or non existence of
contract.
✓ However it is relevant to for example in case of defamation where the defendant
can produce evidence of bad character of the plaintiff. See article 2047 of the
civ.p.c
3. In criminal cases
➢ good character of the accused is always relevant (presumption of innocence)
➢ In principle the fact that the accused person has a bad character is irrelevant in
criminal cases. (see Rule 47(2) of DER), article 138 and 149 of the cri.p.c
➢ Art 138 and Art 149 of the criminal procedure code prohibit the disclosure of the
character or antecedents of the accused before conviction
➢ After conviction for aggravating punishment-art. 149

3.9. Relevant but inadmissible facts

✓ Relevancy is a necessary condition for admissibility

✓ If no relevancy, no admissibility
✓ However it is not a sufficient condition to guarantee fact to be admissible in
court of law
✓ there are legal prohibitions against some relevant facts to be produced as
evidence for social and public policy
 ❖ factors determining admissibility

• Waste of time – in cases where ten witnesses testify the same fact
the court may exclude evidence which in the context of the litigation is
merely repetitious or time consuming.
• Consideration of undue delay- concerned with how long the trial
must await the evidence eg. Hearing an evidence in the middle of a trial
(discretion)
• No document which is not annexed or mentioned in the pleading
be brought unless with permission of the court –art. 137(3,4) and 256- for
adjournment
• No previous conviction of the accused is allowed to be brought
before a court before conviction= art. 138 of cri. P. C

4. Admissibility is a question of law than a question of fact

Admissibility is, therefore, abroad concept under which rules for exclusion of
evidence irrespective of its relevancy arte governed.

3.9.2 Public policy and privilege

a. Public policy
✓ Is one justification to make a relevant evidence inadmissible
✓ if they are disclosed, the national interest and governmental secrecy or the
administration of judicial process may be affected
✓ the public interest prevails over the individual interest
✓ there are three categories in this regard, evidence as to affairs of state, in
formation for the detection of crime and helical disclosure
i) i) evidence as to affairs of state
➢ No one shall be permitted to produce any unpublished official records relating to
affairs of state unless with permission of the concerned organ
➢ This is particularly where such evidences are against public interest
 ➢ Eg. government secrets or public security, information concerning the stand and
organization of military force, and other internal security matters

ii) ii) Information for the detection of crime

• No police officer shall be compelled to point out the person or the ways from
which he got any information as to the commission of any offence
• Cases of whistleblowers

iii) iii) Judicial disclosures

• No judge shall be compelled to disclose the judicial process of a given case or

judgment.
• Independence of the judiciary

b. Privilege

✓ Is meant to protect certain social interest which prevails over individual

interest
✓ Eg spousal privilege, professional secrecy,
✓ privilege is one of the grounds of inadmissibility of relevant evidences

5. Parole evidence rule

✓ restricts the use of extrinsic evidence be it oral or written

✓ requires that the party proves his case exclusively by the evidence of the
contents of a writing
✓ prohibits consideration of any evidence which contradicts, alter, vary,
change, and modify any of the terms or provisions of the written agreement
✓ Parties by reducing their agreement to writing are regarded as having intended the
writing they signed to include the whole of their agreement.
✓ Art 2006(2) of the civil code provides for the parole evidence rule for contracts.

• No proof by witnesses or any presumption is admissible against statements

contained in a written instrument.
• However, according to Art 1722, a contract made in a special form shall
be varied in the same form. This means if the original contract was made
in written form, the parties can vary its contents by another written
contract
• even though proof by witness or any presumption is in admissible proof
,by another written contract is admissible against statements contained in
written instrument under Art 2006(see Art 1722 of Civil code.do you
agree

Chapter Four

Oral Evidence
 • after facts in issue and relevant facts are framed, the next step is how to prove or

methods of securing their consideration

• means-:

✓ Verbal evidence:
✓ which is given by word of mouth:
✓ the oral testimony given by witnesses in court
✓ statement made by a competent witness, under oath or affirmation

• a witness is defined as;

➢ Someone who has firsthand 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

• Expert witness-: Not only testifies what he has seen, heard, smelled… but also
gives an opinion applying his expert knowledge of facts he has not personally
observed

4.3 Importance of Oral Evidence

➢ Helps to have rectitude or correctness of decision making
➢ Helps to achieve a degree of evidences required for the case at hand
➢ The credibility of the witness can be checked by cross-examination
➢ In the absence of documentary evidence, it will help the court to pass a decision

6. Common law gives much weight to oral evidence than civil law
7. Competence of witnesses

✓ Who can testify to a court/who can 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) Types of Competency of Witnesses divided into two -:

➢ General competency and Special competency

1. General competency
✓ Refers to the witness` ability to testify to facts he has observed
✓ as a matter of fact, everybody is presumed to be competent
✓ General competency is presumed.

2. Special Competency
✓ refers to the ability to analyze facts about which one testifies
✓ 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.
❖ Grounds of incompetence
➢ Competency is the rule,
➢ incompetence the exception, and that incompetence lies within a very narrow
compass
➢ Grounds of incompetence are;
i). Mental incapacity
ii) Physical incapacity
✓ covers persons, who have visual, hearing, and speaking deficiencies
✓ 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
❖ Examination of witness
a. 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
✓ See, Art. 137 of Cri. P.c and 263 0f the civ. P. c
✓ Questions shall only relate to facts to which the witness has direct and
indirect knowledge
✓ Asking leading question is prohibited ( see. art137(2) of Cri. P.c and 263(2)
0f the civ. P. c
b. Cross-Examination
➢ Is asked to weaken the testimony of a witness
➢ is an absolute right and not merely a privilege
 ➢ See. Art 137(3) of Cri. P.c and 263(3) of the civ. P. c
➢ Is asked to show what is erroneous, doubtful or untrue in the answer given
in examination-in-chief
➢ Leading question can be asked
c. Re-examination
• Is allowed to repair any damage done during cross-examination
• Art. 139 of Cri. P.c
• civil procedure code Article 263(4) the re-examination shall be directed to the
explanation of matters referred to in cross-examination and new matter may not
be introduced in re-examination except by permission of the court

• Hearsay Evidence
✓ Is one kind of oral evidence
✓ Is out-of-courts statement offered to prove the truth of the matter asserted in a civil
suit or criminal charge
✓ Is a type of evidence given by a witness based on the information he has attained
from -:
• The statements made by others
• Does not depend on direct knowledge and observation of facts
• is a mere narration and repetition of what has been said by another who is
not in court to ascertain the fact
✓ Hearsay.

✓ as a matter of principle, is in admissible

Why is hearsay evidence excluded from being admissible?
justifications
➢ is a derived knowledge
➢ not a direct knowledge
➢ Lack of cross- examination
➢ Absence of oath ( the declarant does not testify at the time of speking..)
➢ Testimonial infirmities
✓ (the person who made the statement may have wrongly perceived the
events in question)
✓ The memory of the person who heard the statement, may be affected and
finally there may be distortion of events.
Is hearsay evidence admissible in Ethiopian as a rule?

Argument 1. Yes it is admissible

➢ Reasons-: Art. 137(2) of the cri. P. c and art. 263(1) of the civ.p.c State… such facts only
of which the witness has direct or indirect knowledge’’
➢ It is admissible as a rule and not as an exception.

Argument 2. No it is not admissible as rule.

✓ It should only be admissible as an exception

✓ indirect knowledge’ implies the circumstantial evidences rather than hearsay
evidence
✓ contradict constitutional rights of the accused to confront his accusers as provided
under Art.20 (4) of the FDRE constitution
➢ practice
• no uniform application
• some courts accept it while others reject it
• however, the DER admit hearsay evidence as an exception- see DER 29

➢ Exception to Hearsay Evidence

➢ This are exceptional situation which make hearsay evidence admissible
a. Dying Declaration
✓ Rule 29(a)
✓ Is made by a person who is certain as to his death
✓ A person will not lie at the verge of his death (no motive)
✓ As to Melin, the dying declaration is only admissible in so far as;
• It details the cause of death
• indicates the circumstances of the transaction which resulted in death
• the declaerant, must have had an adequate opportunity to observe the
facts, which he details (he must be a competent witness)
• there should be absence of evidence except the dying declaration)
b. Statements made in the ordinary course of Business
✓ Rule 29 (b)
 ✓ if the statement is made in the current routine of business, it is more likely to be
trust worthy than otherwise
✓ it is more likely to be trust worthy than otherwise
✓ Fewer motives to lie in the day-to-day aspects of ordinary business transactions
than in exceptional private situations.
✓ Additional requirements
• any entry or memorandum made by him in books kept in the ordinary course
of business
• an acknowledgement written or signed by him of the receipt of money; goods ,
securities
• document used in commerce written or signed by him

c. Declarations Against Interest

➢ Defined in rule 29(c) of DER
➢
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.
➢ a person is not likely to make statements against his interest lightly or with
causal regard for truth
d. Statements of opinion as to the existence of a public or general right or

custom.
✓ Defined in rule 29(d)

4.8 Exclusionary rule: Privileges

➢ What do we mean by privilege?

• As a matter of principle everyone is under obligation to testify or give any
evidence required by the court
• However, there is exception to this principle -- privilege.
• Thus, privilege is a freedom from compulsion to give evidence,
• if no privilege, parties will be compelled to testify or give any evidence required
by a court
 • Privilege therefore;
➢ Interfere with truth- seeking function of the law
➢ Operates to exclude good proof due to some social objectives
➢ Why privilege?
✓ To promote ( protect) certain kinds of special relationships
✓ To promote confidential communication within the socially desirable
relationships
• Attorney-client,
• physician-patient,
• psychotherapist-patient, and
• Husband-wife are examples.

RATIONALE

✓ These relationships would not accomplish their purposes, or would accomplish

them far less effectively, without legal protection
✓ to avoid futile efforts to coerce testimony
✓ to avoid likely perjury if so coerced; or
✓ to serve commonly shared principles of privacy, fairness, or morality
✓ to advance economic policies, such as those protecting trade secrets

❖ Types of Privileges
✓ The right against self- incrimination as is provided under the FDRE Con. It
encompasses two privilages;-
a. a right not to take the witness stand
b. if he takes the stand a right to turn away impeachment questions,
1. Governmental Privilege
➢ Certain government records are open to the public, these are called
required report privilege.”
➢ However, some records are excluded from being available to the public to
protect state or military secrets, official information, and the identity of
informers
2. Professional Confidentiality
➢ Attorney-client,
➢ physician-patient
➢ Marital privilege
 ✓ Confidential communication- prevents disclosure of confidential
info regardless of whether the testimony is for or against the spouse ( can
apply in civil and criminal matter)
✓ adverse spousal testimony
• (entirely prevent the spouse from taking the stand as a witness
adverse to other connubial partner in criminal matter)
• Destroyed by divorce

Chapter Five
Real Evidence
➢ 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
5.1 Demonstrative Evidence
✓ 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
✓ 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.
✓ 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
A. General Rules
I. 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
II. THE SECOND is the foundation requirnmnet 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
 III. demonstrative evidence must pass the “three hurdles” of admissibility: relevancy;
materiality; and competency
IV. 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.

5.2 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
✓ 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 ✓ if the document is submitted for
examination of the content of the other purposes than examining the
document 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.

5.3 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

5.4 Best Evidence Rule

Authentication + Best Evidence (the contents of a document can only be proved by
adducing the original document itself)

❖ Best Evidence rule

➢ Is a 18 c. common law 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
➢ Primary Evidence,
• Rule 54 of the draft evidence rules defined it as the document itself
(the original) produced for the inspection of the court
➢ Secondary Evidence;
• is defined under Rule 55
• how to apply it also stated under Rule 56

CHAPTER SIX: BURDEN AND STANDARD OF PROOF

6.1 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 ✓ comes when the plaintiff shows a
Evidence (evidential burden) prima-facie evidence
✓ A party who has a claim or an ✓ Refers the obligation to persuade the
allegation bears the burden of court to the standard required by the
producing evidence nature of the case using the evidence
✓ is the obligation of a party to introduce produced by either party.
 evidence sufficient to avoid a ruling ✓ is determined by rules of substantive
against him on the issue laws
✓ is simply adducing enough evidence

✓ determines whether or not the Rrefers preponderance of evidence

person who shoulders the burden of (civil) and beyond reasonable doubt
production will lose the case (criminal cases)
✓ passing the Judge” as any failure to ✓ The party can win the case when only
satisfy the evidential burden means that he proves persuasively the existence or
the issue will never reach the Jury non-existence, or occurrence or non-
✓ if there is no an evidence on an issue, occurrence of the fact in issue
the case will be decided in favor of the
other party
✓ Has nothing to do with weighing ✓ producing evidence be it circumstantial
evidence. 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 ✓ can’t shift at any stage

the other party if the party makes a
prima-facie case on the issue
✓ can be rebutted by the other party

❖ 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

6. 1.3 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
❖ Burden of proof in case of presumptions
• Rebuttable and irrebutable – the same in civil and criminal cases
❖ Standard of proof
➢ Is the level of proof required in a legal action to discharge the burden of proof
❖ 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 Preponderence and BRD

❖ 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-
✓ The existence of presumption of innocence –art. 20 (3)
✓ The unbalanced position of the parties
✓ He grave nature of criminal punishment