Chapter One: Evidence law General Introduction

1.1.1 Evidence Law defined

Evidence is something, which serves to prove or disprove the existence or non-existence of
an alleged fact.

The party who alleges the existence of a certain fact has to prove its existence and the
party, who denies it, has to disprove its existence or prove its non-existence.

In other words, evidence is the means of satisfying the court of the truth or untruth of
disputed fact between the parties in their pleadings.

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”.

The law of evidence is the body of legal rules developed and enacted to govern:

A. facts that may be considered in court? This is the issue of relevant evidence that one should
adduce before the court to support his allegation.
1. Facts in issue
2. Facts relevant to facts in issue
B. The methods of securing consideration of these facts
1. By proof

i. Real (e.g. documentary, exhibits) evidence

ii. Oral evidence

2. Certain facts, which need not be proved

i. Judicial notice- Facts so notorious as to be facts in public knowledge ,capable

of being verified by authoritative texts
ii. Judicial admission (facts admitted in pleadings, at open court, in examination
of parties, in testimony etc.)
C. The party that must secure consideration of what facts: This is about burden of proof and degree of
proof required to win the case.

D. At the Appeal level evidence law can be said deal with the effect of failure to comply
with rules in any of the above categories of evidence law.

The implications “basic error of law” in general and on evidentiary errors in particular,
the experience of the cassation division shows, among others, the cases depict that there is a
basic error of law when any court renders a decision or makes ruling. (1) When false
evidence is produced against the party (b) by framing an issue which the pleadings or oral
arguments of the parties have not raised or (c) by failing to consider an issue the pleadings
are oral arguments of the parties have raised.

1.1.2 Nature of Evidence law

Where is the place of evidence law in relation to other laws?

Laws may broadly be classified in to substantive and adjective. Adjective laws are
concerned with the method of presenting cases to court proving them or generally
enforcing the rights and duties provided under the substantive laws. While substantive
laws, are those that defines rights and duties.

Law of evidence is categorized under adjective law together with procedural laws, both
criminal and civil procedure.

Is law of evidence more of practical course?

Law of evidence has more of the smell of the courtroom than most law school classes and it
offers the opportunity for some court- room type exercises.

1.1.3 Purpose /significance of Evidence law.

Evidence is the “Key” which a court needs to render a decision. Without evidence there can
be no proof. Evidence provides the court with information.
So the process of proof should be regulated by evidentiary rules and principles in order to
achieve accelerated, fair and economic Justice.

In both criminal and civil proceedings, the law of evidence has a number of purposes. In
short, the law of evidence regulates the process of proof. The rule of civil and criminal
evidence, in conjunction with the rules of procedure, establish the frame work for the
process of proof and the conduct of litigation.

The law of evidence also has amoral purpose by establishing and regulating the rules
relating to the process of proof in proceedings in courts and tribunals. Whilst this moral
dimension is important in civil proceedings, it has special currency in criminal cases as it
reflects the powerful public interest in bringing the guilty to justice, whilst allowing the
innocent to go free.

1.3 Evidence in civil and common law legal systems

There are two major legal systems (legal traditions) in the world.

They are (1) The Anglo - American (or the common law legal system). And (2) The
continental or the civil law legal system.

Is there a difference between the two legal systems regarding evidence rules?

(A) Differences regarding the organization of the rule of evidence.

Common law countries: - have separate rules of evidence or separate code of evidence law.
The rules determine what evidence is admissible and what evidence is not admissible.
Whereas civil law countries: - there is no separate code of evidence law. Rules of evidence
are sparsely distributed in both substantive and procedural laws.

Why the common law countries took the lead in the codification of evidence law?

It is admitted by almost all authorities that the single main overriding reason for the
existence of separate evidence law in common law tradition is the mistrust of Juries.[panels
of some 12 men{non lawyers}] .It is widely accepted that most Jurors have little experience
in analyzing evidence objectively, and many of them have prejudices that are not easy to
suppress .Thus, to control, Jury to objectively analyze evidence, the option was to set rules
which help jury regarding evidence.

B/ Difference regarding the sources of evidence rules

The judges have the authority to made laws including evidence rules/precedent/. So we can
say that in common law system there are judge made laws, while in the continental system-
laws are enacted by the parliament. Thus, here, the judges are required to follow the
decisions of the higher courts.

Do you think Ethiopia follows the precedent system at present time?

Actually, at present time, all courts, whether federal or state, are bound to follow the
decisions made by the federal supreme courts' cassation bench on question of law. (See Art
2(4) of the Fed courts' proclamation Re-amendment proclamation No 454/20005).
Therefore, if the federal Supreme Court’s cassation division passed a decision on question
of law involving evidence, all other subordinate courts are bound to follow it as a law.

However, the precedent system does not works on the decisions involving question of facts
unlike the common law traditions. Therefore, even though the decisions of the federal
supreme courts' cassation bench on question of law involving evidence serves as one
sources of evidence rules, we cannot say that Ethiopia follows the precedent system in its
full sense.

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. This system is a party-lead system in which the judge has no investigative role. Their
function is to listen to the evidence Presented and decide which version of the facts they fell
is closest to the truth. Here, judge acts as an impartial umpire, policing the rules of the trial
game thereby ensuring fair play. Whereas the civil law system employs the ''inquisitorial
system'' of inquiry .Here, the court has the task of making inquiry. It question witnesses,
directs the police investigation, commissions the service of expert witness and examines all
relevant evidences.

(D) The differences on the types of evidences they emphasized

Under common law legal system, the greatest weight and importance is attached to oral
testimony of the parties and their respective witnesses. Whereas in continental law system
like in France and Germany, emphasis is laid on written evidence including notary-
attested records of every sort of transaction, written formalities, registration etc.

(E) Are parties themselves competent witnesses in their own case?

In common law legal systems, parties themselves are competent witnesses in their own case.
However, in accordance with the general view in civil law system, it is considered best if no
one is a witness in his own case.

Are parties competent Witnesses in their own case, in Ethiopia?

To determine whether a party is competent witness to his own case or not in Ethiopian
context, we have to see it in civil and criminal context. Regarding civil proceeding, Art
261(2) of our civil procedure code provides 'If a party wishes to give evidence on his own
behalf, he shall do so before calling his witnesses and he shall then for all practical
purposes be deemed to be a witness.'

However, there is no consensus regarding criminal proceedings as to the question whether

the accused person is competent witness to his own case or not.

As we understand from art 142(1) and (3) of our criminal procedure code, after the
witnesses for the injured party have been heard, the court shall inform the accused that he
may make statement in answer to the charge and may call witnesses in his defense. And if
the accused wishes to make a statement, he shall speak first. But the accused is not required
to make his statements on oath. Moreover, he may not be cross-examined on his statements
even though the court may put questions to him for the purpose of clarifying any part of
his statement. Therefore, some argue that, unlike civil proceedings, the accused who made
statement on his own behalf under Art 142 of Cr.p.c should not be considered as a
competent witness for all practical purpose in the absence of tests of accuracy like cross
examination.

However, other argues that even though it is left to the court to determine how much
weight shall be attached to the testimony of the accused, there will not be any negative
impact on the task of the administration of justice, if the accused become a competent
witness in his own case.

According to Art 20 (4) of the FDRE constitution, the accused persons have the right to
produce any evidence including his own testimony in his own defense. There fore, we can
say that if the accused wishes to produce his own testimony in is own defense, he shall do
so. Since the accused persons have the right to be presumed innocent before conviction,
they shall not be prohibited to produce their own testimony in their defense. (see art 20 (3)
of FDRE constitution) .However ,what is provided under Art 142(3 )of Cr.p.c should be
amended in the manner that enables the prosecutor to cross examine the accused person
who testify in his own behalf as it is in civil proceeding under Art 261(3 ) of Civ.p.c .

F/ Is hearsay evidence admissible as a rule?

As we have said earlier, there is much emphasis on oral argument and persuasion in
common law legal systems. But when they say oral evidence, they are saying the direct one.
The oral evidence must be direct in common law legal systems. Here, there is a rule, which
excluded hearsay evidences. Whereas in civil law legal system there is no rule which
excludes ''hearsay' evidence. Rather, it is left for the court to decide the value of what has
been said.

1.4 Evidence in Ethiopia

The development of the Ethiopian evidence rule is traced back to the ancient days Fitha-
Negest, the document which governs the spiritual and secular life of the society before the
enactments of modern codes. The document contains many provisions dealing about proof
and means of proof.

Do you think Ethiopia has a separate mode of evidence?

You have to take note of the fact that up to now (Until the time of the preparation of this
material) we in Ethiopia do not have a separate and codified law of evidence. Rather our
evidentiary rules are found scattered throughout our substantive laws such as the criminal
law, private laws you find in the civil code, commercial code, etc and adjective laws mainly
the criminal procedure and the civil procedure. This here and there scattered evidence
rules enables the Ethiopian evidence system to share both civil law and common law
features.

The present day Ethiopian evidence system is the hybrid

of civil law and common law features.

Generally, we can classify the present sources of Ethiopia’s evidence rules in to three: -

(i) The evidentially rules which are found scattered throughout our substantive, Procedural
and other proclamations.

(ii) 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. It is
believed that, applying such principles of evidence has a great importance in incorporating
those modern evidentiary principles in to our judicial custom and in developing the general
jurisprudence of evidence in the country.

(iii) Even though the tradition of publishing and distribution of case reports is not as such
developed, case laws are also considered as the third source of evidence rules in Ethiopia.
This is similar with the common laws precedent system in which the lower courts are
bound to follow the decisions of the higher court involving the same question of law or fact.

1.5 Evidence law in civil and criminal cases

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 penal prosecution is instituted by the government
for the purpose of securing obedience to its laws by the punishment or correction of the
lawbreaker.

The court may also exercise its discretionary power to support the defendant's right to a
fair trial by excluding potentially relevant evidences. 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 equality 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. Also, whilst 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 reasons why, there is huge difference regarding the standard of persuasion required in
civil and criminal cases.

The main difference regarding evidentiary rules in civil and criminal

cases lies on the required standard of proof . 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.

Who has a burden of proof in criminal and civil proceedings?

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.
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
deface like “counterclaim”. In such case, the burden of proof lies on the defendant (see Art
258 of civ.P.C.

We have discussed the main differences existed between civil and criminal proceeding
regarding evidence i.e. on burden and degree of proof. However, there are also another
differences. Now we will discus such other differences in line with our evidence rules
shortly.

1. Less importance is attached to the principle of orality in civil proceedings, resulting in

far greater reliance up on the admission of evidence in documentary form. Because 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.

2. There is also a difference between civil and criminal proceedings regarding proof by
admissions. Firstly, in civil cases, the defendant shall deny each and every fact alleged by
the statement of claim specifically. [see Art 83 of civ.p.c]. And 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 242 of civic).While in criminal cases, where
the accused says nothing in answer to the charge, a plea of not guilty shall be entered. This
means the silence of the accused does not amounts to admission.(see Art 27, and 134(1) of
civ.p.c]. Moreover, failure to cross-examine on a particular point does not constitute an
admission of the truth of the point by the opposite party. [See Art 140 of cr.p.c]

Secondly, in civil proceedings, where a party formally admits the truth of a fact in issue in
the case, the fact ceases to be in dispute between the parties, and as such any evidence to
prove the fact will be ruled as inadmissible on the ground that it is irrelevant. To put in
another way, judicial admissions are conclusive in civil cases. And the 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). There fore, unlike civil cases, in criminal cases the task of determining the
conclusive nesses of judicial admission is left to the discretion of the court.

Why judicial admissions are not conclusive in criminal cases?

In criminal cases, the issue may be the question of life and death. So the court shall take a
due care that an innocent person not to be convicted and punished. So that, the courts are
expected to critically examine the reasons behind of the confession. Because sometimes
innocent person may admit the commission of crime to cover another person, for fame or
to be known throughout the world by his criminal act.

Thirdly, in criminal cases, admission shall be made without reservation. However, in civil
proceedings the party may admit the truth of the whole or any part of the case of the other
party.

1.6. Classification of evidence

Evidence is divided in to two: direct and circumstantial.

Direct evidence establishes a fact in issue directly. 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 which the judge is required to
interpret with his senses and includes the physical presence of witness in the witness box
giving rise to an assessment by the judge of the witness’s credibility. It can include any
incriminating admissions by a party in the case.
However, circumstantial evidence is indirect evidence that tends to establish a conclusion
by inference. It doesn't directly tell you or prove the existence or non-existence of the
alleged or disputed fact. But when you put them together, they form a chain leading to a
logical conclusion. For this reason, criminal cases built entirely on circumstantial evidence
are the most difficult to prove the required standard of proof beyond reasonable doubt.
Circumstantial evidence requires the judge to draw generalizations from commonly held
assumptions about human nature.

Can a wrong inference be made from circumstances?

For instance, in a murder case, if you consider the footsteps alone, it can be the footsteps of
any one from the victim's house. And also it does not mean that anyone who buys piston or
knife has an intention to kill a person.

Thus, circumstances should be taken cumulatively and not in isolation of one from the
other. Where the facts are put together, they lead to a certain logical conclusion.

Unit summary

Evidence is something with which you prove the existence of or non-existence of a disputed
fact. Evidence law is basically, dealing with the admissibility or non-admissibility of a
certain piece of evidence.

In common law countries, evidence law is very organized and treated as especial branch of
law. The main reason is the existence of a jury system. In civil law countries, on the other
hand, evidence is found not as a separate body of law but as part and parcel of their
substantive or procedural laws. However, now days, many countries have separate
evidence codes without having the jury system. Our country Ethiopia is also in the way of
preparing evidence code.

Due to their different nature, there are certain differences between civil and criminal
evidences. The one and the main difference is as to the required standard of proof.
The methods of proving allegations may be orally, by documentary evidence, or by real
evidence. Broadly, however, evidence may be classified as direct and circumstantial. The
one that proves directly is called direct evidence and the one that proves indirectly by way
of making inference from a given fact is called circumstantial evidence.

Chapter two: Facts, which may be proved other than by evidence

Introduction
The general rule in both civil and criminal proceedings is that where a party has the legal
and evidentiary burden of proof on a fact in issue, the fact has to be proven by relevant and
admissible evidence.

However, certain allegation of fact by a party does not necessarily need proof. There are
three exceptions to the general rule requiring evidence to be adduced to discharge a legal
or evidential burden where the court may treat a fact as proven without the need for the
party bearing the legal and evidential burdens to put evidence before the court in respect of
that fact.

The first exception applies where a party admits a fact by making a formal admission
either before the trial or at the trial. The second exception applies where the proof of the
fact in issue may be presumed by the court from an inference drawn from one or more
primary facts. And the third exception to the general rule is dealt under the doctrine of
judicial notice. Judicial notice covers those facts that are so well known and notorious that
it is not necessary for a party to prove that fact formally to the court.

2.1 Admitted facts.

What is admission?

Admission is a statement of fact, which waives or disputes with the production of evidence
by conceding that the fact asserted by the opponent is true. Because, what a person himself
admits to be true may reasonably be presumed to be so, and until the presumption is
rebutted, the fact admitted has to be taken as evidence. Because, in the normal course of
things, a person does not make himself liable by admitting facts against him self unless
those allegations are true, and he is expected to know facts relating to him better than
anybody else.

Do you think the term “admission” is applicable in both civil and criminal cases?

In some countries the term “admission” is only used in civil cases and “confession” in
criminal cases. While others used the term” admission” in both civil and criminal cases.
But we can take “confession” as a species of “admission” which is applicable only in
criminal cases.

Why admitted facts need no proof?

Courts are set up to try issues in dispute. When no dispute exists, proof ordinary should
not be required. Thus, where a party admits the truth of a fact in issue in the case, the fact
ceases to be in dispute between the parties, and as such, any evidence to prove the fact will
be ruled as in admissible on the ground that it is irrelevant except in some serious criminal
cases like a homicide case as did in practice.

That is why Art 242 of civ-p.c and Art 134 of cri.p.c required the court to pass judgment on
the admitted facts provided that the court may, in its discretion, require the facts admitted
to be proved otherwise than by such admissions as provided under Art 235(2) of civ.p.c and
Art 134(2) of cr.p.c.

2.1.1 Limitations of Admissions

In some cases ''Admitted facts need not be proved” is less applicable. This is especially true
in criminal cases in which the court may exclude confessions on the grounds of oppression,
unfairness and the like. (see Art 134(2), 135 of cr.pc).

Does confession made by one of the co-offenders (conspirator) admissible against the other
co-offenders?
In the time when one of the co-offenders made a confession affecting him and some other
persons involved in the commission of an offence, the effect of confession shall be limited
only on such person who made it.

As far as the DER is concerned, Rule 27 provides “A confession made by one person
affecting himself and some other person in the commission of an offence is not admissible”.

And this is a widely accepted principle regarding the limitation of admissions. Because, in
the first place, any suspect enjoys a right to silence at a police station. And he shall be
informed that he has the right not to answer and that any statement he may make in his
free will may be used in evidence before the court of law. (see Art 27(2) of cr.p.c and Art
19(2) of the constitution). Therefore, the incriminating statements made by one of the co-
offenders, shall not be admissible on those co-offenders who do not get the opportunity to
exercise the above mentioned constitutional rights. Moreover, admitting the confessions
made by one of the co-offenders on the others will have an adverse effect on the fairness of
the proceedings.

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.

What about in civil cases involving indispensable parties?

The question of indispensable, for instance, may arise in the case when a thing which is
owned by two or more persons jointly, is subject of a dispute. For example, assume 'A' and
'B” are the joint owner of car. And their car caused an injury on 'C” for which 'c'
instituted a suit against the joint owners (A and B) .At trial “A” admitted the allegation of
the plaintiff while “B” denied it. Now the question is may the court consider the admission
of “A” as B'S admission?

If A and B were a joint plaintiffs they shall exercise their rights of recovery concurrently in
proportion to their share in the thing jointly owned where one of them waive their right of
recovery, such right may be fully exercised by the other joint owners. (see Art 1388 of civil
code). While in the case when the joint owner defendants appeared in the first hearing in
which one admits and the other deny the plaintiff's allegation, Art 43 of civ-p.c shall apply
by analogy in which the plaintiff can claim from any one of the defendant most probably
from the defendant who admitted the allegation. (see Art 43(4) of civ.pc).

This means in our case the litigation may continue between “A” and “B” on the question of
contribution. Because “B” may deny his obligation to contribute “A” after the admitted party “A” pays
the full amount of compensation to the victim. Thus, the court shall not take the admission made by
one indispensable party against the other unless one authorized the other to appear and defend the
case in accordance with Art 69 of civ-p-code in which case we consider the admission made by the
party in the trial as if made by the other. But in other cases ,the plaintiff can claim the full amount
from the indispensable party who admitted his allegation, and the litigation shall be continue on the
question of contribution between those indispensable parties.

2.1.2 Classification of Admission: formal and informal admissions

A party may formally admit a fact in the pleadings in the case, i.e. in statement of claim or
in defense or in a counter claim or in reply. He may also admit in open court in the first
hearing or at the trial. Moreover, in criminal cases a formal admission may be made to a
person in authority i.e. to the police officer in answers to interrogations. (Art 270 of cr.p.c).
These all are considered as formal admissions.

While an informal admission is a written or an oral statement made by a party or by a

person connected with the party that is adverse to that party's interests, and is most
commonly made in a letter, fax or an e mail. An informal admission may also be made
orally in a witness's answer to a question asked in cross-examination. It also be made
spontaneously by a person in response to the events given rise to the cause of action.

Mostly, informal admissions are out-of-court admissions to a person who are not
authorized to accept admissions, for example, to a friend.

2.1.3 Types of Admissions: Judicial and Extra- Judicial

What kinds of admissions are there?

Beyond the existence of admissions in the form of formal and informal, facts admitted may
be of two types. These are judicial admissions and extra- Judicial admissions.

Judicial admissions are those admissions made as part of the proceeding in the lawsuit. The mere fact
that the admission is made before the court of law does not make it a judicial admission. To be
considered as judicial admission, it should be given before the court, which handled the case, and not
in other courts as the case in Art 35 of cr.pc. They are ordinary conclusive on the party making them
and may not be contradicted.

Extra- Judicial admissions as opposed to judicial admission are not made in the course of
court proceedings even though in criminal matters they may have been made in the course
of the criminal proceedings. You may think of confession made before the investigative
police.(see Art 27 of cr.P.c).

2.1.3.1 Judicial Admissions 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 destructive in civil case.
The reason is, for one thing, they cannot be contradicted once they are made, and for the
other the court may not require further proof because of less standard of proof required in
civil cases.

Judicial admissions may be made through different ways. Now, we will discuss ways of
making judicial admissions in civil cases.

A. Facts expressly admitted in parties pleadings. (Art 83,242.Civ-p-c A party may

formally admit a fact in the pleadings in the case, i.e. in statement of claim or in defense or
in a counter claim or in reply.

B. Facts admitted by implication (Art 83,235 of civ-p-c)

Denial which is general may be considered as admission by the rule of procedure. (Art 83
of civ-p-code).
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.

Consider Art 235-Evasive denial.

Do you think the court may use its discretion and require any fact so specifically admitted to
be proved?

Consider Rule 50 of the DER

Facts admitted need not be proved

50- No fact need be proved in any preceding which the parties there of or their agents agree to
admit at the hearing or which before the hearing they agree to admit by any writing under
before the hearing, they agree to admit by any writing under their hands, or which by any rule
of pleadings in force at the time they are deemed to have admitted by their pleadings.

Provided that the court may in its discretion, require the facts admitted to be proved otherwise
than by such admission.

Art 235(2) of civ.p.c and the last sentence of Rule 50 of DER give the discretionary power
to the court in requiring the admitted facts to be proved by evidences. In civil proceedings
especially of out of court admissions, the court may require the admitted fact to be proved
since in one hand they are not conclusive, and on the other hand they can be contradicted
at a later time.

Of course, if the court has any doubt about the truth or clarity of an admission it should
require proof of the admitted fact by the party who relies upon it. But this is usually true in
criminal cases in which the accused may admit for various reasons, than in civil
proceedings.

A. 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 code or at a later time when called up on by
the court to indicate whether he admits a fact or not (see Art 243 of civ.p.c).

May a party deny a certain fact in first hearing of which he has admitted previously in
his pleading?

As we can understand form Art 241(1) (especially of the Amharic Version) the court shall
ask the party or his pleader whether he admits or denies such allegation of fact as are made
in the statement of the other party and as are not expressly or by necessary implication
admitted or denied by the party against whom they are made. This means, for instance,
regarding the defendant, the court itself ask him whether he admit or deny the allegation
which we denied in his statement of defense (In Amharic “ የካደውን ነገር ያምን ወይም ይክድ
እንደሆነ ይጠይቀዋል”.From this we can understand that he can admit what he has denied in
his pleading Unless the court allow him to amend his pleading under Art 91 of civ.p.c,
because admission made in pleading is conclusive and one can not withdraw later except
with the permission of the court.

A. Facts admitted by a party who testifies before a commission

Where a court can not exercise its power to take evidence and to examine parties and their
witnesses for any of the reasons stated in Art 127 of civ.p.c, it may delegate its power to a
commissioner. (a court or a person) (see Art 122 of civ. P.c

E. Admission by testimony of the party on the stand or by statement of his counsel

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

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

However, the cross-examined party on the other side should able to challenge the cross-
examining party. Otherwise, in civil cases, his silence may be considered as admission of
the fact in question.

F. Admission by agreement of the parties.

Facts may be admitted by a party in a written agreement made before the hearing with the
other party. This may be made even in response to a for mal request to admit.

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.

Is there any rule in our civil procedure code, which provides the above procedure?

According to Art 252 of civ.p.c, the parties may agree as to the question of fact or of law to
be decided between them and they may state the same in the form of an issue.

2. In criminal Cases.

In criminal cases, Judicial admission refers to plea of guilty or not guilty .After having read
the whole charge to the accused, the court asks the accused whether he pleads guilty or not.
If he pleads guilty without reservation the court may enter plea of guilty. 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. (see Art 134 of civ-p.code).
Thus, some argue that the mere response of the accused i.e. “yes I am guilty”, for the
question of the court whether he pleads guilty or not, should not be considered as
admission. The statements of the accused to be considered as admission he has to get the
chance of responding each and every elements of the offence charged. In other words the
court shall ask him whether he pleads guilty or not of each elements of the offence charged.
Thus, they argue that only the judicial admission given in such away is considered as
conclusive evidence if it is made voluntarily and intelligently.

However sometimes especially in serious criminal case like homicide case, the court may
require the public prosecutor to produce evidence despite that the fact is admitted. The
reason for requiring further proof is in one hand, the accused might have made the
admission due to various reasons like to cover another person or to make unknown a
certain fact, to be famous by his criminal act especially in the case which gets large media
coverage even though he is innocent. On the other hand, the very high standard of proof in
criminal cases still justifies further proof, because, in some cases the confession of the
accused alone may not have the capacity to prove the commission of a crime beyond
reasonable doubt.

2.1.3.2. Extra- Judicial Admission: Civil and criminal case

The second type of admission is evidentiary admission. This is an admission made outside
of the court either orally or in a written form.

However, as said earlier admission is destructive in civil cases. Thus, the evidentiary
admissions may produce the effect of estoppel. Estoppel is a rule of civil action which
prohibits a person, who by his statement or conduct caused other person to act in away he
would not have otherwise acted in the absence of such statement or conduct, to deny his
statement to justify of the other person who acted up on such statement (see Rule 27and 90
of DER). But any way, the discretion is given to the court as to how much weight shall be
attached to evidentiary admissions. If such an out of court admission is proved and not
contested in any way the court may well believe the fact admitted to be true.

What is the effect of extra Judicial admission in criminal cases?

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.

Is admission made before the courts other than the court having Jurisdiction over the case,
considered as evidentiary admissions?

In criminal cases, there is a difference on the admissibility of confessions made before the
trial court, and before other courts. But the confession made before other courts may be
excluded if it is contradicted by the accused person. For instance, a confession made before
first instant court under Art 35 of cr.p.c seems to be conclusively admissible since it is made
before the court of law. But this is not true. Because the accused is required to confess
before woreda court while he is in police custody. Thus, if the accused chooses he can at his
trial contradict or explain his statement at the preliminary inquiry. However, on the other
hands, a judicial admission may not be contradicted if it is made voluntarily and
intelligently.

2.2 Presumption

2.2.1 General introduction: basic fact and presumed fact

What is presumption?

The second situation where a party is relieved of the legal burden of proving a fact in issue
is where the fact comes with in the operation of presumption. Presumption is an inference
made about one fact from which the court is entitled to presume certain other facts without
having those facts directly prove by evidence. In this, the proof of one fact is taken as the
proof of the other fact.

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.
Assume “A” and “B” are husband and wife who actually lives separately in consequence of
an agreement conclude between them, during which the child is conceived and born. Now
the dispute arise between “A” and “B” on the question of paternity.

Here a child born in wedlock is presumed to be the child of the husband, because you
expect sexual relations between the two (see Art 126 of RFC).The fact that “B” is the father
of the child is presumed fact, and the fact that “A” and “B” are husband and wife is a basic
fact.

Why we need presumption?

There are policy considerations supporting the creation and invocation of presumptions.
Presumption serves a number of purposes.

The law draws presumption on those facts which are more likely to exist just to save time.

Sometimes the law may provide presumptions for procedural convenience. For instance capacity is
presumed under the law unless the other side alleges the disability of person in which case
he is required to prove that such person is under disability.(see Art 196 of civil code).But if
the court requires proof of capacity in all cases, it is possible to imagine how may it create
procedural inconvenience.

The presumption may also be created under the law to protect public policy or greater
interest of government. . For instance, in order to protect the peace and order of the family,
the law presumed all property acquired during marriage as a common property of spouses.
(See art 653 of civil code).

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

As said earlier, presumptions are circumstantial evidences from which if one fact (basic
fact) is proved to exist, the alleged fact exists. Thus the 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.

What kinds of presumptions are there?

Presumptions can be divided as presumption of fact (permissive inferences) and

presumption of law. Presumption of fact is logical inferences that can be drawn by
experience upon proof of the basic fact. Such inferences are mostly true in the normal
course of things.

However, as the naming implies 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 a certain fact the court cannot refuse to presume. These presumptions
used the phrase” shall be deemed or presumed”.

2.2.2 Presumption of fact

Presumptions of fact are not mandatory, rather they are permissive in the sense that the
court can take it or leave it at its discretion. Since they are not prescribed by the law, some
believed that presumptions of facts are not true presumptions although, unlike some
presumptions, they can be rebutted, and unlike others, they require proof of a basic fact.
Nevertheless if a presumption of fact arises and other side calls no evidence in rebuttal, the
court is not bound to reach the conclusion indicated as it is in the case of true
presumptions.

Consider Rule 88 of the DER. Is it mandatory?

Court may presume existence of certain facts

The court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and public and
private business in their relation to the fact of the particular case.
2.2.3. Presumption of Law

The bases for the creation of presumptions of law may be different. Some of presumptions
are natural presumptions through which the law recognized the application of such natural
events. For example, the presumption under Art 3(1) of civil code is of such kind.

And another strong factor which explains the creation of a presumption is probabilistic
relation or logical relation. Even a simple relation may be an adequate explanation, like “If
fact “A” is true, then fact. “B” is probably true”. More often, the law may need a narrower
statement to justify a presumption, such as “ If fact “A” is true and the opponent party has
no evidence suggesting fact “B” is not true, then “B” is probably true”

What kinds of presumptions of law are there?

Presumptions of law are of two types: rebutable and irrebutable presumptions.

2.2.3.1. Irrebutable Presumption

Do all presumptions have the effect of shifting the burden of proof to another party?

In principle, presumption has the effect of shifting the burden of proof from the party in
who's employed in case of presumption of fact and reputable presumptions. However,
conclusive or irrebutable presumption is really an awkwardly expressed rule of law which
can not be disproved by another party. Thus irrebutable presumptions do not have the
effect of shifting the burden of production to another party.

2.2.3.2 Rebutable presumptions.

A rebutable presumption of law operates where, on the proof of admission of primary fact,
and in the absence of further evidence, another fact must be presumed. The party relying
on the presumption bears the legal and evidentiary burdens of proving the primary fact.
Once the party has adduced sufficient evidence to establish the presumed fact, the
presumption will apply unless the other party successfully discharges its legal and
evidential burden to rebut the presumption. Thus, rebutable presumption of law unlike
irrebutable presumption has the effect of shifting the burden of proof to another party.
Can one rebut the presumption by adducing any evidence?

In case of rebutable presumption, sometimes the law restricts the ground upon which the
presumption may be rebutted, and in other cases does not impose any restriction on how to
rebut the presumption. Thus some rebutable presumptions are rebutable on unlimited
grounds while others on limited grounds. These differences may also have its own impact
on the standard of proof required to rebut the presumption.

2.2.3.3 Permissive presumptions

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.

2.3 Judicial Notice

What I s judicial notice?

It refers to facts which a judge can be called up on to receive and to act up on either from
his knowledge of them or from enquires to be made by himself for his own information
from sources to which it is proper for him to refer.

For example, facts like city of Addis Ababa is the capital of Ethiopia, Gnbot 20 is a holiday,
criminals lead unhappy lives are among those facts of which the court will take judicial
notice.

What facts are subject of judicial notice?

Judicial notice without inquiry at common law is taken in respect of those facts that are so
much part of common knowledge that they require no proof and cannot be rebutted in
evidence. The court may also take judicial notice without inquiry of certain matters
prescribed by the law.
However, judicial notice after inquiry applies to those facts that are not so notorious or
part of common knowledge of which notice may be taken by the judge after he has made
appropriate inquires .The inquiry may include referring to text books, works of reference,
certificates from government officials and oral statements from witnesses.

Summary

All facts do not necessarily be proved .If all facts have to be proved, this may sometimes
result in an unnecessary delay of justice. Thus, in this unit, and you have seen situations
where one need not produce evidence. These situations are admitted facts, presumed facts
and judicial notice.

Admitted facts need not be proved. They have power to withdraw a fact from being in issue
and there by avoid need for evidence. All admissions do not have the power to produce the
above effect except the judicial admission.

The second situation is where the law takes it for granted that certain things are presumed
to be true if certain factual situations are satisfied these are called presumption.

The third situation is when the court is bound to take judicial notice, that is, when the court
simply accepts the known facts in the locality as they are without further proof. Such facts
are: facts of common know ledge and verifiably facts that can be indisputably be verified
from text.

Chapter three: Relevance and admissibility of evidences

Introduction

Evidence must be relevant and--that is, it must have a tendency to make a fact at issue in
the proceeding be more or less probable than it would be with out the evidence..If evidence
is not relevant to some fact of consequence to determination of the action, then there is no
reason to admit it.
However, the relevancy of evidence is ordinarily necessary condition but not sufficient
condition for the admissibility of evidence. for example ,relevant evidence may be excluded
if it is unfairly prejudicial ,confusing or cumulative due to different social or policy reasons.

3.1 Facts in issue

Evidence is not relevant in the abstract but rather to some preposition, and for the evidence
to be admissible it must be relevant to a material proposition.

What is fact?

Fact means any thing or relations of things capable of being perceived by the senses and
includes any mental conditions of which a person is conscious. Thus, every thing is a fact
the only difference is that some of the facts are mental (internal or psychological facts) and
some of the facts are physical (external facts). The latter are the one's that can be perceived
by our five senses.

What is fact in issue?

Fact in issue is the fact, which is disputed between the parties and to be resolved by the
help of evidence.

If admissions are made to all proposition of fact, which constitute the claim, there is no
issue to be framed and the parties are called parties not at issue (see Art254 of civ.P.c).

May one case contain subordinate facts?

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

For instance, first, those facts which affect the competence of a witness to give evidence is a
collateral fact in issue.

Secondly, fact which affects the credibility of a witness is a collateral fact since the weight
to be attached to witness's evidence depends, in part, on an assessment of the witness's
credibility.

Thirdly, collateral facts may have to be proved as a condition to the admissibility of certain
types of evidence.

3.2 Relevant facts

What is relevancy? And how can we determine relevancy?

Relevancy is the first principle of both civil and criminal evidence .The fact in issue in a
case and any collateral facts can only be proved by adducing relevant evidence. Whatever
the form of the evidence, whether testimonial, documentary, real, direct or circumstantial,
to be admissible evidence needs to be both logically and sufficiently relevant. Relevant
evidence always has a bearing on the search for the truth determination of a past event.

What is a relevant fact?

In accordance with Rule 3 of DER, “Relevant fact” means any fact which directly or
inferentially leads to one of the conclusions necessary to the proof or disproof of a fact in
issue and a fact is said to be relevant to another when one is connected with the other in
any of the ways mentioned in the Rules.
Notice that relevance is always a relative term that is in saying that evidence is relevant we
must cite a material proposition to which it is relevant. Because evidence is not relevant in
the abstract but rather to some proposition and for the evidence to be admissible it must be
relevant to a material proposition.

Therefore any evidence which proves fact

in issue directly or which proves relevant
fact is relevant evidence.

Relevant evidence has two components: materiality and probative value. Materiality refers
the relational aspect of relevancy. For evidence to be relevant a logical relationship needs to
be established between the evidence tendered and the fact to be proved. This connection
may be either direct connection or indirect connection with a fact in issue. If the evidence is
offered to help prove a proposition which is not in issue the evidence is immaterial.

Under Art 137 of cr.p.c and Art 263 of civ.p.c questions put in examination in chief shall
only relate to facts which are relevant to the issue to be decided. Moreover, under Art 138
of civ.p.c the court may at any stage of the suit reject any document, which it considers
irrelevant or other wise in admissible.

Thus it would be proper to raise an objection under Art 146 of cr.p.c or Art 270 of civ.P.c
on the ground of irrelevancy. In the law of evidence we are not interested only in the
connection but in the capacity to prove or disprove a fact. Thus, the second aspect of
relevancy is probative value. This requires relevant fact to have the capacity to prove.

The point is that mere connection but without probative value does not serve any purpose.
It is, therefore, clear that relevancy refers to the probative value of evidence and its
relation ship to the purpose for which it is offered.

Assessment of relevance is governed by

the cannons of logic general experience
and common sense.
3.3 Facts Relevant to facts in issue

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

Rule 7 of DER state that: Any fact is relevant which, though not in issue, is so connected
with a fact in issue as to form part of the same transaction whether both facts occurred at
the same time and place or at different time and place,

Res-Gestsae is a Latin term, which means things done or said in the course of a transaction.

What is spontaneous declaration?

Spontaneous declaration is an excited utterance made to a dramatic fact in issue. A

dramatic fact, in turn, is a fact so surprising that it is capable of producing a spontaneous
un reflected verbal declaration in a normal person like fighting, car accident, or murder. It
is not because one trained himself to cry so. They are so natural to every person who is
healthy so startling happens, he cries. It does not matter who cries as long as the one who
makes the declaration was at the essence of the dramatic fact that caused the declaration.
Therefore, any one who heard the utterance may quote in the court even thought the
person made it doesn't testify.

What is the measure of time to satisfy spontaneity?

Spontaneous declarations are usually made of the time of the occurrence and the time of
the declaration.

Is the intensity of the act necessary to determine whether the event is startling or exciting?

Some persons may cry to a simple occurrence due to the high rate of sympathy they have,
and the other not. Thus, sufficiency of starting or exciting should be determined
subjectively. What is important is the effect (i.e spontaneous declaration), not the intensity
of the act on the declarant.

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.

(1) Occasion

The time, place and condition of a certain act help us to predict the possibility or
impossibility of something. If “ time, place and condition” do not exist together, the
possibility of a creation act to take place is less probable.

ii. Cause or effect

When there is logical causal connection between two facts, back and forth inferences that
are inference about the causes from the effect or about the effect from a given cause can be
made.

iii. State of things.

This is something that can be understood when you compare facts the way they were before
and after an act. If books are arranged in a certain way, a person lives in a certain way; a
person's health etc. before a certain happening or after, this is about state of things. When
this state of things is disturbed, it must be because of something that indicates a certain
happening.

C. Motive, preparation, and previous and subsequent conduct

(I). 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. Generally, speaking the voluntary acts of sane
persons has an emotion or motive.

Motive precedes intent that if you are given the motive you can prove intent. In criminal
cases where intention is the most important, proof of motive is a step forward to the proof
of intention.

ii. Preparation

Motive leads to a specific intent the realization of which may be preceded by preparation.
Preparation is normally refers to things you do to a result by trying to obtain the means.
Preparation on the part of the accused to accomplish the crime charged, or to prevent its
discovery or to aid his escape, or to a avert suspicion from himself are relevant on the
question of his quilt.

iii. Conduct (previous or subsequent)

The conduct of a party in relation to a fact in issue is relevant whether such conduct is
previous or subsequent to the occurrences of the fact in issue, for example, murder, theft
etc.

The behavior of a person is usually dominated by what he wants to do and what he has
done. Where a person wants to kill a person he may make all types of preparation, displace
his family, sell out his property, etc. This is previous conduct or conduct before the killing
of a person. After the killing a person may not feel comfortable and may attempt a number
of things not to be detected or identified, or he may at least abscond or hide or disguise
himself. This is conduct subsequent to the fact to be proved which is also relevant.

3.4 Relevancy of Confession

Unless a given confession is true it shall not be relevant evidence. And court may require
the prosecution to call evidence. This is the case of excluding a confession on the ground of
unreliability. (see Art 134(2) of cr.p.c).

However, even though the given confessions are true, they are made inadmissible if they
are obtained in violation of rules of procedure. Here, improperly obtained confession
evidences are rejected not due to the fact that they are irrelevant but because of legal
prohibition made in furtherance of interests like privacy and human dignity.

The out of court confessions shall be made in accordance with the procedure of Art 27 of
cr.p.c. Accordingly, the investigating police officer shall inform the suspect about his right
he has during the process of investigation(i.e. the right not to answer, access to a solicitor )
and the effect of his statement (i.e. any statement he may make may be used in evidence.).
Thus, the confession obtained from the defendant who had not been cautioned before being
asked to in criminate himself may be considered inadmissible and may be excluded on the
ground of unfairness.

Illegally obtained evidence including confessions presents the court with dilemma: to have
a policy of excluding it every time would result in too many guilty defendants being
acquitted there by diminishing law enforcement. However, to have a policy that continually
condones police malpractice would damage the credibility of the criminal justice system in
the eyes of the public. In an effort to resolve this dilemma, the criminal courts shall have
discretionary powers to exclude illegally and unfairly obtained evidence to be exercised in
the particular circumstances of each case.

3.5 Relevancy of Circumstantial Evidence.

As said earlier, circumstantial evidence is evidence that proves a certain fact indirectly.
This evidence is depends on the surrounding circumstances.

The disputed fact is not the one stands independently. Rather it is directly or indirectly
connected with other facts in terms of place, time or occasions. The occurrence of a certain
thing may contain the occurrence of the other thing or there may be another fact created
following the occurrence of the fact in issue. Thus, as far as such circumstances have
sufficient connection with the disputed fact they are relevant.

What kinds of circumstantial evidences are there?

Generally, we can classify circumstantial evidences in to three;

They are 1. Prospectant evidence, (When the existence of a certain fact is at issue, the
existence of previous thing or mental status is relevant. This is the case when the former
infer the later, or which is based on the forwards looking probabilities.)

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.) and

3. Retrospectant evidence. ( is the opposite of prospectant evidence. It is the case

when the existence of the later fact refers the existence of the former or which is based on
back ward looking style of reasoning.)

3.6 Relevancy of similar Occurrence

What do you understand by similar occurrence?

When we talk about similar occurrences, the question that comes to mind is “similar to
what?” Here, similarity is similarity to the fact in issue or disputed fact.

However, similar occurrence shall not be used to prove a fact in issue. Because, like
character evidence, evidence of similar occurrence may produce an unfair bias, in the sense
that it is likely to divert the attention of the court from the fact of the issue before the court
to the general character of the accused since character is the cumulative effect of similar
behavior of a person.

When does evidence of similar occurrence relevant?

Even though evidence of similar occurrences are not relevant to prove a fact in issue, they
are relevant to prove whether a person did something intentionally or accidentally.

Similar occurrences to be relevant, there must have the same characteristics with the act in
question. Firstly, if the issue to be resolved before the court is fraudulent act, it is not
relevant to produce previous acts of theft. Secondly, previous similar fraudulent acts must
have similar characteristics with the fraudulent act in issue.

Moreover, sometimes a single similar occurrence may not be strong enough to indicate the
intention of a person towards the commission of the alleged act. Because if it were once you
would say it is done by mistake, but where it is repeated it should be intentional. However,
even though the similar occurrence is a single one it may be relevant if the defendant knows
his wrongful act immediately after the occurrence.

3.7 Relevancy of Judicial decision.

One act may entail both civil and criminal liability, because most of the time a criminal act
entails extra- contractual liability. Since civil cases unlike criminal cases, affects the
personal interest of the victim it is up to the victim to institute or not to institute a civil
actions. Thus, in the case when a certain act entails both civil and criminal liability of a
person, the plaintiff will have two options regarding his civil claim. First, he may institute
his civil claim in civil court independently. The civil court shall not wait the judgment of a
criminal court. Both criminal and civil courts have to decide cases brought before them
independently upon the evidence offered to each of them. Secondly, the plaintiff may apply
to the criminal court trying the same case for an order that compensation be awarded for
the injury caused. This is the case of joinder of criminal and civil cases.(see Art 154 of
cr.p.c). However, the court may refuse the plaintiffs application due to one of the reasons
provided under Art 155 of criminal procedure code.

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

Most of the time, a civil cases may get judgment with in a short period of time than the
criminal cases. For instance, a civil court may pass judgment on the admission of the
defendant in firsthearing. (see Art 242 of civ.P.c). While a criminal court may take longer
time in examining evidences. Thus, a civil court may pass judgment before a criminal
court. In such case, a question as to the relevancy of civil judgments may arise. However, in
the case of joined suits, a court always first adjudicates the criminal case before the civil
case. (see Art 158 cr.p.c) Thus, in case of joined suits the question of relevancy of civil
judgments may not be aroused.

Generally, judgments of civil court are not relevant and binding evidence on criminal
courts. This is due to the reason that the standard of proof required for each case, criminal
or civil is different.

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

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

However, in civil law tradition (especially France and Italy) the judgment of criminal
courts (whether conviction or acquittal) are binding on civil court.

Is evidence of the criminal court judgment admissible in a civil case in Ethiopia dealing with
the same matter?

To answer this question let us examine the relevancy of criminal court judgment in two
cases: 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. This is due to the reason that the standard of
proof required in criminal case is higher than that of civil case. Thus, evidence which is
sufficient for criminal case is more than enough to prove liability in civil cases. Here, once
the civil liability of the accused is determined by the criminal court, the injured party shall
not be allowed to institute the same civil suit in civil court due to the principle of Res-
judicata. (see Art 5ofciv.p.c)

However, where the accused is acquitted or discharged, the question of civil liability or
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).Thus; the acquittal judgment of the criminal court does
not have any relevancy in civil cases.

B. Non-Joined suits

This is the case when the civil and criminal suits are instituted independently. Here, the
result in criminal court may be either acquittal or conviction. If the result in the criminal
court was acquittal or discharge, Art 2149 of civil code specifically provides that the
criminal court judgment shall not have abiding effect up on the civil court in deciding
whether an offence has been committed. Because, in the first place a certain act may be
considered as a non- criminal act due to the fact that it is not provided in criminal code.
Moreover, 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. But, on
the other hand, in extra-contractual case the slogan is “every damage caused shall be good”.
Thus, a person who is acquitted in criminal case may be held liable in civil case.
Furthermore, the “beyond reasonable doubt” standard of proof in criminal case justifies the
non-admissibility of criminal acquittal in civil case.

However, even though the court is not bound by an acquittal or discharge by a criminal
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. (see Art 145 (1) of civ-p.c)

Is criminal court conviction binding on civil courts?

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.

3.8 Relevancy of character evidence

What is meant by “Character”?

The word “character” includes both “disposition” and “reputation”. Thus, we may have
character evidence of two types. The first is evidence of disposition of a party in a party in
a particular instance for a particular character trait related by someone who has had
enough experience with the individual(e.g. friend, work mate or family member) to know
that disposition. This is when the witness gives his own personal opinions about the
character of an individual based on his personal dealings with the said individual. Thus,
this character is the one which may be known by someone who had enough experience with
the individual than by the community in general.

However, the second type of character evidence is evidence of general reputation in a

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

 The relevancy of character evidence is different in civil and criminal cases .

In civil cases, character is generally irrelevant.

In criminal cases good character of the accused is always relevant.

How do you think does good character become relevant?

The good character of accused may be the base for the presumption of innocence. A man
with a good character may be less likely to commit a criminal act than a man with a bad
character.

Do you think a bad character is relevant in criminal cases?

In principle the fact that the accused person has a bad character is irrelevant in criminal
cases. (see Rule 47(2) of DER). Art 138 and Art 149 of the criminal procedure code prohibit
the disclosure of the character or antecedents of the accused before conviction. If they are
disclosed they have the potential to arouse the judge's hostility against the accused without
regard to the evidence adduced to prove the alleged crime. The judge might decide that it
would not be such a terrible thing to convict him even if he did not commit the crime
because he is bad person who does not deserve to be free. Thus, a conviction should be
based upon proof of the elements of the offense before the court and not up on inference
drawn from a prior bad character.

Moreover, bad character evidence of the accused is only irrelevant before conviction. After
conviction, bad character evidence may be used to aggravate sentence. (see Art 149(3) of
cr.p.c).

Good character will be produced for mitigation and bad character for aggravation. (Art.
148 and 149 of cr. P. code).

3.9. Relevant but inadmissible facts

Relevancy is a necessary condition for admissibility. However it is not a sufficient condition

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

However, relevancy does not guarantee admissibility, for countervailing factors may weight
in favor of exclusion. 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.

When does evidences may be rejected by the court?

An evidence may be rejected or not received by court for two reasons. One, if it is not
relevant and secondly, if there is a legal prohibition behind it. Therefore, in short, to be
admissible, evidence has to be relevant to a material proposition, without any exclusionary
rule preventing admissibility.

There are also some facts which are relevant but which may not be proved.

3.9.2 Public policy and privilege

1. Public policy.

Even 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. This is
because if they are disclosed, the national interest and governmental secrecy or the
administration of judicial process may be affected. Protecting governmental interest means
protecting public interest. And the public interest prevails over the individual interest.

There are three relevant evidence which may but be proved in the name of public policy.
These are evidence as to affairs of state, information for the detection of crime and helical
disclosure.

(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.
(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. If we compel the police to disclose the
person who gave information, it may discourage others not to give information about the
commission of the crime.

(iii) Judicial disclosures.

No judge shall be compelled to disclose the judicial process of a given case or judgment.
This is to protect the principle of independence of judiciary.

2. Privilege

The purpose of excluding certain relevant evidences from being produced before the court
of law in the name of privilege is to protect certain social interest, which prevails over the
individual interest.

 Spousal privilege provides to protect the marriage or the family from being
dissolved due to the break of secrecy by one of the spouse.
 Similarly, there are privileges provides to protect professional secrecy like in the
cases of client- Advocate, patient -physician, and priest- son relations.

3 -Parole evidence or extrinsic evidence in relation to document

Can you state the best evidence rule? Does the principle of the best evidence rule have an
exception?

The best evidence rule provides that the best proof of a document's content is the document
itself. A written document can only be proved by the instrumentality of itself. (Read rule
53-57 of DER and, Art 2003 of civil code)

What is the essence of the parole evidence rule?

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

The rational behind the parole evidence rule is that the parties by reducing their agreement
to writing are regarded as having intended the writing they signed to include the whole of
their agreement. The terms and provisions contained in the writing there because the
parties intended them to be their.

Summary

In this unit, we have tried to see what relevant evidence is and the rules and the exceptions
as regards relevant evidence. Evidence is said to be relevant if it has a tendency to prove or
disprove a certain factual allegation. Relevant evidence may be direct or circumstantial.
Obviously, if you can prove the fact in issue directly, that is recommendable. But this is not
mostly possible and therefore, you prove the existence of the relevant facts or surrounding
facts or circumstances from which the court can make an inference about the existence or
non-existence of the disputed fact.

Even though the codes no where specify what categories of facts are relevant, the DER
gives hint as to which connection of facts that should not be disregarded irrelevant like the
facts of motive, preparation, state of things, res gestae and the like.

Evidence which is relevant is generally admissible. However, there are times where
relevant evidence may be inadmissible. Therefore, number of reasons prohibits relevant
evidence from being admitted like trial concerns and public policy concerns.

CHAPTER FOUR: ORAL EVIDENCE

4.2 Oral evidence: Definition

“Verbal evidence: which is given by word of mouth: the oral testimony given by witnesses in
court”.

That is, oral evidence is ordinary kind of evidence given by witness by word of mouth.

All statements which the court permits or requires to be made before it by witnesses in
relation to the matters of fact under inquiry; such statements are called oral evidence.

In general, evidence of witness is given orally, and this means oral evidence. The expression
“oral evidence”, therefore, includes the statement of witness before the court, which the
court either permits or requires them to make.

4.3 Importance of Oral Evidence

The importance of the law of evidence in general and oral evidence in particular is highly
related with the goals of an adjudication, which is a form of dispute resolving mechanism
and the fundamental aim of adjudication is correctness of decision making.

Specifically the purpose of the law of evidence is to assist in the achievement of rectitude or
correctness of decision making by ensuring that by any means the evidence before the court
is relevant and reliable to establish the true fact. This is done by several mechanisms:

First, much evidence that could be overemphasized or which could lead to erroneous
inferences being drawn is inadmissible.

Secondly, the law imposes a requirement that a fact in issue must be proved to an
appropriate degree of probability. In criminal trials the burden on the prosecution to prove
the accuser’s guilt beyond reasonable doubt and preponderance of evidence is applied in
civil adjudications.

Thirdly, the process of cross-examination provides a mechanism for testing credibility of

witness and revealing to the tribunal of fact any vested interests, bias or mistakes adversely
affecting the cogency of their testimony.
The other main importance of oral evidence is in case of absence of documentary evidence.
This is true especially in criminal cases that most of time it is hard to get documentary
evidence.

4.3Nature and Development of Oral Evidence in Different Legal Systems

A. Common Law
In common law legal system, oral evidence is given considerable weight and will usually
prevail over written evidence.

Lastly, one important point in common law in relation to the oral evidence, is-so called
“preparation of witnesses”. In common law, counsel would normally prepare his witnesses
for the hearing in order to avoid surprises during the trial and to make sure that the
witness statements are accurate.

B. Civil Law

In the civil law legal system, all oral witnesses are the courts’ witnesses, though generally
speaking the parties tender them. This is what is called ‘inquisitorial.’ There is
substantially no cross-examination and for practical purposes none at all by the parties or
their legal representatives. The witness in effect makes his statement in his own words…
there being no “hearsay rule” rule. It is for the court to decide the value of what has been
said.

Finally, in civil law, the preparation of witnesses is strictly forbidden. The attorneys are
normally not allowed to discuss the issues related to trial with witnesses out of court and
may face disciplinary sanctions if they breach this rule.

There is less emphasis on oral arguments and examination.

4.3Competence of witnesses
What do you think must a person fulfill to be a witness?

Ordinarily, competence refers to capacity of a person to do something.

Thus, 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

There are general competency and special competency.

i) General Competency

General competency refers to the witness` ability to testify to facts he has observed. In
simplistic terms, it is about telling to the court what one has heard, seen, smelt, touched,
etc. 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.

To put it in another way, competency of a person is determined by his ability to perceive,

remember, communicate and understand the duty to tell truth.

ii) 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.

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.

A Lay witness is a witness with no expertise in the matter concerning which he testifies
beyond that of the judge.

4.5.1 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.

There are few grounds, in the Rule 39 of the Court Rules of 1943 and Rule 92 of Draft
Evidence Rule, which make a person incompetent from testifying before courts of law.
These are

4.5.1.1 Mental incapacity

The incompetence of mentally incapacitated persons was a ground for raising objections in
both the common law and the Ethiopian legal system.

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.

Thus, the witness must be able to perceive, to understand and to communicate in order to
be a competent witness. In addition to this, the DER in Rule 104(1) includes a second test
for the competency of a child or mentally infirm witness.

Thus, by way of interpretation mentally defective persons are permitted to have the right
to tell to the court what they have in mind because there is inherently presumed civil right
of persons to stand as witness before courts. In proactive too, courts accept any witness
when necessary for both civil and criminal cases, though the general provision in the civil
code dealing with contracts excludes some persons from being witnesses to a contract. This
exclusion does not continue to the effect that they are not capable enough to testify in
connection with civil matters for civil cases are connected with the preponderance of
evidence to make one of the parties the winner of the suit.

4.5.1.2 Physical incapacity

This covers those persons, who have visual, hearing, and speaking deficiencies. Such
persons can, in principle, perceive the occurrence or non-occurrence of certain events.
However, defects such as blindness, deaf or dumb may impair the power of observation to
make a given witness incompetent to testify. However, according to the general rule,
physical incapacity is no bar to a witness's competency as long as he can understand the
questions put to him and give rational answers to those questions.

4.5.1.3 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.
However, a witness may be asked about prior convictions to impeach his credit. In
Ethiopia, if the witness is also the defendant, the prosecutor may not impeach his credit by
proof of prior conviction at any time prior to conviction in the case before the court.
4.5.1.4 Interest in the out come of the case as ground of incompetence
Interested persons could have been competent witnesses if he had divested himself of his
interest or if it has been extinguished or is released liability.

There is no such restriction in the present times. The ground has no relevance with regard
to the competency or incompetence of a witness. Simply, the witness is presumed to be
competent if he meets the requirements laid down as:

- As per Art 93 of the DER, in all civil proceedings the parties to the suit and the
husband or wife of any party to the suit, shall be competent witnesses; and
- As per Art 94 (1) & (2) of the DER in criminal proceedings against any person, the
husband or wife of such person shall be a competent witness if called by the accused,
or for an offence committed against the wife or husband such wife or husband shall
be a competent witness for the prosecution.
4.6. Examination of witness

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.

4.6.1 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. This is to mean 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. And as clearly
provided in 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.

The other important point to be considered is that the prohibition leading question in
examination-in-chief. (Art. 263(2) of civil procedure code and Art.137 (2))

4.6.2 Cross examination

After a party examines his witness in chief, his opponent has right to cross-examine him.
Cross-examination follows immediately the examination-in chief, unless the courts for some
reason post pones it.

Cross-examination is the method by which a party to an action probes the credibility of an

adverse witness.
Cross-examination is a constitutional right constituting an important aspect of due process
of law and in criminal cases of the right of confrontation. Thus, cross-examination is an
absolute right and not merely a privilege.

It expressed as follows, “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 questions may be put in cross-examination, which is similar to article 137(2) of
criminal procedure code. (Art. 263/3 cip.code/).

Finally, it was directly provided that one of the fundamental rights of the accused under
article 20(4) of the Constitution of Federal Democratic Republic of Ethiopia (FDRE), which
stated as follows:

Accused person have the right to full access to any evidence presented against, to adduce or to
have evidence produced in third own defense, and to obtain the attendance of and
examination of witness on their behalf before the court.

4.6.3 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 is confined to issues that were covered in cross-examination.

Article 139 of the criminal procedure reads as follows; The public prosecutor, the accused
or his advocate may in re-examination only ask question in the purpose of clarifying
matters which has been raised in cross-examination”, where as, in case of civil procedure
code Article 263(4) states as follows” 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.”

4.7 Hearsay evidence

This is a type of evidence given by a witness based on the information he has attained from
the statements made by others. For many reasons hearsay is in principle inadmissible.

Hearsay is a kind of evidence, made by another person other than the one who testify it
before the court, and it is a kind of evidence which does not originate from the individual's
direct knowledge and observation of facts sought to be proved, but from the mere
narration and repetition of what has been said by another who is not in court to ascertain
the fact.

4.7.2 Justification for exclusion of hearsay statements

Hearsay is what a witness who does not have first hand information but heard about
something from a person and testifies before a court. That is, if the statement was not made
in his presence or hearing and he subsequently came to know of it through some other
source, he can not appear as a witness, for his knowledge is a derived knowledge and is
nothing but hearsay and it is a maxim of law that hearsay evidence is not relevant.

Is hearsay evidence admissible in Ethiopian as a rule?

There are different out looks regarding the admissibility of hearsay evidences in Ethiopia.
Both Art 137(1) and Art 263(1) of the Ethiopian criminal procedures and civil procedure
codes respectively provide that “questions put in examination in chief shall only relate to
facts which are relevant to the issue to be decided and to such facts only of which the witness
has direct or indirect knowledge’’. Here, some provides that the phrase “indirect knowledge”
in the above provisions include ‘hearsay evidence’. Thus, they argued that, in Ethiopia
hearsay evidence is admissible as a rule, not as an exception. While, other argue that the
phrase ‘indirect knowledge’ implies the circumstantial evidences rather than hearsay
evidence. They provides that since admitting hearsay evidence as a rule is against the
constitutional rights of the accused to confront his accusers as provided under Art.20 (4) of
the FDRE constitution, we have to admit hearsay evidence only in exceptional
circumstances as that of common law countries. When we see the practice of our courts it is
clear there is confusion on admissibility of hearsay evidence. There is no uniform
application of the rule; some judges admit it while others do not.
Even though, the provisions of our procedural laws are not clear as to whether hearsay
evidences are admitted as a rule or as an exception, our DER Considered hearsay evidences
as an exception. (See Rule 29 of DER).

The basic justifications for exclusion of hearsay evidence are:

A. Lack of cross- examination

B. Absence of oath
C. Testimonial infirmities
A testimonial infirmity is a concept dealing with problems of misperception, faulty
memory, ambiguity and distortion in relation to an oral statement of an out of court
declarant.

4.7.3 Exception to hearsay evidence

There are certain exceptions to the hearsay rule, which makes the hearsay evidence
admissible.

1. Dying Declaration (Art. 29/a/ of DER)

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.

Note also that, the justification for allowing evidence of dying declaration in the absence of
the original seems to be necessity of evidence. If the original declarant is dead or cannot be
found, there could be no better evidence than the hearsay.

2. Statements made in the ordinary course of Business (Art 29 of DER)

1) any entry or memorandum made by him in books kept in the ordinary course of
business or in the discharge of a professional duty; or
2) an acknowledgement written or signed by him of the receipt of money; goods ,
securities or property of any kind; or
3) a document used in commerce written or signed by him; or
4) the date of a letter or other documents usually dated, written or signed by him.
3. Declarations against interest
Defined in rule 29(c) of DER as:

When it is against the pecuniary or proprietary interest of the person making it, or
when, if true, it would expose him or would have exposed him to a criminal
prosecution or to a suit for damages.

Generally, there is an assertion to this 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.
Defined in rule 29(d) which says:

When it gives the opinion of any such person, as to the existence of any public
right or custom or matter of public or general interest of the existence of which, if
it existed, he would have been likely to be aware, provided it was made before any
controversy as to such right custom or matter has arisen.

4.8 Exclusionary rule: Privileges This sub-topic will discuss the exception to the right
not to be compelled to testify and duty of every person to testify.

The term privilege means a freedom from compulsion to give evidence, or a right to
prevent or bar evidence from other sources, usually on grounds unrelated to the goals of
litigation.

Most privileges are designed to promote certain kinds of relationship, and particularly to
promote confidential communication with in the socially desirable relationships. So,
privileges should not be conditional and must be protected at any time because uncertainty
of coverage at the time of the communication reduces the encouragement to communicate.

4.8.1 Policies underlying privileges

As just indicated, a common policy underlying privilege is to encourage desirable
communication with in certain kinds of special relationships, for purposes that society
particularly wishes to foster. The privileges for confidential communications in the
attorney-client, physician-patient, psychotherapist-patient, and husband-wife contexts are
examples.

A second and distinct policy is to protect the desired relationship itself, even to the extent
that it is not dependent upon confidential communications. Thus, to foster the marital
relationship, many jurisdictions recognize a privilege of one spouse to refuse to testify
adversely to the other.

Other policies may be to uphold the integrity of a profession.

Other privileges operates to advance economic policies, such as those protecting trade
secrets, or to encourage voluntary compliance with law, as in the case of privileges for
certain required reports to government agencies, which may also incorporate
“housekeeping” concerns about disruptive requests for documents and document loss.

4.8.2 Types of privileges

1. The right against self- incrimination

Definition and the substance of the privilege

The privilege against self-incrimination guaranteed by the FDRE Constitution

encompasses two privileges (1) the privilege of the criminally accused, which includes both
(a) a right not to take the witness stand and, if he does take the stand, (b) a right to turn
away impeachment questions that might open up other crimes committed by him (in case
he takes a stand it means he has waived his right in that case). (2) The privilege of other
civil or criminal witnesses to turn away particular questions that might open up crimes
committed by them. “Open up” in both instances means increase the person’s exposure to
criminal prosecution or criminal liability.

2. Governmental privileges
Certain records required by the government to be kept or submitted may be attended by a
“required report privilege.”

3. Professional confidentiality
The attorney-client and doctor-patient privileges.

4. Marital privileges

First, the confidential communications privilege protects confidential communication made

during the marital relationship, so as to foster such communications. Second, an unwilling
spouse called to testify against the other spouse may have a privilege to refuse, so as to
avoid rupture of the relationship. Third, some jurisdictions permit a spouse to prevent the
other spouse from testifying against him/her, even if the testifying spouse is willing. As with
most privileges, the statutes and the judicial interpretations must be examined closely, but
certain generalizations can be made.

SUMMARY
Oral evidence is the most important mechanism for proving a certain fact in issue or a
relevant fact. It is ordinary kind of evidence given by witness by word of mouth. the
witness must be a person with knowledge of the fact to be proved that he got either directly
or indirectly. Though it is the basic evidence to prove a certain fact, more weight is given to
it in the common law legal system countries than the civil law. The Ethiopian tradition of
litigation has always depended on the importance of oral evidence.

As oral evidence is to be made by witnesses, they shall be competent to give a valid

testimony before the court. The principle with regard to competence is that every physical
person is capable of giving his testimony before a court. The only requirements are that the
person must have the capacity to comprehend the facts for which he wants to testify and
that he must understand the consequences of giving false testimony. The grounds of
incompetence are minority and senility, physical impairment and professional
incompetence. These grounds will be impediments as long as they affect the capacity of the
person to comprehend the facts or the understanding of the effect of giving untrue
testimony. For instance, a child of whatever age can testify to the extent of his
understanding of the fact and consequences of his testimony.

Being a witness is both a right and duty of individuals. If anybody having the knowledge of
a certain fact wants to testify, he has the right to do so. On the other hand, a person with
some information which is necessary for the determination of a dispute can be obliged to
give his testimony. The concept of privilege is the only exception for this rule. A person
with privilege will either not be allowed to testify or will not be forced to testify.

Right against self incrimination is one type of privilege. A person will not be obliged to give
a testimony on a fact if that fact will reveal his criminal act. This right is a constitutionally
guaranteed fundamental right of individuals.

Privilege can also emanate from the need for secrecy in some government offices.
Communication made by a patient with his doctor in the course of treatment is also a
privileged statement and cannot be disclosed by the doctor and the court cannot force the
doctor to give such evidence. The same applies with the attorney-client relationship.
Marital communication is also privileged with some exceptions.

CHAPTER FIVE: REAL EVIDENCE

Real evidence comprises of documents and physical objects in various forms. Not all
documents and physical objects are real evidences to prove a fact unless they satisfy the
tests of authentication and corroboration, respectively.

5.1 Demonstrative evidence

Demonstrative evidence concerns itself with any type of physical objects which are
capable of being inspected by the court and demonstrate the existence of a fact in issue.

Physical evidence or demonstrative evidence is any evidence introduced in a trial in the

form of a physical object, intended to prove a fact in issue based on its demonstrable
 physical characteristics. Physical evidence can conceivably include all or part of any
object.

Demonstrative evidence 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, simulation, and models.

Demonstrative evidence is evidence that illustrates or helps explain oral testimony, or

recreates a tangible thing, occurrence, event, or experiment.

Here is a list of illustrative facts used as demonstrative evidence:

 Plaster casts or molds
 Scale models
 Maps, charts, diagrams, and drawings
 Police composites, mug shots, sketches
 Photographs
 Microscopic enlargements
 Videotapes
 Computer reconstruction or animation
 Scientific tests or experiments

A) General rules

1. The most general rule is that there must be some other piece of evidences: a fact, an
object, or testimony that needs to be illustrated or demonstrated. Presentation is actually a
two- stage process: first some issue of fact, then the explanation or demonstration stage.
Demonstrative evidence is intended to be an adjunct to testimony,
The next most general rule involves the foundational requirements for demonstrative
evidence. 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.

Identification—the demonstrative evidence must be an exact match to the underlying

evidence or the testimony illustrated. This requirement is the same as with real evidence.

3. The next most general rule is that demonstrative evidence must pass the “three hurdles”
of admissibility: relevancy; materiality; and competency. means the demonstrative
evidence has something to do with the reason the trial is being held, a point at law , a
question of guilt or innocence, etc. materiality means it goes directly to the purpose of
illustration, is easily understandable, produces no wayward inferences, and is not just an
exercise in “educating” the court or jury. Competency means it’s the kind of thing that fits
with the décor and decorum of the court, is on the up-and-up, ethical, and doesn’t taint the
court or subvert the justice process.
4. The last most general rule is that demonstrative evidence must pass an additional
balancing test for relevancy__ a weighing of what is probative/ prejudicial. Probative is
what is relevant to “cinch” the case for the prosecution by anticipating all defenses.
Prejudicial is whatever inflames the passions and prejudices of the jury. 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

Documentary evidence 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 basic differences of documentary and physical evidence, a seemingly simple but
complex distinction.

a) A piece of evidence is not documentary evidence if it is presented for some purpose other
than the examination of the content of the document.

Documentary evidence is any evidence introduce at a trial in the from of hard or

soft(electronic) documents.
Documentary evidence is subject to specific forms of authentication, usually through the
testimony of an eyewitness to the execution of the document, or to the testimony of the
witness who able to identify the handwriting of the purported author. Documentary
evidence is also subject to the best evidence rule, which requires that the original document
unless there is a good reason not to do so.
5.3Authentication of Documentary Evidence

Documentary evidence is subject to specific forms of authentication for its reliability,

usually through the testimony of an eyewitness to the execution of the document, or to the
testimony of the witness able to identify the hand writing of the purported author..

Unless a documented is authenticated it may not be admitted as proof.

5.3.1 Modes of authentication

A) Admission of authorship by the writer

The writer him self may admit or concede that he is the author of a certain document and
if this admission is a formal admission it will serve as a conclusive proof to the issue of who
the author of the document is?

B) Proof of signature or handwriting

C) Presumption as to documents not produced

According to Rule 74 of the DER, courts shall presume that every document called for and
not produced after notice to produce was attested, Stamped, and executed in the manner
required by law.

D) Comparison of signature /writing with others admitted or proved

Another mechanism of authentication is to compare the writings or signature of the

contested document with other writing proved to be authored or signed by the same
person. (Art. 59/1/)
E) Opinions of experts

Authentication by expert witnesses refers to proof of authorship depending on the opinion

of a person who has specialty on identifying the writing of persons. These persons are
called expert witnesses for they form conclusions based on inferences. DER states this here
under in rule 42.

5.4. Best evidence rule

Authentication alone is not a sufficient for the admission of documentary evidence as proof
but must also be qualified by the best evidence rule, which states the contents of a
document can only be proved by adducing the original document itself.

5.5 Proof of contents of documents

Rule 53 of the draft evidence rules stats that the contents of a document may be proved
either by primary evidence (this is the best evidence) or by way of exception that secondary
evidence may be used to prove the content of a document.

ii) Secondary evidence

The contents of documents may be proved by secondary evidence where primary evidence
could not be found. Secondary evidence is the second next alternative for proving the
contents of a document and is defined under rule 55 of the draft evidence rules.

Summary

As discussed in detail in this chapter, real evidence refers to the manner of ascertaining
alleged fact by physical observation or inspection by the court of the fact in issue. In other
words, real evidence is a fact, which could be over looked, sensed, or investigated by the
judges themselves against the fact in issue. In this type of evidence, the court does not
depend on testimony of witnesses.

In proving the existence or non-existence, or occurrence or non-occurrence of asserted

facts by real evidence, the court may over look on things held as exhibits, physical
appearance of suspects of victims of crime etc. When this is not possible, represented
models of physical realties such as photographs, x-rays, charts, graphs, diagrams,
computer animations and other demonstrative evidences could be used mostly in support
of testimonial evidence. However, demonstrative evidence must be corroborated in order to
be admitted as evidence.

The other important type of evidence discussed under this chapter is documentary
evidence. It is the most reliable sort of evidence. But, in order the contents of documents to
be reliable and admissible, they have to be authenticated. The manner of authentication
may be by the acknowledgement of the one who has prepared them, by concerned
government officials, or based on expert opinion as the case may be. As the best evidence
rule dictates, primary (original) documents should be produced not copies except in special
cases as discussed in the entire text.

CHAPTER SIX: BURDEN AND STANDARD OF PROOF

Burden of proof refers to the obligation to prove allegations, which are presented, in a legal
action.
6.1 Meaning and concept of burden of proof

Burden of proof is a term, which describes two different aspects of burdens, burden of
production and burden of persuasion.

The burden of proof may require a party to raise a reasonable doubt concerning the existence
of the fact by preponderance of evidence or clear and convincing proof or by proof beyond
reasonable doubt .In criminal cases all the elements a crime must be proved by the
government beyond reasonable doubt.
6.1.1 Burden of production
A party who has a claim or an allegation bears the burden of producing evidence to
enable the court believe that there is an issue in the case.

Burden of production of evidence determines whether or not the person who shoulders the
burden of production will lose the case.
Such person carries the risk of failure to produce an evidence because if there is no an
evidence on an issue or, if the evidence does not satisfy the court, the case will be decided in
favour of the other party. Therefore, the person shouldering the burden bears risk of losing
the case.

6.1.2 Burden of persuasion

This type of burden of proof is the second burden that litigant party bears. This is
determined by rules of substantive laws. This burden is simply adducing enough evidence
to raise an issue must be distinguished from the burden imposed on a party to persuade the
tier of fact to fined for him/her any particular issue. This burden of persuasion, beyond
reasonable doubt in criminal cases and by preponderance of Evidence in civil actions.

6. 1.3 Burden of proof under the evidence law of Ethiopia

A) Burden of proof in civil actions

The burden of proof under civil law of Ethiopia is dependent up on the issue to be proved
or the allegation (claim) raised by the party. It is to mean that as the issue in a case varies
the burden to proof shifts from one party to the other. Where the plaintiff is entitled to
begin the proceeding, he/she is the one to prove the issue so that he/she bears the burden of
proof. However, in case of affirmative defense where the defendant is entitled to begin, he
shoulders the burden of proof on the grounds he may raise as a defense.

I) Burden of Production in civil cases

Art 259(1) of the civil procedure code provides that the burden of producing evidence in
support of a claim is imposed on the plaintiff. While sub- article 2 of the same provision
imposes burden of production of evidence on the defendant. This article clearly stipulate
that both the plaintiff and the defendant shoulder burden of production of evidence on the
same case proving facts oppositely. This is to mean that the plaintiff has burden of
producing evidence on the cause of action. and the defendant do so on the grounds of his
defense or on facts of his counter claim. Both the plaintiff and the defendant bear the risk
of their failure to produce evidences to prove their respective interest.
ii) Burden of persuasion in civil cases

The burden of persuasion differs in civil and criminal cases. As it is mentioned earlier, in
civil case the litigant is expected to convince the court by producing preponderance of
evidence. Where as in criminal case there by producing evidence and convincing the tier of
fact /court/ beyond reasonable doubt. The failure of the party having burden of persuasion
to persuade the tier of fact is measured, more or less due to the fact that the judge is left in
equilibrium as to the existence of the fact in civic cases generally. The party has burden of
persuasion as to the fats he must put in his pleading. The plaintiff has burden of persuasion
at least as to elements of his cause of action. The defendant again has burden of persuasion
as to the ground of his defiance so that he can rebut the evidence produced by the plaintiff.

B) Burden of proof in criminal cases

In criminal proceedings the prosecution has burden of poof on the elements of his charge.
Such an expression is provided under art 136(2) of the criminal procedure code of
Ethiopia.

Article 20(3) of the FDRE constitution also imposes burden of proof on the public
prosecutor tacitly there by providing presumption of innocence for the accused.

I) Burden of Production in criminal cases

Burden of production refers to Burden of going forward with evidence on a particular

issue. This refers to burden of producing evidence and burden of proceeding with the
evidence on a particular issue at start of a case. As the public prosecutor has/burden of
production of an evidence he/she bears the risk of non-production. Art 141 of the criminal
procedure code provides to this effect.

On the other hand the defendant /accused/ has burden of producing rebutting evidence as
clearly provided under Art 142 of the criminal procedure code.

ii) Burden of persuasion in criminal cases.

Burden of persuasion pertains to establishing the fact in the judge’s mind beyond
reasonable doubt.

Here the public prosecutor is duty bound to beer burden of persuasion at least as the
elements of the offence charged likewise the defendant is not left without being imposed
burden of persuasion where a case has already been made against him. It is obvious that
the prosecutor always has considerable burden of persuasion.

6.1.4 Burden of proof in case of presumptions

There are different types of presumptions like permissive presumption, mandatory rebut-
able presumption, and mandatory irrefutable /conclusive/ presumption. Presumptions
could be of presumption of facts or presumption of law. Thus, the effect of these
presumptions on the burden of proof is to be discussed here under.

The question as to who bears burden of proof contrary to the presumption is determined
by the fact that in favor of whom is the presumption provided. i.e. if the presumption is in
favor of the accused and such presumption is rebuttal one the public prosecutor has
burden of proof to the contrary. And if the presumption is in favor of the plaintiff, the
defendant has burden of adducing rebuttal defensive evidence. There fore, the defendant
bears the burden of proof to the contrary and bears the risk of his failure to rebut it.

6.2 Standard of proof

The "standard of proof" is the level of proof required in a legal action to discharge the
burden of proof, that is to convince the court that a given proposition is true. The degree of
proof required depends on the circumstances of the proposition. Typically, most countries
have two levels of proof or the balance of probabilities:

 preponderance of evidence - (lowest level of proof, used mainly in civil trials)

 beyond a reasonable doubt - (highest level of proof, used mainly in criminal trials)

The concept ' beyond reasonable doubt' is not adopted by Ethiopian laws despite practical
adoption by judges in many cases. Coming back to the underlining rational for the
requirement of high standard of proof in criminal proceeding is that:
 1. The existence of presumption of innocence
2. The unbalanced position of the parties in criminal cases unlike that of civil cases
3. The irreversible grave nature of criminal punishment, if once erroneously executed
i.e. in order not to punish innocent.

Summary

Burden of proof constitutes burden of production (evidentiary burden) and burden of

persuasion (legal burden). The former refers to making available of sufficient amount of
evidence at the disposal of the court. On the other hand, burden of persuasion is to mean
the obligation to persuade the court to the standard required by the nature of the case
using the evidence produced by either party.

As to up on whom the burden of production and persuasion lie, almost all jurisdictions
accept that the one who asserted cause of action should able to prove the existence of the
alleged claim. To state in different language, the one who is going to take risk of failure to
produce evidence and persuade the court has burden of proof of his case.

In general, the plaintiff and public prosecutor in civil matters and criminal proceeding
respectively bear burden of proof. The justification for this rule is because in most cases it
is believed that positive assertion is easier than negative disclaim in proving one’s
innocence. In addition, in criminal matters the underlying reasons for the adoption of the
general principle that the prosecution must prove the guilt of the accused is because many
courtiers including Ethiopia enshrine in their constitution, individuals’ rights to be
presumed innocent until proven guilty and the right not to incriminate one self realizing
the right to remain silent. Defendants in criminal proceeding are not duty bound to defend
them selves/ to testify against themselves/ and are entitled to remain silent through the
trial.

Notwithstanding the application of the general rule, in some exceptional situations the
burden of proof may shift to the defendant both in civil and criminal proceedings. In civil
matter this happens where the defendant admitted the claim of the plaintiff and raised
affirmative defense. In criminal matters on the other hand, the burden of proof shifts to the
accused when proof by the public prosecutor is difficult but easier for the accused to
produce evidence.

The standard of proof required in persuading the court differs in civil and criminal
litigations. In civil suit, the evidence which could show a happening of a fact to be more
probable than to be improbable is enough establish the occurrence of the alleged fact. Here,
the rule is preponderance of evidence; the court could decide in favour of the one who has
produced evidence weighed more than of the other party.

But, in criminal charge in order to convict an accused, the guilty of the latter must be
proved beyond reasonable doubt. This shows that in criminal cases there is a need of high
degree of proof for various reasons as stated above.