What is evidence?
In both civil and criminal trials, the trier of fact (judge or jury) must disregard any information they have learned about the case they’re to hear, and consider only the evidence put before them. Such evidence will be restricted to:
- oral evidence – things witnesses say on the witness stand;
- documents – letters, reports, e-mail, and any other form of written records which one of the parties tenders as evidence in the trial; and
- demonstrative evidence – pictures, videotapes, and physical items like torn seatbelts, which shed light on the issues being considered and which one of the parties files in the trial.
In a court of law, whether evidence is oral or written does not by itself determine how much weight it will be given. Each form has its strengths.
Written evidence? Many people today tend to believe only what they see written on paper. If it isn’t written down, they aren’t sure they can rely on it. More practically, written records can be scrutinized; oral testimony is here and gone. Also, people’s memos, letters, email which they didn’t expect to be made public may present a more “real” picture of who they are. In such cases, documentary evidence may be more reliable than oral evidence.
Oral evidence, however, is more multi- dimensional. Watching a witness testify in open court allows the judge or jury to examine the appearance, facial expressions and body language of the witness, note hesitations in his/her answers, or emotions in the voice. A witness’s answers are usually more spontaneous than the carefully worded text of a document. This allows the trier of fact to get a full picture of the main people involved in the legal dispute the trial is supposed to resolve.
Whether the evidence is oral or written, it is the task and the right of the trier of fact to weigh all of the evidence together and consider it in light of their own common sense. The trier of fact may then accept in total or in part, or reject completely, any evidence tendered in a trial, as long as there is a rational basis for doing so.
Not all evidence offered is “admissible”, or allowed to be considered. A judge will disallow evidence if it is:
irrelevant – Evidence is relevant if it can throw any light on the specific matter in issue, whether directly (e.g. “I saw that woman run her car into a pole.”) or indirectly (“At the scene of the accident, we found a bent pole.”) Evidence is irrelevant if it cannot throw any such light. Irrelevant evidence is kept out because it wastes time and may be distracting or prejudicial (i.e. influential for reasons that legally shouldn’t matter).
hearsay – If A testifies about what B told him or her, the evidence is what A heard B say – and it is hearsay evidence. As one member of the British House of Lords said:
“Hearsay evidence, that is to say, the evidence of a man who is not produced in Court and who therefore cannot be cross- examined, as a general rule is not admissible at all.” Even relevant evidence is inadmissible if it’s hearsay.
There are, however, many exceptions to the hearsay rule. These exceptions are generally allowed where the evidence is needed and the circumstances in which the statement was made suggest the evidence is relatively trustworthy. E.g. recounting someone’s dying declaration. Another example would be if A testifies about an admission B made where B is an opposing party in the lawsuit. This evidence would be allowed because, as a party to the lawsuit, B could testify and have his ‘admission’ examined in the trial.
The standard of proof
Unlike a criminal case, where the crown must prove its case “beyond a reasonable doubt”, a civil case requires the plaintiff (the person bringing the lawsuit) to prove their case on “a balance of probabilities.” They still need to prove every aspect of their case (the accident’s occurrence, causation, injuries, losses, etc.), but they don’t need to prove each element as a certainty. They must just prove it is more likely than not that these things are true.
Can a plaintiff whose case is 51% believable be awarded 100% damages? In each case, the trier of fact should decide whether the evidence given at trial is “enough” by considering it in light of what evidence is available to the plaintiff. In some circumstances, damages are awarded at less than 100% because the evidence does not justify full recovery.
In other cases, the plaintiff can produce no direct evidence showing that the defendant’s negligence caused the accident, but there is some circumstantial evidence. If there is also no other reasonable explanation for the accident, a judge can apply the old English common law doctrine of res ipsa loquitur, meaning “the thing speaks for itself,” and find for the plaintiff.
Some injuries are more difficult to prove than others. We have machines that can prove 100% that a person sustained, for example, a fracture at the C5-6 level. But for a mild traumatic brain injury (MTBI), there may be no conclusive test that can identify the nature and extent of the injury. It would be quite unfair to deny compensation to a person whose life had been turned upside down because of a MTBI just because our SPECT, MRI, PET, CT and other scanning machines cannot identify (either at all or clearly enough) the injury. To do so would place greater value on technology than justice.
Ultimately, the rules of evidence are just a tool courts use to cut away extraneous and unreliable information so judges and juries can focus on the main issues in the dispute. Then it’s up to the good judgment and insight of these triers of fact to sort through the admissible evidence, decide the facts, and draw conclusions that hopefully lead to a just result.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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