chapter for evidence ppt

1. Oral evidence
What do you mean by Oral evidence?
The black’s law dictionary, which is the 8th edition, defines oral
evidence as:
“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 words of mouth.

2. It is a statement made by a competent witness, under
oath or affirmation, usually related to legal proceeding.

3. It is the making of a statement under oath or
affirmation in judicial proceeding.
Therefore, oral evidence means all statements which the
court permits or requires to be made before it by witnesses
in relation to the matters of fact under inquiry.

4. Someone who has first-hand knowledge about a crime or
dramatic event through their senses (e.g. seeing, hearing,
smelling, touching) and can help certifies important
considerations to the crime or event. (Ronald L. Melnick).

5. A witness who testifies to what he has seen, heard, or
otherwise observed.
 I have seen or observed,
 I have heard,
 I have smelled,
 I have felt,
 I have tasted

6. An expert who testifies not only what he has seen, heard, or
otherwise observed personally but he may also offer an opinion
applying his expert knowledge to facts he has not personally
observed.

7. Can everyone become a witness?
What do you think must a person fulfill to be a witness?
 A child
 Intoxicated person
 Insane person
 Criminally convicted person
Which persons are capable to testify?

8. Competence is the capacity of a person to do something
What do you mean by witness competence?
It is the capacity of a person to testify

9. A competent witness is one who is fit and commonly
gives his testimony before court of a judicial proceeding
under oath or affirmation.
A competent witness is one who is able to testify or one
whom nothing prevents from testifying unless there are
some conditions which bar him from doing so.

10. Elements
1. A person (natural)
2. Able to testify (who is fit) or nothing prevent him from
testifying
3. The testimony should be given before court of law under
oath or affirmation

11. Witness competence classified in to two i.e.
A. General Competence
B. Special Competence
What is their difference?

12. As a matter of principle everybody is presumed
to be competent witness.
This means, incompetence of witness is in an
exceptional circumstances.

13. In order to be competent witness a person should have testimonial capacities
 To observe
 To remember (recollection)
 To communicate (to understand questions and to give answer)
 To understand the obligation to speak truthfully
Note: now a days these requirements were reduced because children and
mentally disabled person were given the chance to testify.

14. Special competency refers to a witness's ability to testify 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.
E.g. if you go to Hospital you don’t tell your illness to the Doctor,
rather you will tell him the fact of you illness then after
examination he will tell you what your illness was.

15.  Unlike general competence special competence is not presumed
This means: everyone is not presumed to have special competence
 special competence sub-divided in to two i.e.
1. Layman’s Opinion
2. Expert Opinion
What is their difference?

16.  The witness is not expert in the matter concerning which he testifies or he
does not have any special expert in the subject matter.
 He may give his opinion based on the fact he observed.
 He may give is opinion as to
 Intoxication, age, appearance, conduct of business, a value of service
and general characteristics of wealth …etc.
 He may not give conclusion, rather leaves it to the court
 The court may conclude depending on the case and practice.
 The opinion of non-expert is not admissible and it is up to the discretion of
the court.

17.  The witness is expert in the matter concerning which he testifies.
 The opinion of expert witness may be required either
 By the court or
 By the parties
 In order to call expert witness the subject matter must be so-complicated or
complex.
 The purpose of expert witness is in order to assist the judge in framing the
proper judgment regarding the fact.
 In order to be expert witness the witness must show special skill, training,
education, and experience.

18. As a matter of principle, it is presumed that everyone is capable of
testifying before the court. However, there are exceptional grounds in
which witnesses are considered as incompetent to testify before the
court.
“The witnesses competency is the rule, and their incompetence is the
exception, and their incompetence lies with a very narrow compass.”

19. The incompetence is due to lack of organic and moral capacities of witnesses
As per Rule 39 of the Court Rules of 1943 and Rule 92 of the Draft Evidence
Rule, those grounds of incompetency are:
 Mental incapacity,
 Physical incapacity,
 Legal interdiction (conviction of crime)
Interest in the outcome of the case
These grounds are grounds to raise objection

20.  It is a ground for raising objections in common law legal
system and in Ethiopia.
 This ground covers mostly the organic incapacity aspects of
the incompetency of witness.
 It comprises children, insane, and intoxicated person,
 However, there is no flat rule today in both common law legal system
and in present Ethiopian laws to declare any of these peoples
incompetent.

21. Reason
Because they are incapable
To observe what is right or wrong;
 To remember what they have observed;
 To communicate or to understand questions and to give answer
 To understand the obligation to speak truthfully
However, the incapacity is not absolute, because it
should be tested

22. In both common law legal system and in Ethiopia (DER rule 92
and 104 (1)) for mentally incapable person to be competent
witness the tests are:
 communication
To understand the question put them and rationally answer
them.
 To understand the duty to speak the truth
If they fulfill this test they are competent if not they are not
competent

23.  This covers those persons, who have visual, hearing and
speaking deficiencies (blind, deaf and dumb)
What do you think the reason for the incompetence of
blind, deaf and dump from becoming competent witness
 Exception
According to the general rule, physical incapacity is no bar to a witness's
competency as long as these persons can understand the questions put to him
and give rational answers to those questions.

24. DER rule 92 (2)
If a person cannot speak, see and hear, he may still testify if
questions can be put to him in some accurate fashion and he
can reply by signs or writing which can be accurately
interpreted by some one sworn to do so accurately.
 Note
In Ethiopia, even though there is no law that governs such
issue, these types of persons are not incompetent to stand as
witness merely because they are blind, deaf and dumb.

25.  In present Ethiopia this is no longer a bar to competency of
witness.
 Legal basis
The FDRE Constitution, Art. 142 of the Criminal procedure code and
Art. 268 of the Civil procedure code.

26. Which persons do have interest in the outcome of the case?
 Persons related by affinity (marriage)
 Persons related by consanguinity (blood)
 Other emotional grounds
In early times the above relations are the grounds of incompetence, however,
there is no such restriction in present time.

27. How you can adduce oral evidence before court of law?
Through question and answer
There are three question i.e.
 Examination in chief
 Cross-examination
 Re-examination

28.  Physical appearance of the witness
 To check the identity of the witness (Name and
address of the witness or to check his ID)
 Oath
 Examination in-chief
 Cross-examination and
 Re-examination
The court has discretion to raise question at any time
for clarification purpose and not for examination.

29.  Who is going to bring witness? Or who starts to
examine the witness?
 What is the purpose of examination in-chief?
 What are the legal bases and rules regarding
examination-in-chief?

30.  A party who has burden of production is going to bring
witness
 plaintiff in civil cases
 public prosecutor in criminal cases
 Therefore, the plaintiff and the public prosecutor starts in civil
and criminal cases respectively.

31.  It crates an opportunity to introduce evidence before court of law
It creates an opportunity to prove or disprove an alleged fact.

32. Art. 137 (1 & 2) of the Cr.p.c, Art. 263 (1 & 2) of the Civ.p.c. and
Art. 37 of 1943 court rule.
 The question put in chief examination and the answer thereof shall
be
 Related to the facts of the case
 Relevant to the issue to be decided.
 The witness may describe the event in chronological order
 leading questions are prohibited without the permission of the court
or the accused or his advocate or the public prosecutor.
 Questions asked in chief-examination begins with who, what, where,
when and why

33.  Irrelevant question
 Leading question
A witness should not be asked a question that suggests its answer
 Opinion
A witness should not be asked to give his opinion.
 Hearsay
A witness should not be asked a question that invites him to give
inadmissible evidence.

34.  Who cross-examine the witness?
The opponent party (the party against whom the witness testifies)
 When does cross-examination starts?
It follows immediately after chief examination
 What is the purpose of cross-examination?
 What is the rules & the legal basis of cross-examination?

35.  In order to weaken or discredited the testimony of the witness given
through chief-examination.
 In order to show the witness’s evidence was based on the mistaken
understanding of the event;
 In order to give chance to the opposing party to defend allegation or
claim made against them.
 Generally speaking it creates an opportunity to confront any evidence

36.  Cross-examination is a constitutional right (Art. 20 (4) of the
FDRE Constitution)
Art. 137 (3) and Art. 263 (3) of the criminal and civil procedure
code respectively.
 parties are at liberty to ask leading questions

37.  Who Re-examine the witness?
The party who called the witnesses or the party who started first i.e. the
plaintiff and the public prosecutor in civil and criminal cases respectively.
 When does Re-examination starts?
It follows immediately after cross-examination
 What is the purpose of Re-examination?
 What is the rules & the legal basis of Re-examination?

38.  In order to cure what is damaged during cross-examination or
 In order to repair any damage done to examination in chief by
asking further question on the matter which arose during cross-
examination.
 In order to clarify matters which have been raised in cross-
examination

39. Art. 139 and Art. 263 (4) of the criminal and civil procedure
code respectively.
It is not mandatory to Re-examine witnesses
 Re-examination is confined to issues that were covered in
cross-examination. This means new matter may not be introduced
in re-examination except by the permission of the court.
 It is better questions should not be asked unless the witness
knows the answer.
 Leading questions is not allowed

40.  If there is no chief-examination there is no cross-examination. The same is
true if there is no cross-examination there is no re-examination.
 According to Art. 140 of the Cr.p.c failure to cross examine does not
constitute an admission of the truth, however, in civil cases silent amounts to
acceptance or admission.
 In both civil and criminal cases judges has discretion to raise question to
witnesses for the purpose of clarification
 The Ethiopian system of witness inquiry is “Adversarial system of Inquiry”

41.  (Difference) chief-examination made by the party who calls the
witness, cross-examination made by the opposing (adverse) party,
and re-examination made by the party who calls the witness.
 (Difference) examination in chief conducted in 1st place then
followed by cross-examination (2nd) and finally Re-examination (3rd).
 (Difference) the purpose of chief-examination is to produce evidence
in order to prove allegation or claim, whereas the purpose of cross-
examination is to discredit the testimony given in chief-examination
and finally the purpose of re-examination is to remove inconsistency.

42.  (Difference) in chief-examination leading question are not
allowed without the permission of the court, in cross-
examination leading question is not prohibited and finally in re-
examination asking leading question is prohibited and also
parties cannot introduce new matters.
 (Difference) chief-examination is parts and parcel of the legal
proceeding, cross-examination is most essential part in finding
the truth and Re-examination not essential.

43. What do you mean by Hearsay Evidence?
 “Hear” & “say”
 It is types of Oral evidence,
 It is a statement (oral or written) made outside the court,
 The witness doesn’t have direct knowledge and observation
about the fact sought to be proved.
