The word “ evidence” is originated from a Latin term “evidentia” which means to show
clearly, to make clear to the sight to discover clearly certain, to ascertain or to prove. Thus,
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.
evidence is something presented before the court for the purpose of proving or disproving an
issue under question. 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.
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
[Link] 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 (e.g. improper admission or rejection of
evidence) Because the decision of the curt regarding the admissibility or non admissibility of
evidence may form the subject of aground of appeal where an appeal is logged against
conviction, discharge or acquittal [see Art 184(c of cr.p.c]. These errors on the admissibility
or inadmissibility of evidence may be reversible or harmless error.
Differences regarding the organization of the rule of evidence in
common law and civil law legal system.
1. In common law there are separate rules of evidence or separate code of evidence
law. The rules determine what evidence is admissible and what evidence is not
admissible. in the continental system there is no separate code of evidence law.
Rules of evidence are sparsely distributed in both substantive and procedural laws.
2. Even though the common law countries have a separate code of evidence law
enacted by the law-making organ, they have also judge made evidence rules due
to the existence of the precedent system. thus, by doing this, the judges have the
authority to made laws including evidence rules. 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.
3. 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. 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 there
by ensuring fair play. However, the civil law system employ 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.
4. 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. Here, there is clear preference for
evidence to be tendered in oral form. Documentary evidence is generally regarded
as being inferior to oral evidence. However, in continental law system emphasis is
laid on written evidence including notary- attested records of every sort of
transaction, written formalities, registration etc. There are Registration offices like
offices of notary public whose counter part is less common in common law. They
belief that, documents do not lies and they are easily manageable, and economical
to bring them before the court of law.
5. 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. In Ethiopian 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.'
6. In common law legal system, there is a rule, which excluded the admissibility of
hearsay evidences even if there is much emphasis on oral argument and
persuasion. However, in civil law legal system there is no rule which excludes
''hearsay' evidence. Rather, a judge has a discretion to determine the admissibility
or otherwise of the evidence by applying his own personal evaluation.
Evidence in Ethiopia.
we can say that, the present day Ethiopian evidence system is the hybrid of civil law and
common law features. our substantive laws are adopted from civil law legal system,
considerable code emphasis is placed on the value of documentary evidence to include
provisions for register and acts of notoriety, which is mainly the feature of continental
approach. Moreover, since our substantive laws are adopted from the civil law legal system,
we have a number of evidence rules scattered throughout our substantive laws like the
Articles on proof of marriage, proof of will, proof of contract, proof of ownership and a lot of
legal presumption which relate to evidence. There are also common law features to the
present Ethiopian evidence system. Since our procedural laws are adopted from the common
law legal system, the method of presentation of evidence envisaged by the civil and criminal
procedures is very much of the common law method of presentation of evidence. The
common law features, for instance, cross-examination and impeachment of witnesses,
objection to and rulings on admissibility of evidence and the like are included in our
procedural laws.
Generally, we can classify the present sources of Ethiopia’s evidence rules in to three: -
(i) The evidentially rules which are found scattered through out 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.
Evidence law in civil and criminal cases
1. in criminal cases the law of evidence has further important purpose, that is, the
protection given to the accused in respect to his right to a fair trial. The protection of
the accused against the case being proven against him by evidence which is
prejudicial to his right to afar trade is one of the main reasons why the law of criminal
evidence contains so many rules which excludes potentially relevant evidences from
being produced before the court including, for example, the general rule that evidence
of the defendant's bad character or his previous convictions will not be admitted at
trial, (see art 138 of cr.p.c) different privileges given to witnesses.. etc . The court
may also exercise its discretionary power to support the defendant's right to a fair trial
by excluding potentially relevant evidences. The exclusion of evidence in an attempt
to ensure a fair trial in criminal cases. 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. This state of affairs reflects the key difference between civil and criminal
proceeding. Therefore, we can say that the fair trial provision is not as important in
civil case.
2. The appropriate standard of proof that will have to be satisfied in a criminal case is
heavier than in a civil case. In criminal proceeding, the public processor 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. The “beyond reasonable
doubt” standard is constitutionally mandated in criminal cases.
3. 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. This will usually comprise elements of the mens rea and actus reas, for
example, when pursuing conviction for theft, the prosecution must prove all the
elements of the offense as laid down by the Criminal code (namely a dishonest
appropriation of property belonging to another with the intention to permanently
deprive). The allocation of the legal burden of proof on the prosecution is regarded as
fundamental expression of the presumption of innocence. Because every one charged
with criminal offence shall be presumed innocent until proved guilty according to
law. It also reflects an aspect of procedural fairness in that the prosecution has
considerably more resources at its disposal than the defendants and therefore it should
bear the burden of proving the accused guilt. A Practical consequence of the
prosecution bearing the legal burden of proof is that the prosecutor always opens the
case at trial and presents its evidence first. In discharging its burden the prosecution
must disprove any defense or explanation raised by the accused.(see Art 136 of
cr.p.c]. Whilst the rules of civil evidence do not incorporate the same enshrined
principles as in criminal case (i.e. the accused in a criminal trial is presumes innocent
until proved guilt by the prosecution), the well established general rule about the
incidence of the legal burden of proof in civil proceedings is that ''he who asserts
must prove”. To put simply, the legal burden of proving a fact in issue in a civil trial is
on the party that asserts that fact. Therefore, in civil cases, the burden of proof first
lies in the plaintiff. However, this burden of proof will shift to the defendant if the
defendant admits the allegations and come up with positive deface like
“counterclaim”. In such case, the burden of proof lies on the defendant (see Art 258
of civ.P.C ).
4. 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.
5. There is also a difference between civil and criminal proceedings regarding proof by
admissions. Firstly, in civil cases, the defend ant 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 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 particles, 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. 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 through out the world by his criminal act.
6. Thirdly, in criminal cases, admission shall be made without reservation. When we say
the accused admitted, we are saying that he admitted each and every criminal
elements of the alleged offence usually comprise elements of the mens rea and actus
reus . However, in civil proceedings the party may admit the truth of the whole or any
part of the case of the other party. For instance, the plaintiff has instituted suit against
the defendant on breach of contract for the value of 10,000 birr. Here, the defendant
may admit half of the plaintiffs claim and deny the rest. In such case, the issue (the
point of disagreement) lies only on the non-admitted claims of the plaintiff and the
court shall give judgments on the admitted amount in accordance with Art. 242 of civ-
p.c .We will discus about admission of facts at length at chapter 2.
Classification of evidence
evidence is divided in to two: direct and circumstantial. direct evidence establishes a fact in
issue directly. A fact in issue is something a party alleges to exist and the other party denies
this is the disputed fact, which can only be resolved by the help of evidence. 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. 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. 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. The circumstances should not be self-
contradicting that is some consistent with the innocence of the accused and others consistent
with his guilt. If they contradict, their capacity to prove decreases with the increase of the
contradiction. That is why; we have said that the court must be careful when it gives a ruling
on the basis of circumstantial evidence.
Chapter two: Facts, which may be proved other than by evidence
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 with out 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.
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.
Why admitted facts need no proof?
1. Courts are set up to try issues in dispute.
2. When no dispute exists, proof ordinary should not be required.
3. 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 any body
else.
4. But if proof is required for such admitted facts, undue delay will be created since other
cases a wait the court's attention. And undue delay causes injustice to others as well as the
parties before the court.
2.1.1 Limitations of Admissions
1. 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.
2. 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”.
3. Secondly, the public prosecutor cannot call one of the co- offenders as a witness against
the others in the same trial.
Judicial admissions may be made through different ways A. Facts expressly admitted in
parties pleadings. B. Facts admitted by implication.