Chapter 1- Historical Development And Sources

Question 0

Why is the general discussion of the Religous Stage desirable?

Answer 0

• Firstly it explains why the rules of contemporary Law of Evidence systems are considerably younger than those of the Substantive Law.
• Secondly gives complete view of importance role played by the oath from earliest times in process of evidence presentation.

Question 1

What stages can the broad pattern or course of development of the Law of Evidence be divided into?

Answer 1

There are three stages /phases:
1) Religous;
2) Formal; &
3) Rational Stages.
Each of these stages is characterized by specific point of departure according to which the settlement of disputes took place or still takes place.

Question 2

During the Religous stage of law of evidence, what was the point of departure in regards to the various irrational methods of evidence presentation?

Answer 2

The point of departure was that God or the gods had to pass ruling. With the so-called divine judgments (aka “trial by ordeal”) the accused, was expected to subject himself to a specific test.

Question 3

How does Esmein History of Continental Criminal Procedure explain these so-called divine judgments?

Answer 3

In a certain stage of social and Religious development, best way to end litigation or Ito determine question of guilt, was by exposing one, or even both of the parties to some form of very serious danger and this compel divinity to play the part of justice. Ie if survived then innocent, if died then guilty.

Question 4

What is the Religous stage of Law of Evidence mainly representative of?

Answer 4

It is representative of the Law of Evidence of the early primitive legal systems (and also contemporary primitive legal systems)

Question 5

In general, how did the Religious stage determine the “truth”?

Answer 5

They used divine judgments, the purifying oath and oath helpers.

Question 6

What is an example of the use of divine judgment?

Answer 6

In Old Eastern Law, paragraph 131 of the Codex Hammurabi (1711-1669 BC), the priest had to give a woman accused of adultery bitter water. Woman had to drink water in order to prove innocence. If her stomach were to sell up as a result of the water, she was guilty. If nothing happened to her then she wasn’t guilty. (Also appeared in Mosaic law)

Question 7

What was a “purifying oath”?

Answer 7

According to this method, a person merely confirmed his innocence under oath. Taking the oath led to an acquittal. Refusing to take the oath was basically admitting guilt. From this it is clear that the oath was held in exceptionally high regard.

Question 8

What is the Anglo-Saxon Period in England?

Answer 8

Period of reign of King Ethelbert (568-616) until the Norman occupation (by William the Conqueror in 1066). During this time there was no mention of the use of a jury in modern sense of the word. Also nothing similar to contemporary process of judging evidence.

Question 9

What was the most NB form of providing proof during the Anglo-Saxon period?

Answer 9

By means of oath helpers (“compurgators”), the purifying oath and divine judgments. Like almost all other primitive people’s, Anglo-Saxons also placed special exaggerated emphasis on meaning of the oath.

Question 10

How does Forsyth History of Trial by jury explain about the Anglo-Saxons high regard of the oath?

Answer 10

During this period, such regard was paid to the oath, and it was absolutely repugnant for a man who was guilty of a crime to lie under oath, and if he took the oath that he never committed a crime and he got a number of compurgators to swear that they believed him then he would be found not guilty. Unless the opposite party could provide more compurgators on his side.

Question 11

What were “compurgators”?

Answer 11

They weren’t eye witnesses in the true sense of the word at all, they were merely persons who were prepared to declare under oath that the oath of the particular litigating party was not false.

Question 12

What would the modern day equivalent of compurgators be?

Answer 12

Today one would at most be able to call them “character witnesses”. And today evidence concerning character is normally inadmissable.

Question 13

In what disputes was settlement by divine judgments essential and settlement by compurgators not permissible? -4 points

Answer 13

1) In the case of transgressions involving violence- in this case ip was only accuser or complainant who was able to use compurgators;
2) Divine judgment also essential if accused couldn’t obtain necessary compurgators;
3) If he had previously taken a false oath; and
4) an accused who wasn’t a freeman also had to subject himself to divine judgment.

Question 14

What was an example of divine judgments that were used in the Anglo-Saxon period!

Answer 14

In one instance an accused had to carry a bot piece of iron a certain distance. A strict application of these rules left the accused very little scope to prove innocence. Two possibilities existed where the strictness or rigidity of this divine judgment could be tempered. According to Pollock an Maitland, it could’ve been arranged in certain way where accused could’ve be granted reasonable chance. Simply mean that iron wasn’t red hot. Another view suggests that was defendant on whether the wound that was caused by the iron became infected, if it did then guilty. However if it didn’t become infected the accused granted acquittal

Question 15

What was the divine judgment known as the “corsnaed” or the “ordeal of the accursed morsel”?

Answer 15

The accused had to swallow a piece of dry bread, while praying to God to make him choke if he were guilty. Is said that Count Godwin of Kent choked and died in this manner. Difficult to justify this on rational ground, however Paton and Derham suggest that the “corsnaed” was based on the physiological phenomenon that sense of guilt could cause your mouth to become more dry, thus making it more difficult to swallow bread.

Question 16

What is the period following the occupation of England by William the Conqueror know as?

Answer 16

The Anglo-Norman period in England.

Question 17

What change did William the Conqueror bring to the determination of truth?

Answer 17

He introduced the duel as another form of divine judgment. According to this parties could be settled by means of a duel (usually a sword fight)

Question 18

When did the purifying oath and compurgators start falling into disuse?

Answer 18

In 1166, they were forbidden in the Royal Courts by the “Assize of Clarendon” in criminal cases. It was however still used in the church or ecclesiastical courts, but up even here started falling into disuse.

Question 19

Under the Norman influence, what began happening to the use of compurgators?

Answer 19

Compurgators now started gradually developing into members of a jury, which would later acquire the function of judging evidence. The duel also lost ground because the jury in addition actually accepted the responsibility on behalf of the individual to lay charges.

Question 20

Why did the use of divine judgments become less popular during the Anglo-Norman period?

Answer 20

Skepticism surfaced because most of the accused engineered their acquittals by means of blatant perjury and bribery. There was a similar development in Europe.

Question 21

What did the prohibition of the divine judgments and the introduction of the jury in England lead to?

Answer 21

It lead to a new dispensation in the development of the Law of Evidence. The formal stage now followed.

Question 22

During the Formal Stage, what was the big development in terms of witness evidence?

Answer 22

The stage was reached where witnesses were allowed to give evidence, these witnesses were expected to pronounce specific formulae. This evidence was rejected if form was lacking in the wording.

Question 23

During the Formal Stage, what role did confessions play?

Answer 23

During this stage, confession as a method of providing proof, enjoyed precedence. The premise was that the confession provided complete proof: there was a need for something formal. The suspect was regarded as the most NB source of info.

Question 24

During the Formal stage, how were confessions being exacted?

Answer 24

They were consistently being exacted by means of torture and the danger of unreliable confessions was never considered: when ther was semi-plena probatio (“half proof” or actually simply just suspicion), a confession was then obtained by torture in order to provide plena probatio.

Question 25

What other development in the Law of Evidence arose during the Formal Stage?

Answer 25

It was also during this stage that the so-called “presumptions” developed. The basis for presumptions lies in normality.

Question 26

With regard to competence to give evidence, what was the development during the Formal stage?

Answer 26

Persons who had an interest in the outcome of the case were not allowed to give evidence, i.e. they weren’t competent to give evidence. Husband and wife for example, had no competence whatever to give evidence in favour for against one another, they were regarded as a unit.

Question 27

What stage of the Law of Evidence followed the Formal Stage?

Answer 27

The Rational Stage.

Question 28

According to the rational approach, what is the presentation of evidence for the settlement of disputes based on?

Answer 28

It is based on rationality. Human reason, therefore, plays a predominant role in this process. The Law of Evidence has therefore become more supple.

Question 29

What are the three examples that may be used to illustrate the dawning of the rational stage?

Answer 29

1) The rule that witnesses may not give evidence in a case in which he has an interest, has been replaced. Rational POV is that his evidence is a matter of weight (and not admissibility).
2) Husband and Wife are today allowed to evidence for and against one another in both criminal and civil cases. Previous formalistic approach based on “in carne una”, wasn’t to advantage of an orderly society and the just trial of cases.
3) In the early common law the rule “falsum in uno, falsum in omnibus” prevailed: if witness lied in one respect, must be assumed that gave false evidence in all other respects. This rule is no longer valid in our law.

Question 30

What are the formative factors of the Anglo-American Law of Evidence (of which SA Law of Evidence forms part)?

Answer 30

It exists in its present form mainly drupe to four factors:

1) The doctrine of precedents;
2) The role of the jury;
3) The oath; and
4) The accusatory trial.

Question 31

In A Text-Book of Jurisprudence how do Paton and Derham describe the role of the jury?

Answer 31

The English rules stricter than those of other systems in ruling out certain types of evidence, this being due partly to fact that jury was so extensively used as the fact-finding body and judges feared that the jury might place undue weight on certain types of evidence which are notoriously untrustworthy. Thus hearsay is excluded, since person who made original cant be cross examined. English rules exclude, in general, proof that prisoner had previously been convicted of crime in order that jury may not ‘give a dog a bad name and hang him’.

Question 32

In South Africa do we have trials by jury?

Answer 32

No, not since 1961. But we still have almost all Law of Evidence rules that can be attributed to the presence of a jury.

Question 33

What are the qualifications for Stare Decisis?

Answer 33

1) Jurisdiction- The lower court is only bound by decisions of the higher courts in their jurisdiction.
2) Reason for judgment- Bound by ratio Decidendi not by Obiter.
3) Facts- Facts must be related in order to be bound by judgment.

Question 34

How does Best of Evidence (1906) 43 explain the oath?

Answer 34

It states that however abused or perverted by ignorance and superstition, an oath has in every age been found to supply the strongest hold on the consciences of men, other as a pledge of future conduct or as a guarantee for the veracity of narration.

Question 35

What is one of the reasons why hearsay is excluded?

Answer 35

The oath is one of the reasons why it is excluded. Dude to the fact that the person making the original statement was to under oath.

Question 36

What exceptions are there for the admissibility of hearsay?

Answer 36

An exception to the hearsay rule where hearsay does have bearing on cases where the person making the original statement was in fact under oath. There are also numerous statutory exceptions to the hearsay rule where provision is mad for the admissibility of written sworn statements.

Question 37

What are the different ways that a person can be sworn in during legal proceedings?

Answer 37

The Criminal Procedure act allows for three different scenarios for a person to be sworn in, and they are as follows:
1) s162(Religious)- the traditional Religious oath to be sworn in before God;

2) s163 (Confirm)- provides that a person confirms that he is under oath;
3) s164 (Warning)- is usually used to swear in persons who are unable to fully understand the oath, eg children. These persons are warned that they are speaking under oath.

Question 38

What are the sources of the Law of Evidence?

Answer 38

1) Legislation
a) Constitution- NB chapter 2 BoR
b) National legislation
(i) Criminal Procedure Act
(ii) CEPA 25, 1965
(iii) Law of Evidence Amendment Act
Etc.

2) Case Law
- Common Law

3) (Textbooks and Commentaries)
- Secondary sources, influences aren’t bound it.

Question 39

What are the principle provisions of the Constitution that affect the Law of Evidence?

Answer 39

1) Fundamental rights contained in Chapter 2, BoR
- most NB:
a) s10 Human Dignity
b) s12 Freedom and Security of persons
c) s14 Privacy
d) s15 Freedom of religion, belief and opinion
e) s16 Freedom of expression
f) s32 Access to info
g) s34 Access to courts
h) s35 Arrested and detained persons
i) s36 Limitation of Rights
j) s38 Enforcement of rights
k) s39 Interpretation of BoR

Question 40

In terms of s36 of the Constitution, the limitation clause, how ,ay rights be limited? (Balancing of rights)

Answer 40

In terms of s36(1), the rights in chapter 2 BoR, may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. Including:

a) Nature of the right
b) Importance of purpose of limitation
c) Nature and extent of limitation
d) Relation between limitation and its purpose
e) Restrictive means to achieve purpose.

Question 41

What does s39 of the Constitution provide in terms of interpreting chapter 2 of the Constitution?

Answer 41

S39(1) states that a court, tribunal or forum-

a) must promote the values that underlie an open and democratic society based on equality, freedom and dignity;
b) must consider international law;
c) may consider foreign law.

Question 42

What must every court, tribunal or forum when interpreting any legislation and developing the common law?

Answer 42

S39(2) of the Constitution states that they must promote the spirit, purport and objects of the BoR.

Question 43

What does s39(3) of the Constitution state?

Answer 43

It states that the BoR doesn’t deny the existence of any other rights or freedoms that are recognised or confirmed by Common Law, Customary Law or legislation, on the comdition that they are consistent with the Bill.

Question 44

What country has a similar Constitution to that of SA?

Answer 44

The Canadian “Charter of Rights”, because it also provides right which are then limited by a limitation clause. Similarly this is why the decisions of the Canadian Supreme Court are of particular importance when questions arise on the interpretation of our Constitution.