T3 Intro to Civil Evidence Flashcards
Main types of evidence?
Main types:
- Real (a ‘thing’)
- Documentary
- Oral (testimony)
& - Other forms of classification
When a party appeals to a higher court, what are they known as?
Appellant
Note:
Party denying the appeal is called the respondent
2 types of real evidence?
‘thing’ - e.g. physical object like car bumper
‘spoken to’ - e.g. expert speaking on blood sample, finger print
Simple phrase/rule for which party bears the burden of proof?
He who asserts must prove
When party relies upon a fact that is essential to their case
Note:
- Once proved, the party has discharged their burden
- The defendant who asserts positive defence (not denial) must prove
What does plaintiff mean?
Person who brings a case against another
An example of the presumption of - res ipsa loquitur (‘the thing speaks for itself’)?
Claimant doesn’t have burden of proof in negligence cases
e.g. for an work injury caused by an explosion at a steel plant.
Note:
Claimant does not have to prove why explosion happened. It just shouldn’t normally happen
What is standard of proof?
Standard to which essential facts must be proved/established
established on the ‘balance of probabilities’ (UK civil cases)
Note:
- How or to what extent the bearer must prove, in order to discharge his burden of proof
- UK criminal cases established ‘beyond reasonable doubt’
Does every fact a party relies upon in his case, need to be proven?
No
Note:
- For time and cost efficiency
- Doctrine of Judicial Notice (UK)/ Judicial Knowledge (Scotland) empowers a court to declare that certain facts to exist without the need of evidence.
3 main types of Judicial Notice (UK) / Judicial Knowledge (Scotland)?
- Notorious facts
- Personal knowledge
- Judicial Notice after enquiry
Note:
- Notorious facts - well known, e.g. night follows day, pushbike has no engine - pointless adducing evidence
- Judicial Notice after enquiry - verified by the court after checking with another source
A witness can refuse to answer a question, and a party can refuse to provide docs if privileged information. What are 4x main types of privilege in litigation?
- solicitor-client comms (legal privilege)
- solicitor and not-the-client comms (e.g. with third-party pending litigation)
- in aid of settlement comms (without prejudice)
- against self-incrimination - for criminal prosecution only
What does post litem motam mean?
for Scottish court
Communication made after it is apparent there will be litigation
“without prejudice” letters are not fully protected, the courts will decide what parts are privileged, or not.
What is the intent of the courts for maintaining privilege in docs?
Promote settlement negotiations (oral and written)
Note:
“without prejudice” is good practice, but so common it is considered meaningless
A party in possession of privilege can waive privilege for their benefit. e.g. use part of privileged document for the case.
If party wants to retain privilege on rest of the doc, the test is whether the document is…?
‘Severable’
Note:
e.g. document between solicitor-client communications would be privileged. If party uses part of this document, they risk waiving privilege on full document, that may work against them.
Similar fact evidence is where, in the case of AvB, A may wish to use evidence of same issue, involving BvC
e.g. A accuses B of piracy. A uses example of B pirating C’s music copyright
(no answer required)
-
When giving ‘weight’ to witness evidence, what two factors will they consider?
Credibility - truthfulness
Reliability - how well placed they are to give accurate evidence
What is hearsay evidence?
Evidence of what someone else has said or written
not direct from the evidence-giver
Precognition is an account taken from a witness and put into words of the statement-taker.
If account is in words of a witness, it is a statement.
Why is the distinction between precognition and statement crucial, in Scotland?
Precognition is inadmissible
Statement is admissible
Note:
- Precognition is filtered through the mind of another
- Unlike verbatim (word for word)
Corroborated evidence is evidence from…?
2+ sources
Rules on oral evidence (witness statements and expert evidence) are governed extensively by which statutes (e.g. rules/ acts)?
Civil procedure rules 1998
Civil evidence act 1972 & 1995 Civil evidence (Scotland) act 1988
Most people are competent witnesses. In England, the general rule is that witnesses who are too young or mentally ill are not competent witnesses, and their evidence generally will be excluded.
Of competent witnesses, the test for competence requires the witness to be able to…?
speak/communicate coherently
speak the truth - understanding and obligation to
Note:
The Vulnerable Witnesses (Scotland) Act 2004 appears to abolish the competence test
First stage of examination of a witness, in court. And the 2 further optional stages?
- Examination in chief - questions by eliciting party
- Cross-examination - by opposition
[optional and common] - Re-examination - to clarify/ repair damage by cross-examination, same issues only not new issues
[optional but less common]
During examination of a witness, when is it permitted (and common) to use leading questions?
In cross-examination by opposition
Note:
- Not by eliciting party in examination in chief and re-examination
- For uncontested matters, it is acceptable to lead a witness, with permission of opponent
Usually, only expert or skilled witnesses may give opinion evidence. Other witnesses must only speak to the facts. True or false?
True
An experts duty is to help the court or be loyal to the party paying their fees?
Help the court
Edge & Mills note that rules of evidence are based on four key concepts?
(to determine if evidence is valuable)
- Relevance (capable of proving/disproving a fact?)
- Weight (credibility & reliability)
- Probative value (= relevance + weight)
- (risk of inappropriate use) Prejudicial effect
Note:
- RGU add - admissibility
- Not the only filters to establish if evidence is valuable
How does a party discharg evidential burden borne by him?
[2012 Modern Law of Evidence]
By adducing sufficient evidence
Presumptions - sometimes courts use the device of presumptions to assist it in reaching a conclusion on whether the burden of proof has been discharged.
A presumption allows the court to infer (assume, presume) that a situation exists unless and until the contrary is proven. Many of the presumptions applicable in civil cases are relatively obscure, and not truly relevant to you in your professional lives
(no question)
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The Best Evidence Rule requires that the..?
best available evidence should always be provided
Note:
If court takes view that best evidence is not produced, secondary evidence of a fact may be disallowed as inadmissible. Sometimes distinction is expressed as between primary evidence (the best evidence) and secondary evidence
When a party wishes to prove the content of a document, he must produce the original document. Will a copy or oral evidence, as to its terms normally be sufficient?
No
Note:
Except when original has been lost, as long as it is established that there has been a reasonable search conducted for it, secondary evidence may be produced
Communication must be directly related to the giving of advice. If not, privilege does not attach
(no question)
-
Motive for Seeking Disclosure - where the nature of the solicitor-client relationship is the very issue being probed by the court, privilege will not apply
(no question)
-
Communications in Furtherance of a Crime - Where client is using solicitor-client communications privilege in a case, where he is alleged to have been involved in a criminal act directly involving solicitor, privilege will not apply
(no question)
-
Describe what is the Power to Call Statement-Maker?
When party wishes to call a witness to give hearsay evidence
the opponent may wish to call the statement maker himself
If a witness is competent, usually he/she can be forced to give evidence, providing there is no legal privilege - true or false?
True
What is an affidavit?
A form of sworn written statement
Evidence can be either direct or circumstantial. What is the difference between direct and circumstantial evidence?
Direct - establishes a fact e.g. eyewitness statements and confessions.
Circumstantial - requires judge and/or jury to make an indirect judgment, or inference, about what happened
There are difference kinds of burdens that are variously called, for example, the evidential burden, the legal burden and tactical burden - true of false?
True
