1.
Evidence (law)
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The law of evidence also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision, the trier of fact is a judge in bench trials, or the jury in any cases involving a jury. The law of evidence is also concerned with the quantum, quality, the rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction. The quantum of evidence is the amount of evidence needed, the quality of proof is how reliable such evidence should be considered, important rules that govern admissibility concern hearsay, authentication, relevance, privilege, witnesses, opinions, expert testimony, identification and rules of physical evidence. There are several types of evidence, depending on the form or source, Evidence governs the use of testimony, exhibits, documentary material, or demonstrative evidence, which are admissible in a judicial or administrative proceeding. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy. The rules of evidence were developed several centuries and are based upon the rules from Anglo-American common law brought to the New World by early settlers. Their purpose is to be fair to both parties, disallowing the raising of allegations without a basis in provable fact and they are sometimes criticized as a legal technicality, but are an important part of the system for achieving a just result. Perhaps the most important of the rules of evidence is that, in general, there are several examples where presiding authorities are not bound by the rules of evidence. These include the military tribunals in the United States and tribunals used in Australia to try health professionals, in every jurisdiction based on the English common law tradition, evidence must conform to a number of rules and restrictions to be admissible. Evidence must be relevant – that is, it must be directed at proving or disproving a legal element, however, the relevance of evidence is ordinarily a necessary condition but not a sufficient condition for the admissibility of evidence. For example, relevant evidence may be excluded if it is unfairly prejudicial, confusing, there is also general agreement that assessment of relevance or irrelevance involves or requires judgements about probabilities or uncertainties. Beyond that, there is little agreement, many legal scholars and judges agree that ordinary reasoning, or common sense reasoning, plays an important role. There is less agreement about whether or not judgements of relevance or irrelevance are defensible only if the reasoning that supports such judgements is made fully explicit. However, most trial judges would reject any such requirement and would say that some judgements can and must rest partly on unarticulated and unarticulable hunches, california Evidence Code section 352 also allows for exclusion to avoid substantial danger of undue prejudice. The United States has a complicated system of evidentiary rules, for example. In Professor Friedmans words, A trained judge would not need all these rules, and indeed, the law of evidence in systems that lack a jury is short, sweet, however, Friedmans views are characteristic of an earlier generation of legal scholars. Under English law, evidence that would otherwise be admissible at trial may be excluded at the discretion of the judge if it would be unfair to the defendant to admit it
2.
Common law
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Common law is the body of law developed from the thirteenth century to the present day, as case law or precedent, by judges, courts, and tribunals. In cases where the parties disagree on what the law is, if a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. Resolution of the issue in one case becomes precedent that binds future courts, stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems. A common law system is a system that gives great precedential weight to common law. Common law systems originated during the Middle Ages in England, today, one third of the worlds population live in common law jurisdictions or in systems mixed with civil law. The term common law has many connotations, the first three set out here are the most-common usages within the legal community. Other connotations from past centuries are seen, and are sometimes heard in everyday speech. Blacks Law Dictionary, 10th Ed. gives as definition 1,1, the body of law derived from judicial decisions, rather than from statutes or constitutions, CASELAW, STATUTORY LAW. In this connotation, common law distinguishes the authority that promulgated a law. e, examples include most criminal law and procedural law before the 20th century, and even today, most contract law and the law of torts. Interstitial common law decisions that analyze, interpret and determine the fine boundaries. Publication of decisions, and indexing, is essential to the development of common law, while all decisions in common law jurisdictions are precedent, some become leading cases or landmark decisions that are cited especially often. Blacks 10th Ed. definition 2, differentiates common law jurisdictions, by contrast, in civil law jurisdictions, courts lack authority to act if there is no statute. Judicial precedent is given less weight, which means that a judge deciding a given case has more freedom to interpret the text of a statute independently. For example, the Napoleonic code expressly forbade French judges to pronounce general principles of law. As a rule of thumb, common law systems trace their history to England, blacks 10th Ed. definition 4, differentiates common law from equity. This split propagated to many of the colonies, including the United States, for most purposes, most jurisdictions, including the U. S. federal system and most states, have merged the two courts. Additionally, even before the courts were merged, most courts were permitted to apply both law and equity, though under potentially different procedural law. In the United States, determining whether the Seventh Amendments right to a jury trial applies or whether the issue will be decided by a judge, the standard of review and degree of deference given by an appellate tribunal to the decision of the lower tribunal under review
3.
Eyewitness identification
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In eyewitness identification, in criminal law, evidence is received from a witness who has actually seen an event and can so testify in court. In the United Kingdom, the Criminal Law Review Committee, writing in 1971, another commentator observed that the eyewitness identification of a person as a perpetrator was persuasive to jurors even when far outweighed by evidence of innocence. The Innocence Project has facilitated the exoneration of 214 men who were convicted of crimes they did not commit, a number of these cases have received substantial attention from the media. Jennifer Thompsons case is one example, She was a student in North Carolina in 1984, when a man broke into her apartment, put a knife to her throat. According to her own account, Ms. Thompson studied her rapist throughout the incident with great determination to memorize his face, I studied every single detail on the rapists face. I looked at his hairline, I looked for scars, for tattoos, when and if I survived the attack, I was going to make sure that he was put in prison and he was going to rot. Ms. Thompson went to the station later that same day to work up a of her attacker. Several days later, the constructed a photographic lineup. She later testified against him at trial and she was positive it was him, without any doubt in her mind. I had picked the right guy, and he was going to go to jail, If there was the possibility of a death sentence, I wanted him to die. I wanted to flip the switch, but she was wrong, as DNA results eventually showed. It turns out she was presented with her actual attacker during a second trial proceeding a year after the attack. Jennifer Thompsons memory had failed her, resulting in a substantial injustice and it took definitive DNA testing to shake her confidence, but she now knows that despite her confidence in her identification, it was wrong. Cases like Ms. Thompsons prompted the emergence of a field within the social sciences dedicated to the study of eyewitness memory and the causes underlying its frequently recurring failures. One of the reasons that eyewitnesses to crimes have been shown to make mistakes in their recollection of perpetrator identities, is the police procedures used to collect eyewitness evidence. System variables are those that affect the accuracy of eyewitness identifications, one of the most obvious causes of inaccurate identifications resulting from police lineups is the use of a lineup that does not include the actual perpetrator of the crime. In other words, police suspect one person of having committed a crime, when the actual perpetrator is not included in the lineup, research has shown that the police suspect faces a significantly heightened risk of being incorrectly identified as the culprit. According to eyewitness researchers, the most likely cause of this occurrence of misidentification is what is termed the relative judgment process
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DNA profiling
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DNA profiling is a forensic technique used to identify individuals by characteristics of their DNA. A DNA profile is a set of DNA variations that is very likely to be different in all unrelated individuals. DNA profiling should not be confused with full genome sequencing, DNA fingerprinting has also been widely used in the study of animal and floral populations and has revolutionized the fields of zoology, botany, and agriculture. Although 99. 9% of human DNA sequences are the same in every person, enough of the DNA is different that it is possible to one individual from another. DNA profiling uses repetitive sequences that are variable, called variable number tandem repeats, in particular short tandem repeats, also known as microsatellites. VNTR loci are very similar between closely related individuals, but are so variable that unrelated individuals are extremely unlikely to have the same VNTRs. The modern process of DNA profiling was developed in 1984 by Sir Alec Jeffreys while working in the Department of Genetics at the University of Leicester, developed by Professor of Genetics Sir Alec Jeffreys, the process begins with a sample of an individuals DNA. A common method of collecting a sample is the use of a buccal swab. Samples obtained from blood relatives can provide an indication of an individuals profile, a reference sample is then analyzed to create the individuals DNA profile using one of a number of techniques, discussed below. The DNA profile is then compared against another sample to determine there is a genetic match. The first methods for finding out genetics used for DNA profiling involved RFLP analysis, DNA is collected from cells, such as a blood sample, and cut into small pieces using a restriction enzyme. This generates thousands of DNA fragments of differing sizes as a consequence of variations between DNA sequences of different individuals, the fragments are then separated on the basis of size using gel electrophoresis. The separated fragments are transferred to a nitrocellulose or nylon filter. The DNA fragments within the blot are permanently fixed to the filter, radiolabeled probe molecules are then added that are complementary to sequences in the genome that contain repeat sequences. These repeat sequences tend to vary in length among different individuals and are called variable number tandem repeat sequences or VNTRs, the probe molecules hybridize to DNA fragments containing the repeat sequences and excess probe molecules are washed away. The blot is then exposed to an X-ray film, fragments of DNA that have bound to the probe molecules appear as dark bands on the film. The Southern blot technique is laborious, and requires large amounts of undegraded sample DNA, also, Karl Browns original technique looked at many minisatellite loci at the same time, increasing the observed variability, but making it hard to discern individual alleles. These early techniques have been supplanted by PCR-based assays, developed by Kary Mullis in 1983, a process was reported by which specific portions of the sample DNA can be amplified almost indefinitely
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Hague Evidence Convention
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The treaty was negotiated in 1967 and 1968 and signed in The Hague on 18 March 1970. It entered into force in 1972 and it allows transmission of letters of request from one signatory state to another signatory state without recourse to consular and diplomatic channels. Inside the US, obtaining evidence under the Evidence Convention can be compared to comity, the Hague Evidence Convention was not the first convention to address the transmission of evidence from one state to another. The 1905 Civil Procedure Convention—also signed in The Hague—contained provisions dealing with the transmission of evidence, however, that earlier convention did not command wide support and was only ratified by 22 countries. The United States initiated the negotiations led to the creation of the Hague Evidence Convention. However, insofar as requests to United States courts are concerned, between states of the European Union, the Hague Evidence Convention has largely been supplanted by Council Regulation No. 1206/2001 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters, as of 2016, there are 59 states which are parties of the Hague Evidence Convention. Fifty-four of the HCPIL member states are party to the Hague Evidence Convention, in addition, five states that are not members of the HCPIL have joined the Hague Evidence Convention. Article 39 of the Hague Evidence Convention expressly permits states which are not members of the HCPIL to accede to the Convention, Hague Evidence Convention at the Hague Conference website Ratifications
6.
Witness
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A witness is someone who has, who claims to have, or is thought, by someone with authority to compel testimony, to have knowledge relevant to an event or other matter of interest. A percipient witness or eyewitness is one who testifies what they perceived through his or her senses, a hearsay witness is one who testifies what someone else said or wrote. In most court proceedings there are limitations on when hearsay evidence is admissible. Such limitations do not apply to grand jury investigations, many administrative proceedings, also some types of statements are not deemed to be hearsay and are not subject to such limitations. An expert witness may or may not also be a percipient witness, a reputation witness is one who testifies about the reputation of a person or business entity, when reputation is material to the dispute at issue. Sometimes the testimony is provided in public or in a confidential setting, although informally a witness includes whoever perceived the event, in law, a witness is different from an informant. A confidential informant is someone who claimed to have witnessed an event or have hearsay information, the information from the confidential informant may have been used by a police officer or other official acting as a hearsay witness to obtain a search warrant. A subpoena commands a person to appear and it is used to compel the testimony of a witness in a trial. Usually, it can be issued by a judge or by the representing the plaintiff or the defendant in a civil trial or by the prosecutor or the defense attorney in a criminal proceeding. In many jurisdictions, it is compulsory to comply, to take an oath, in a court proceeding, a witness may be called by either the prosecution or the defense. The side that calls the witness first asks questions, in what is called direct examination, the opposing side then may ask their own questions in what is called cross-examination. In some cases, redirect examination may then be used by the side called the witness. Recalling a witness means calling a witness, who has given testimony in a proceeding. Witness are usually permitted to testify to what they experienced first hand. In most cases, they may not testify about something they were told and this restriction does not apply to expert witnesses. Expert witnesses, however, may only testify in the area of their expertise, Eyewitness testimony is generally presumed to be more reliable than circumstantial evidence. Studies have shown, however, that individual, separate witness testimony is often flawed and this can occur because of flaws in Eyewitness identification, or because a witness is lying. One study involved an experiment, in which subjects acted as jurors in a criminal case, jurors heard a description of a robbery-murder, then a prosecution argument, and then an argument for the defense
7.
Witness impeachment
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Witness impeachment, in the law of evidence of the United States, is the process of calling into question the credibility of an individual testifying in a trial. The Federal Rules of Evidence contain the rules governing impeachment in US federal courts, under the common law of England, a party could not impeach its own witness unless one of four special circumstances was met. The Voucher Rule required the proponent of the witness to vouch for the truthfulness of the witness, here are the special circumstances, If the witness were an adverse party. If the witness were one that the party was required by law to call as a witness, If the witness surprised the party who called him by giving damaging testimony against that party. The rule has been eliminated in many jurisdictions, under the US Federal Rules of Evidence, Rule 607 permits any party to attack the credibility of any witness. Witness bias may be catalyzed by any number of circumstances, ranging from the blood relationship to a party to his financial stake in the outcome of the litigation. Most US jurisdictions require a cross-examiner to lay a foundation before extrinsic evidence can be used to bias for impeachment purposes. A party may impeach a witness by introducing those of his statements that are inconsistent with his current testimony at trial. In a minority of jurisdictions that follow FRE801, the prior inconsistent statement may be used not only to impeach, a prior inconsistent statement offered solely for impeachment purposes is admissible regardless of whether it satisfies those requirements. The cross-examining attorney need not disclose or show the contents of a prior inconsistent statement to a prior to the moment he is questioned. If the witnesss attorney asks to see the prior inconsistent statement, however, the majority of US jurisdictions permit parties to impeach witnesses by demonstrating their bad character regarding truthfulness. Under the Federal Rules a party may demonstrate that by reputation or opinion testimony and that is, a witnesss credibility cannot be bolstered, only impeached. Additionally, a party may impeach a witness for bad character by introducing evidence of the prior conviction of a crime. If the witness is defendant, the burden is on the prosecution to show that the value of the impeachment outweighs the danger of unfair prejudice to the defendant. The probative value must merely outweigh unfair prejudice, the probative value must substantially outweigh unfair prejudice. Under California Evidence Code Section 787, a party may not use either cross-examination or extrinsic evidence to impeach a witness by showing specific instances of prior misconduct, the witness was unable to sense what he claimed to have, or he lacked the requisite mental capacity. Older common law would exclude an incompetent witness from testifying, modern rules, such as the Federal Rules of Evidence, allow the witness on the stand to consider competence as one of many factors that juries are to consider to determine credibility of the witness. The witness is induced to contradict the own testimony during the present proceeding and that differs from inconsistent statements above
