04 September 2012 Written by  Kahsay Debesu and Andualem Eshetu

Evidence in civil and common law legal systems

There are two major legal systems (legal traditions) in the world.  

They are (1) The Anglo - American (or the common law legal system). And (2) The continental or the civil law legal system.  

Is there a difference between the two legal systems regarding evidence rules?

Some argues that, it is hard to think of human relation in common law legal system to be completely different from that of the continental system and to be ruled entirely by different legal tradition they follow, the gap narrows. The points, which differential them, may relate to form or emphasis with some respects.  

However, we believed that, it is important to discuss about the existing differences between the two legal systems regarding the different rules of evidence they follow, and the weights they have attached towards different types of evidences and the rational there of. Because, this helps us to critically examine which system provides a means which facilitates conditions for the maintenances of justice in general, and which system goes in line with the purpose of evidence rules to achieve fair, accelerated and economic Justice. Thus, now, we will discuss the existing differences between the two legal systems regarding the approaches of evidence rules they follow by the way of comparison. Through our discussion, we have tried to associate those approaches with the Ethiopian arena.  

(A) Differences regarding the organization of the rule of evidence.              

The countries, which follow the common law legal system, have separate rules of evidence or separate code of evidence law. The rules determine what evidence is admissible and what evidence is not admissible. While, when we come to the law of evidence in the continental system there is no separate code of evidence law. Rules of evidence are sparsely distributed in both substantive and procedural laws.

This may create a question in our mind as to why the civil law legal system did not take the lead in the codification of evidence law since the codification of law characterizes the civil law system more than the common law. 

Why the common law countries took the lead in the codification of evidence law?

It is admitted by almost all authorities that the single main overriding reason for the existence of separate evidence law in common law tradition is the mistrust of Juries.[panels of some 12 men{non lawyers}] .It is widely accepted that most Jurors have little experience in analyzing evidence objectively, and many of them have prejudices that are not easy to suppress .Thus, to control, Jury to objectively analyze evidence, the option was to set rules which help jury regarding evidence.  

However, unlike the Anglo -American legal system in which the law of evidence is directly related to the institution of jury trial in civil as well as criminal cases, the objective of evidence law is less significant to continental system. Because, here there is no fear that relates to jury to compel an independent code of evidence law. They believe that the protection of the individual rights and just and fair determination of issues of fact which the Anglo- American rules of procedure and evidence are designed to serve are equally well secured by a system which places responsibility for decision on professional Judges which personal evaluation is un encumbered by complex and detailed rules.

B/ Difference regarding the sources of evidence rules

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. In this system the lower courts are bound by the decisions of higher courts or by their previous decisions in order to secure the uniform application of the law. In other words, the lower courts are obliged to respect the decisions of the higher courts (on the case of having similar question of fact or law) as a law. 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.

However, the fact that a question that has been passed before, may be very help full to another court when confronted with the same question. Even in countries where courts are not bound by decisions of the higher court or by their previous decisions, there is at tendency to look to past decisions and frequently to follow them.  

 Do you think Ethiopia follows the precedent   system at present time?  

Actually, at present time, all courts, whether federal or state, are bound to follow the decisions made by the federal supreme courts' cassation bench on question of law. (See Art 2(4) of the Fed courts' proclamation Re-amendment proclamation No 454/20005). There fore, if the federal Supreme Court’s cassation division passed a decision on question of law involving evidence, all other subordinate courts are bound to follow it as a law.

However, this precedent system employed in Ethiopia has certain limitation. In one hand, due to the absence of illustrations, which defines basic error of law, among a number of applications, which seeks review, only few of them have been gotten the chance of being reviewed by the cassation court.

Moreover, even though they have gotten the chance of being reviewed, there is no tradition of publishing and distributing case reports of the cassation through all level of courts in Ethiopia. As a result, the judges (especially of the regional state's judges) might not a warred about decision. And this hinders the application of the precedent system even on question of law.  

Further more, this precedent system on question of law does not exist on the decisions of other courts other than the federal Supreme Court's of cassation bench. For instance, some of the regional supreme courts have their own cassation benches. However, their decisions do not have the effect of precedent. Do you think the subordinate Oromiya courts are bound to follow the decisions rendered by the oromiya supreme court's cassation bench?  

Above all the precedent system does not works on the decisions involving question of facts unlike the common law traditions. There fore, even though the decisions of the federal supreme courts' cassation bench on question of law involving evidence serves as one sources of evidence rules, we can not say that Ethiopia follows the precedent system in its full sense.

C. The difference regarding the system of inquiry 

 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. This system is a party-lead system in which the judge has no investigative role. 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.

Control in the adversarial process rests with the parties. They have complete auth anomy. For this reason, the role of the advocate in the presentation of evidence can not be underestimated. The court will learn of the facts in the case through the par tie's advocates .The parties' legal representatives collect the evidence and decide what evidence should be presented and how it should be presented.

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.

In this system, the trial judge plays a far more active role than his adversarial counter part. As the court is charged with the task of making inquiry, the role of the advocate is considerably less important and is largely confined to ensuring his client receives a fair trial by checking that correct law is applied and that procedural rights are respected. Since the witnesses are considered as witnesses of the court, it is the judge who obtains most of the evidence through the process of questioning witnesses. The advocates' questions are restricted to clarifying points and obtaining further in formation.  

Evidence is generally extracted in a more humane and natural manner than that experienced by witnesses in the adversarial system. Witnesses are allowed to give their evidence in uninterrupted fashion although questions will be asked to obtain clarification and to prevent the witness from getting in to irrelevancies. There will also be questions to the witness that seek to challenge his or her credibility. However, it wound be rare to see the type of rigorous, some times aggressive questioning associated with cross-examination in the adversarial system.

Those who defend the adversarial system of justice do so passionately, arguing that it is in fact the most effective vehicle for ascertaining truth about past events. They do so in the belief that it minimizes bias in the inquiry process and that it is likely to unearth more facts and greater information because there are two sides searching for an advantage, motivated by their own self -interest, which is to win.

However, some argue that, in truth no one system of justice is totally adversarial or totally inquisitorial. Many systems are a hybrid of each. What about the Ethiopian system of inquiry?  
  

(D) 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. The physical presence of the witness affords the judge the opportunity of observing the witness demeanor. This is perceived as being a useful   indication of a witness's truthfulness. The witness box provides the best place for critical evidence to be tested and challenged in that, aside from the witness's demeanors, it enables external and internal in consistencies and matters going to the witness's credit to be tested. The physical presence of the witness also gives the accused the opportunity of confronting those who accuse him. This is widely felt to be component of the right to a fair trial. Moreover, in oral testimony, cross-examination is regarded as an invaluable tool for laying bare the truth. Because the smallest departure by a witness from his earlier written statement is likely to be used by the cross examining advocate as a weapon with which to attack the witness's credibility. Further more, testimonies are given on oath, the degree of being true is high. That is why the common law countries and their adversarial trial embrace the principle of morality.         

However, in continental law system like in France and Germany, 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. This makes it self -evident that the continental system lays emphasis on documents. They belief that, documents do not lies and they are easily manageable, and economical to bring them before the court of law. However, in case of witness testimony, it is based on the recollections of different people who witnessed the events with their own senses. Thus, recollection is not always accurate, particularly if the witnessed event was over in a matter of seconds or was committed in circumstances of fear or excitement. Moreover, if the witness's evidence is receives many months after the incident, there would be a risk of loss of memory over time. Not all witnesses give an account based on their honest recollection of event. Bias on the part of the witness or the will to perjure them may result in the court receiving evidence, which is misleading and untrue. Furthermore, it become difficult to get reliable witnesses if they died disappeared or become incompetent due to mental illness. There fore, the followers of the civil law traditions confirms that, due to the above reasons, the contribution of oral testimony for the maintenance of justice is less significant than documentary evidences.  

We are not, however, saying that no written evidence is important in common law nor do we say no oral evidence is important in continental legal system. They exist in both systems but the emphasis each system gives differs.  

 

(E) Are parties themselves competent witnesses in their own case?          

In common law legal systems, parties themselves are competent witnesses in their own case. Here, the defendant who chooses to plead not guilty puts the prosecution to proof of its case. The defendant is not a competent witness for the prosecution in these circumstances but is a competent witness in his own defense and may therefore choose whether or not to give evidence on oath.

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. Though the parties usually view the proceedings under dispute from their own angle, they are, all same, interested in the outcome of the litigation, and this often clouds their view of how the incidents on which the court's decision depends have actually taken place. For this reason, a party can not nominate itself as testifying to the accuracy of its assertions. Even in civil law countries, the exclusion extends to third parties, like spouse, relatives and other closely related person's of the party since it is not likely to expect a neutral testimony form such persons.

 Are parties competent Witnesses in their own case, in Ethiopia?  

To determine whether a party is competent witness to his own case or not in Ethiopian context, we have to see it in civil and criminal 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.' From this, we can understand that parties are competent witnesses in their own case in civil proceedings, and they are considered as witness for all practical purposes. There fore, like other witness, they are required to take an oath before testimony and are also subject to the rule of cross-examination.

However, there is no consensus regarding criminal proceedings as to the question whether the accused person is competent witness to his own case or not.

As we understand from art 142(1) and (3) of our criminal procedure code, after the witnesses for the injured party have been heard, the court shall inform the accused that he may make statement in answer to the charge and may call witnesses in his defense. And if the accused wishes to make a statement, he shall speak first. But the accused is not required to make his statements on oath. Moreover, he may not be cross-examined on his statements even though the court may put questions to him for the purpose of clarifying any part of his statement. Therefore, some argue that, unlike civil proceedings, the accused who made statement on his own behalf under Art 142 of Cr.p.c should not be considered as a competent witness for all practical purpose in the absence of tests of accuracy like cross examination.

However, other argues that even though it is left to the court to determine how much weight shall be attached to the testimony of the accused, there will not be any negative impact on the task of the administration of justice, if the accused become a competent witness in his own case.

According to Art 20 (4) of the FDRE constitution, the accused persons have the right to produce any evidence including his own testimony in his own defense. There fore, we can say that if the accused wishes to produce his own testimony in is own defense, he shall do so.  Since the accused persons have the right to be presumed innocent before conviction, they shall not be prohibited to produce their own testimony in their defense. (see art 20 (3) of FDRE constitution) .However ,what is provided under Art 142(3 )of Cr.p.c should be amended in the manner that enables the prosecutor to cross examine the accused person who testify in his own behalf as it is in civil proceeding under Art 261(3 ) of Civ.p.c .

There fore, even though, from the outset, it seems that there is a difference between civil and criminal proceedings as to whether the parties are competent witnesses to their own case or not, it is important to know that the law does not make difference if we interpret it in line with the constitution.

F/ Is hearsay evidence admissible as a rule?

As we have said earlier, there is much emphasis on oral argument and persuasion in common law legal systems. But when they say oral evidence, they are saying the direct one. The oral evidence must be direct in common law legal systems. Here, there is a rule, which excluded hearsay evidences. Because, in hearsay evidence there is no test of accuracy which enables the opponent party in discerning or checking whether or not the witness is speaking the truth, like cross- examination and physical presence of the real witness since it is the right of the accused to confront his or her accusers.

However, in civil law legal system, there is no general analysis of rules of admissibility of proof. Here, a judge has a discretion to determine the admissibility or otherwise of the evidence by applying his own personal evaluation. Thus, in civil law legal system there is no rule which excludes ''hearsay' evidence. Rather, it is left for the court to decide the value of what has been said. Please read a detailed discussion on rule and exceptions of hearsay evidence under chapter four

         

Generally, having different approaches regarding evidence in the two major legal systems creates a difference in the cost of litigation required to dispose the case. The litigation in common law legal system like England is substantially more costly than for example, in France or Germany. This is because of the high rate of Advocate's participation in the common law proceeding and their tradition of giving much emphasis to oral evidences. 

Last modified on Tuesday, 04 September 2012 13:11