04 September 2012 Written by  Kahsay Debesu and Andualem Eshetu

Evidence law in civil and criminal cases

In both criminal and civil proceedings, the law of evidence has a number of purposes. However, due to the different nature of civil and criminal cases, the rules applicable on them may be different. The civil case is one instituted by individual for the purpose of securing redress for a wrong, which has been committed against him, and if he is successful he will be awarded money or other personal relief. While, a penal prosecution is instituted by the government for the purpose of securing obedience to its laws by the punishment or correction of the lawbreaker. Therefore, since the relief sought as well as the purpose of instituting civil and criminal cases is different, the existence of difference regarding the strict nesses of the evidentiary rules applicable on those two cases seems proper.

Generally, the purpose of evidentiary rules is to assist the court in establishing the truth between the party's conflicting versions of the fact in the case. However, 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.

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 as there is a greater equality in resources between the parties in contrast with criminal proceedings in which the power full government in one side and the weaker accused on the other side are there. Also, whilst losing civil case may result in the claimant or the defendant suffering serious damage to his financial resources or property, he will not loss his liberty life or suffer the same social stigma as a person who has been convicted of criminal offence. This is reasons why, there is huge difference regarding the standard of persuasion required in civil and criminal cases.

The main difference regarding evidentiary rules in civil and criminal cases lies on the required standard of proof. The rules relating to the standard of proof determines how much proof is required for a party to persuade the court. 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. However, “beyond reasonable doubt” means that you must be virtually certain. The law does not demand that, for you to find the defendant guilt, you be absolutely certain of his guilt, because there are few, if any, things in life we can be absolutely certain about. Here, one may raise question that applying such strong standard in criminal   cases may prevent the truth from being discovered in the wide public interest. However, we all know that guilty people may escape criminal punishment. A criminal might not be apprehended, if apprehended, he might not be tried, if tried, he might be acquitted. We are not happy about this situation, but it is an every day matter that we tolerate. But consider how troubling- and how noteworthy- we find it on those rare occasions where we punish somebody for a crime that it turns out later, he did not commit.

The standard of persuasion in civil case may be highly variable, depending on the nature of precise issue at stake. For instance, among 4 witnesses, if 3 of them testify in favor of the party on a given issue, we can say that the standard required in civil case has fulfilled. Because the testimony of those 3 witnesses over weighted the testimony of one witness who testified against the party.  

Who has a 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 ).

We have discussed the main differences existed between civil and criminal proceeding regarding evidence i.e. on burden and degree of proof. However, there are also another differences. Now we will discus such other differences in line with our evidence rules shortly.

1. 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.

2. 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.

 

Why judicial admissions are not conclusive in criminal cases?

 

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.

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.

The above discussed differences between civil and criminal proceedings are not the only differences. You will come across with further differences throughout your study of this course.  

Classification of Evidence

Evidence can directly or indirectly lead to the required conclusion as to whether a disputed fact exists or not. Thus, evidence is divided in to two: direct and circumstantial.

If believed, 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. It doesn't directly tell you or prove the existence or non-existence of the alleged or disputed fact. 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.

Circumstantial evidence requires the judge to draw generalizations from commonly held assumptions about human nature. In a murder case for example, evidence that a defendant lied to the police about his where about of the relevant time and had a violent argument with the victim some days before the killing would constitute relevant circumstantial evidence of the accusede's guilt. The inference is based on the common assumption that murderers normally have a motive for committing murder and will usually cover their tracks by lying.  

 

Can a wrong inference be made form circumstances?

 

Since most of offences are being executed in a very sophisticated manner, it is difficult to get direct evidence. In such case, the option we have is, proving the disputed fact by circumstantial evidence. However, there is a possibility of making wrong inferences form such circumstances. For instance, in a murder case, if you consider the footsteps alone, it can be the footsteps of any one from the victim's house. And also it does not mean that anyone who buys piston or knife has an intention to kill a person.

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.

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