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Types of Evidence
Law of Evidence (LAW6037)
Queen Mary University of London
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Types of Evidence
Five types of evidence, being:
- Direct
- Circumstantial
- Real
- Collateral
- Testimonial/non-testimonial
Direct evidence Proves a fact in issue directly. This includes testimony of the complainant of a criminal assault, evidence of an eyewitness who observed the crime in progress and the voluntary confession of the accused to having committed the offence charged. It is not necessarily conclusive, because it might be incomplete or disbelieved. If believed, such evidence will often suffice to determine particular facts in issue, and may be sufficient to dispose of the entire case by proving the accused's guilt beyond reasonable doubt.
Circumstantial evidence Indirect form of proof. This includes opportunity, motive, previous conduct, possession of incriminating articles and physical proof of identity. It is generally highly variable in calculating it's probative value, as motive and opportunity are not definitive forms of evidence. However, it would be a mistake to conclude that it is always probatively weak. Teper v R [1952]
- Lord Normand: Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another.
Real evidence Physical objects, such as seized drugs, contraband or stolen goods. Objects and documents, if relevant and not rendered inadmissible by any applicable exclusionary rule, may be adduced in the trial as 'exhibits' for the jury's inspection. The party tendering real evidence must prove its discovery and demonstrate an unbroken chain of custody as a pre-condition of admissibility, in order to establish that the evidence is authentic and has not been tampered with. Spiby [1990]
- Prosecution had adduced evidence of telephone calls relating to the sale of cannabis made by the accused from a hotel room. The calls were logged by the hotel's automated telephone
system. Defendant appealed on the basis that the record was hearsay evidence, but the court dismissed the appeal on the basis that the machine logged the calls without any human involvement, thus the log was real evidence.
Collateral evidence The dividing line tends to blur between evidence going directly to a fact in issue with evidence on 'collateral' matters, but in theory any proffered evidence not relating directly to the facts constituting an offence or to eligible criminal law defences is collateral. Collateral issues derive their relevance to the case from their implications for a further collateral question
Testimonial and Non-testimonial evidence Testimonial evidence is the evidence of a witness testifying orally and in person at trial. Circumstantial evidence can also be testimonial evidence, as where a witness at trial testifies to the accused's motive, or supports or undermines his alibi. Physical objects and other forms of real evidence, like fingerprints or hair samples, exemplify non-testimonial evidence, as they do not literally testify as human witnesses do. Whether a document is testimonial or not depends on the purpose for which the evidence is adduced or employed in trial. R v Daye [1908]
- A banker had received a sealed packet containing a formula. As part of its deliberations, the court was required to consider whether this constituted a 'document'.
- Darling J: Any written thing capable of being evidence is properly described as a document and it is immaterial on what the writing may be inscribed upon.
Finding Facts
Litigants must plead only facts, not law. The jury decides questions of fact, leaving questions of law for the judge. Decisions on the law give rise to binding precedent, whereas factual determinations do not. Appeals are on points of law, not fact. These all show a classificatory distinction between fact and law.
Constitutive facts and evidential facts Hohfeld (1923)
- Distinguishing between 'evidential' and 'constitutive' facts
- An evidential fact is one which, on being ascertained, affords some logical basis, not conclusive, for inferring some other facts. ◦ e. Police produces gun in court and testifies found at scene
Types of Evidence
Module: Law of Evidence (LAW6037)
University: Queen Mary University of London
