Evidence

Proof of fact(s) presented at a judicial hearing such as a trial.

Proof of fact(s) presented at a trial.

Neatly divided into the most prevalent, direct evidence, and the slightly more difficult, circumstantial evidence.

A judge, at the commencement of a trial, is like an empty scale - the scales of justice!

She knows nothing at that point so the scale is perfectly balanced.

It is up to the two opposing sides to teeter the scale one way or another with evidence so that at the end of the hearing, she can determine what the truth likely is and can render judgment on a preponderance of what she's heard or seen: the evidence.

Evidence is the ways and means used to persuade the judge or jury of your facts as the judge (or jury) is expected to start off with a blank slate; no preconceived idea or knowledge of the facts.

It is up to the opposing parties to, by taking turns, prove (by providing evidence), to the satisfaction of the court (or jury), the facts needed to support their respective cases.

In a civil suit, the plaintiff has the burden of proof so in the event of a tie in the evidence, the plaintiff loses.

In a criminal trial, the burden (a different burden: beyond a reasonable doubt), is on the prosecutor.

But there has to be rules of evidence or else each trial becomes a free-for-all. As Justice Thurlow said in Fox v Mackreth:

"It is of very little consequence to the public to lay down definite rules of law if you have indefinite rules of evidence."

The best and most common method of presenting evidence to a Court of law is by document. (eg. a signed contract). This is an example of direct evidence, sometimes called "real evidence."

Documents are frozen in time as of their creation and present their facts without the weaknesses and distractions of human emotion.

The second best method is by oral or viva voce testimony; where you have an eye-witness swear to tell the truth and to then relate to the court (or jury) their experience.

Sometimes, the evidence can be things or events from which conclusions can be drawn, such as Justice Pennefather's example in Harvey v Church, a footprint in the sand is evidence that someone has been walking there.

In other rarer cases, evidence can be circumstantial.

REFERENCES:

• Fox v Mackreth 2 Cox 320 (1788)
• Harvey v Church 17 NZLR 19 (1898)