Law of Evidence: An Analysis of Concepts and Types

This essay provides a comprehensive analysis of the law of evidence, beginning with a definition of evidence and its evolution within legal systems. It examines the core principles of evidence law, emphasizing the admissibility of relevant and reliable information in court proceedings. The essay delves into the categorization of evidence, differentiating between primary and secondary sources and highlighting their respective roles in establishing facts. Furthermore, it outlines and discusses various types of evidence, including real evidence, providing examples to illustrate their practical application in legal cases. The essay draws on case law, such as R v Khan (Sultan), to demonstrate the practical application of the law of evidence and its impact on judicial decisions, emphasizing fairness and justice. Overall, the essay provides a solid overview of the subject, covering key concepts and practical applications.

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Law of Evidence

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INTRODUCTION
Evidence, in law, means any material items or assertions of factors which are submitted
to a tribunal in order to ascertain the truth regarding a particular fact which is under
investigation before the court.1 With time and changes in court procedures, rules of
evidence have evolved pursuant to different legal systems and these changes are
brought in order to shape the varying legal requirements which define what is
constituted as an admissible and sufficient proof. In this essay, the concept of the law of
evidence will be evaluated by assessing the definition of different scholars. The concept
of law of evidence will be analysed in this essay to understand how it has evolved with
time. Categorises of evidence will be analysed in this essay to understand their
importance in the delivery of the judgement by the court. This essay will also outline
four types of evidence to understand their role in legal cases by evaluating their
principles.
LAW OF EVIDENCE
Before understanding what law of evidence is, it is important to understand the concept
of “evidence” in general since the term evidence and law of evidence are two different
concepts. Evidence word was originated from the Latin word “evidentia” which means
to show clearly, to ascertain, to prove or to make something clear to the slight of
discovery.2 Based on this definition, the evidence is referred to something which is
provided in order to prove or disprove the existence or non-existence of an alleged act.
In case a party alleged that a certain fact exists, then the party has to provide reliable
evidence in order to support the argument, or another party against whom the claim is
made can provide evidence to disprove the existence or non-existence of a particular
fact. However, evidence may not be considered as valid evidence to prove or disprove a
certain fact in the eyes of the evidence law. Instead, the evidence is presented before the
court in order to provide or disprove a fact which is under question.3 Thus, the objective
of providing evidence in a particular case is to satisfy the court regarding truth or
1 Susan Haack, Evidence matters: Science, proof, and truth in the law (Cambridge University Press 2014).
2 James AT Lancaster and Richard Raiswell, Evidence in the Age of the New Sciences (Springer 2018).
3 Mark James and Tristram Hodgkinson, Expert evidence: Law and practice (Sweet & Maxwell 2015).

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untruth of a certain fact. In this context, the aim of the law of evidence is to allow
relevant, reliable and admissible evidence in the court to support a particular argument.
The procedure of evidence has evolved over the period in order to disallow the use of
particular evidence in the court. Jeremy Bentham provided an alternative method of
‘free proof’ which he argued that all obtainable evidence should be presented before the
court.4 However, the purpose of the law of evidence is to limit the admission of a
particular type of evidence in the court to make sure that the trial is fair. The law of
evidence has evolved in the past generations based on the ground of fairness and
justice. All the jurisdictions which are based on the English common law such as
Zambian legal system, evidence must conform to a wide range of principles and
restrictions in order to be admissible. The objective of these policies is to ensure that
the evidence present before the court must be relevant to the case. The law of evidence
provides guidelines and rules which affect judicial investigations, and it concerned with
the operations of courts of justice. It assists in eliminating discrimination against the
selection of material based on which the court provides its judgement in a particular
case.5 Many changes have been made in the law of evidence in order to shape its policies
to reinforce the adversarial system in which these guidelines function.
Moreover, in the past few decades, the pressure for reforming the law of evidence is
progressing, and there have been substantial restrictions regarding these policies. The
trend is changing towards superior admissibility. Various exclusionary rules are
introduced with the goal of producing a logical body of guidelines and principles to
benefit the court in relation to determine the truth about the facts in the context. One of
the key examples of admission of evidence which is effective is demonstrated in the
judgement of R v Khan (Sultan).6 In this case, it was held by Lord Nolan provided that
Khan has arrived at Manchester airport from Pakistan in the same flight as his cousin
Nawab. It was discovered that Nawab was smuggling heroin through the flight. He was
stopped and searched by the police officers, and he was arrested and charged for
possessing and smuggling heroin. During the investigation, no drugs were found on
Khan, and he did not confess that he was involved in the process of drug smuggling;
therefore, he was released without any charge. Shortly after this incident, Khan went to
4 Susan Haack, ‘The embedded epistemologist: Dispatches from the legal front’ (2012) 25 (2) Ratio Juris
206-235.
5 Richard Royall, Statistical evidence: a likelihood paradigm (Routledge 2017).
6 [1996] ICHRL 46

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Sheffield with a man known as Bashforth. This information was available to the police
department, and they installed a listening device outside to hear their conversation.
Khan and Bashforth were not aware regarding this listening device.
The police collected a tape recording through their conversation in which Khan clearly
made declarations regarding admitting to helping Nawab in smuggling the drugs. Based
on this tape, the police arrested Khan because he confessed in the tape regarding
accepting his crime. It was held by the court that collection of this tape was a civil
trespass which caused destruction to the property. It was acknowledged by the judge
that Khan has pleaded guilty and it was held he has the right to challenge that ruling. 7
However, the appeal was dismissed by the Court of Appeal. In this case, two key
concerns were raised; the first concern was whether the evidence is admissible and if it
is admissible, then the court should not be expelled its application as per the discretion
under common law or section 78 of Police and Criminal Evidence Act 1984. 8 It was
argued that the police officers did not violate any regulations or legal framework while
collecting the audio tape. The police had authorised surveillance because they had
collected the information that Bashforth was involved in the process of dealing in
heroin.
Khan argued that the collection of the evidence is not correct since private discussions
should not be allowed as correct evidence. It was also argued by Khan that section 9 of
Interception of Communications Act 19859 is violated by this evidence. Therefore, this
case is a good example which shows the importance of the law of evidence. It also
contradicts with theory ‘free proof’ theory given by Bentham since allowing all the
evidence while entertaining a case becomes difficult for the court. In this case, the court
provided that section 78 of PACE 1984 is not breached since the objective of accepting
this evidence is to ensure a fair trial by the court. These incidents shaped the law of
evidence and allowed the courts to determine which evidence is relevant by evaluating
the facts of a particular case.10 The judgement of R v Khan highlighted that there are
both practical and academic issues relating to the law of evidence which resulted in
shaping the evidence law. The court finds it challenging to decide which evidence
7 Casemine, R v Khan (Sultan) (2017)
<https://www.casemine.com/judgement/uk/5b46f2082c94e0775e7f0faf>.
8 Police and Criminal Evidence Act 1984
9 Interception of Communications Act 1985
10 Charanjit Singh-Landa and Charanjit Singh Landa, Q&a Evidence 2013-2014 (Routledge 2012).

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should be acceptable in the law while ensuring the principle of fairness and justice.
Different rights, liabilities and duties of parties are necessary to be taken into
consideration by the court while determining whether evidence should be accepted in a
particular case or not.
The study of the law of evidence assists advocates in arguing which evidence should be
acceptable in the court to prove or disprove a certain point. The duties, liabilities and
rights of parties are identified in substantive laws which define the actions which are
considered as offences, and they also provide provisions regarding different
punishments for those offences. These laws are applied by the court through procedural
laws which are categorised into two types. The first type of procedural laws deal with
the procedures which courts follow which entertaining a case.11 The second type of
procedural laws deals with different modes to proof the existence of different rights,
duties and liabilities. The law of evidence provides key policies regarding the law of
evidence which are followed by parties to ensure that they comply with procedural law.
For example, the provisions regarding how the parties can prove a murder are given in
the law of evidence. The parties have to follow a particular procedure to ensure that
they provide all the relevant evidence based on which the court can provide a
judgement to hold the guilty party liable for murder.12 Thus, the objective of the law of
evidence is the identification of key procedures and evidence which assist the parties in
proving or disproving the existence or non-existence of a particular fact.
CATEGORIES OF EVIDENCE
Primarily, evidence categorised into two types which include primary and secondary
evidence. A primary source of evidence provides proof regarding the record of the
original events. These evidences are considered as the best when it comes to deciding
the existence or non-existence of a particular fact before the court. On the other hand,
secondary evidence suggests that there is better evidence available in relation to
establishing the legitimacy of a specific fact. Original documents which are submitted by
the parties in the court are considered as primary evidence which cannot be denied by
the court.13 These evidences make it easier for the court to increase the efficiency of the
11 I H Dennis, The Law of Evidence (Sweet & Maxwell 2013).
12 Adrian Keane and Paul McKeown, The Modern Law of Evidence (Oxford University Press 2018).
13 Lisa Cherkassky, Julia Cressey and Christopher Gale, Legal Skills (Macmillan Education UK 2011).

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overall process. On the contrary, secondary evidence is the copy of the original
document which is still admissible; however, it has less value in the eye of the law than
compared to the primary document. Therefore, parties in a particular case have to focus
on providing the original document before the court to ensure that the court reaches a
conclusion quickly. The time taken by the court in reaching its judgement depends upon
the fact that how many primary and secondary sources of evidence are provided by the
parties before the court.
TYPES OF EVIDENCE
There are different types of evidence which are divided based on their features and
acceptance before the court. The first rule of evidence is that it must be relevant to the
case; otherwise, it is not admissible in the court. Following are five different types of
evidence.
REAL EVIDENCE
Real evidence is usually tangible evidence, and they are usually in the form of some kind
of material object which is produced before the court in order to show that it exists. 14
Many times this evidence is also brought before the court in order to identify the
physical properties or condition of the object and so on. A good example of real
evidence is damaged goods which are brought before the court in order to establish the
fact that the seller has sold damaged goods to the buyer. These evidences are generally
involved with certain event which is relevant to the judgement of the case. A written
contract which is formed between the parties is considered as a real document which
can be brought by the parties into the court to establish the fact that the defendant has
breached the contractual terms. Moreover, if the contract is written and signed with
flattering and unsteady hands, then it can be established before the court that the
contract was formed between the parties pursuant to duress. Other relevant real
evidence of different cases includes a crumpled automobile, bloody bloomers, the scene
of the accident, the murder weapon and others. In order to be admissible in the court, it
is important that the real evidence must be competent, relevant and material.15 These
14 John Anderson, Uniform evidence law (Federation Press 2016).
15 Christopher B Mueller, Laird C Kirkpatrick and Liesa L Richter, Evidence under the rules: Text, cases, and
problems (Aspen Casebook 2018).

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are considered as prerequisites which are necessary to be present for admissible real
evidence based on which the court can provide its judgement. The parties of a suit can
use real evidence as a means of persuasion which can be effective.
In case the advocates show real evidence to jurors, then they are more likely to rely on
this evidence while reaching a particular conclusion in the case. In the case of R v
Neville16, the court provided that those evidences come within the scope of “real”
evidence which is automatically record through some process or events like printing
machines or surveillance cameras or recording of telephones calls from a particular
number.17 The alcohol level which is recorded by authorities through the breath of the
parties in an Intoximeter is considered as real evidence. The court provided in the case
of R v Woods18 that a machine which simply carries out arithmetical procedures comes
within the scope of real evidence. In R v Dodson and Williams19 case, two people were
accused based on their photographs which were through the security cameras when
they were attempting robbery in a building society. The court established that it is
considered as real evidence because the photographs are taken by the cameras which
are installed for surveillance of the area. The easiest and usually the least troublesome
method of proving the authenticity of real evidence is a testimony of a witness. For
example, a ring can have an inscription through which it can be identified in the court.
Therefore, real evidence is referred to material or physical objectives which are
produced before the court as a mean to prove a particular fact which is relevant to the
case.
HEARSAY EVIDENCE
Hearsay evidence is where a witness before a court proceeding seeks to give evidence
regarding a specific fact on the basis that this was said to him/her by a third party. In
this case, the witness has neither seen nor heard the incident, neither had he/she
perceived the incident through any of his/her senses.20 However, this information
16 [1991] Crim LR 288
17 Ray Purdy and Denise Leung, Evidence from Earth Observation Satellites: Emerging Legal Issues
(Martinus Nijhoff Publishers 2012).
18 (1982) 74 Cr App R 312
19 (1984) 79 Cr App R 220
20 Helen M Paterson, Richard Kemp and Sarah McIntyre, ‘Can a witness report hearsay evidence
unintentionally? The effects of discussion on eyewitness memory’ (2012) 18 (6) Psychology, Crime & Law
505-527.

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comes to the knowledge of the witness through some other person. This is a weak
category of evidence which is difficult to prove in the court. In this context, a relevant
judgement was provided by the court in the case of Subramaniam v Public Prosecutor.21
In this case, the appellant was sentenced to death for possessing twenty rounds of
ammunition without having a lawful authority to possess those ammunitions. It was
argued by the appellant that he had been captured by terrorists and he was working
under duress. They argued that the terrorists captured him and forced him to take this
ammunition to act as per their plan. He told the special officers that he intended to
surrender himself to the police. The appellant sought to present evidence before the
court to establish that fact that he was captured by terrorists and he was working under
duress.
The court provided that the proffered evidence is not admissible before the court since
the terrorist was not called as a witness. Another relevant judgement by given in Myers
v. Director of Public Prosecutions22 case in which the House of Lords accepted the appeal
made by the appellant by providing that the evidence given by the manufacturer’s
records is inadmissible since it is hearsay evidence. However, there are many
exceptions in which the hearsay evidence is accepted by the court and judgement is
given based on this evidence. In the case of ‘first-hand hearsay,’ the court considers the
evidence given by the party as a direct testimony which is given by the party. For
example, if a person saw someone dies and the dying person told him who murdered
him, then the court can admit this hearsay evidence to hold the murderer liable.23 Based
on which the court rejected the appeal of the appellant based on the claim that there
was no evidence of duress and he was convicted by the court. It shows that parties find
it difficult to prove hearsay evidence before the court since it is weak evidence to prove
or disprove a particular fact.
DOCUMENTARY EVIDENCE
Documentary evidence is a type of real evidence, for example when a contract is offered
before the court in order to prove a particular term. When a document is used by the
21 [1956] W.L.R. 965
22 [1965] A.C. 1001
23 Jonathan Herring, ‘Escaping The Shackles Of Law At The End Of Life: r (nicklinson) V Ministry Of Justice
[2012] Ewhc 2381 (admin)’ (2013) 21 (3) Medical Law Review 487-498.

8
parties similar to real evidence for authentication of a particular fact, it is referred as
documentary evidence.24 There is a wide range of documentary evidence which can be
presented before the court in order to prove or defend a claim by the parties. Generally,
any document which contains terms in writing comes within the scope of documentary
evidence which includes digital records. Some examples of documentary evidence
include diaries, work accidental log books, medical notes, spread sheets, pay slips,
emails, transcripts of phone calls, employment contracts, receipts, repair invoices and
others. However, since the documentary evidence contains human language and due to
the historical development of common law, the documentary evidence creates a
problem when they contain hearsay. In order to ensure that the documentary evidence
is relevant to the case, parties can evaluate certain key factors. For example, parties
should evaluate whether the documentary evidence contains any issue of parol
evidence rule. The parol evidence rule barred the parties from admitting any external
evidence which varies with the terms of the written agreement formed between them
which is usually considered as a matter of substantive law rather than the rule of
evidence.25
They should consider whether there is an authentication problem with the legitimacy of
the documents. They should also consider whether there is any hearsay problem
relating to the documents present before the court which could lead to dismissal of the
document. In the digital era, the medium of documentary evidence has evolved with the
popularity of technologies.26 For example, electronic storage devices and documents
stores in electronic mediums are considered as evidence before the court. Printout of
documents, digital signatures, microfilms, video tapes and other electronic stores
devices are approved by the court as a medium of documentary evidence. Thus, a wide
range of electronic equipment which can be used by parties to record or store
documents is admissible in the court. As per section 2 of Evidence Act, Chapter 43 of the
Laws of Zambia27, electronic documents copies, books, maps, drawing and plans are also
accepted by the court as valid proof to establish or deny a particular fact. In the case of
24 Jean-Francois Rouet et al., ‘Understanding historical controversies: Students’ evaluation and use of
documentary evidence’ (2013) 2 International Review of History Education 95-116.
25 David G Epstein, Timothy Archer and Shalayne Davis, ‘Extrinsic Evidence, Parol Evidence, and the Parol
Evidence Rule: a Call for Courts to Use the Reasoning of the Restatements Rather than the Rhetoric of
Common Law’ (2014) 44 NML Rev. 49.
26 Jefferson L Ingram, Criminal evidence (Routledge 2017).
27 Evidence Act, Chapter 43 of the Laws of Zambia

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documentary evidence, there are both primary and secondary types. The primary
documents are the original copies of conducts and documents which are presented by
the parties before the court. On the other hand, secondary documents include copies of
the original document which are presented before the court to establish the fact that
their original copies are present.
DIRECT EVIDENCE
The term direct evidence is used to describe any evidence which stands alone in order
to prove or deny a particular fact. The direct evidence provides direct proof regarding a
particular fact, and it did not require any type of inference. A good example of direct
evidence is the testimony given by an eyewitness regarding a particular act. It is the
most common form of direct evidence which is admitted by the court. For example, in
the judgement of R V Shone28, the evidence given by a stock clerk and a sales manager
who was responsible to made entries regarding workers’ record cards was considered
as direct evidence rather than hearsay evidence. The court gives priority to direct
evidence, and it is prioritised while entertaining a particular case.
CIRCUMSTANTIAL EVIDENCE
Opposite to direct evidence, circumstantial evidence is defined as a set of facts which
are taken together by parties which leads to the desired conclusion. In order to
establish circumstantial evidence, parties have to rely on logical reasoning to prove a
particular fact which is not the case with direct evidence.29 A good example of
circumstantial evidence includes a pattern of blood spatters on a wall which is used by
detectives to find the suspect to a crime. Many people believe that a person cannot be
convicted on circumstantial evidence; however, it is a false notion. Most criminals are
convicted based on circumstantial evidence as long as the court believes that it is
adequate to meet the established standards of proof; thus, the court can convict a
person solely based on circumstantial evidence. A good example is the judgement of
Kafunda v The people30 in which there was ample evidence circumstantial evidence
28 (1983) 76 Cr App R 72
29 Michael P Scharf and Margaux Day, ‘The International Court of Justice's Treatment of Circumstantial
Evidence and Adverse Inferences’ (2012) 13 Chi. J. Int’L. 123.
30 (2005) Z.R. 31 (S.C.)

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available against the appellant. He was the last person to see the deceased alive, and he
led the police to the shallow grave. The medical records provided that the deceased was
shot by a close range. An empty cartridge was recognised in the grass near the location
in which there are three live bullets. Moreover, a similar empty cartridge was found in
the appellant’s jacket. The court convicted the appellant while relying on the
circumstantial evidence.
CONCLUSION
Based on the above observations, it can be concluded that the law of evidence plays a
major role in the court of justice which by helping the court in reaching the right
decision. The judgement given by tribunals is based on the truth which is founded on
evidence. The courts owe a primary duty to conduct proper proceedings while
evaluating relevant evidence. Thus, the law of evidence is focused on procedural
regulations relating to proving and presenting the facts to support the arguments made
by the parties. Evidence is divided into two categories which include primary and
secondary evidence. Moreover, different types of evidence are evaluated in this essay to
understand their role in judicial proceedings such as real, direct, hearsay, circumstantial
and documentary.

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BIBLIOGRAPHY
Books
Anderson J, Uniform evidence law (FP 2016)
Cherkassky L, Cressey J and Gale C, Legal Skills (MEUK 2011)
Dennis IH, The Law of Evidence (SM 2013)
Haack S, Evidence matters: Science, proof, and truth in the law (CUP 2014)
Ingram JL, Criminal evidence (Routledge 2017)
James M and Hodgkinson R, Expert evidence: Law and practice (SM 2015)
Keane A and McKeown P, The Modern Law of Evidence (OUP 2018)
Lancaster JAT and Raiswell R, Evidence in the Age of the New Sciences (Springer 2018)
Mueller CB, Kirkpatrick LC and Richter LL, Evidence under the rules: Text, cases, and
problems (AC 2018)
Purdy R and Leung D, Evidence from Earth Observation Satellites: Emerging Legal
Issues (MNP 2012)
Royall R, Statistical evidence: a likelihood paradigm (Routledge 2017)
Singh-Landa C and Landa CS, Q&a Evidence 2013-2014 (Routledge 2012)
Articles
Epstein DG, Archer T and Davis S, ‘Extrinsic Evidence, Parol Evidence, and the Parol
Evidence Rule: a Call for Courts to Use the Reasoning of the Restatements Rather than
the Rhetoric of Common Law’ (2014) 44 NMLR 49
Haack S, ‘The embedded epistemologist: Dispatches from the legal front’ (2012) 25 (2)
RJ 206-235
Herring J, ‘Escaping The Shackles Of Law At The End Of Life: r (nicklinson) V Ministry Of
Justice [2012] Ewhc 2381 (admin)’ (2013) 21 (3) MLR 487-498