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Evidence Law Complete Notes
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Highy thorough n0tes for Evidence Law at the University of Edinburgh, with all cases and authority with easy to follow notes and explanations, highlighted and structured.
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Introduction to Evidence● The law of evidence is the law governing the admission and proof of facts in
legal proceedings which manifests itself mainly as a series of technical
(exclusionary) rules.
● Simplistic formula for the resolution of legal proceedings:
○ Evidence → Facts → Application to Law → Justice
● The search for truth is at the center of litigation. Facts need to be proven or
agreed (the process of proof) which is done via the leading of evidence. The trier
of fact (judge or jury) determines what facts are proven and thereafter applies the
law to those facts to determine the outcome of the case.
○ The law of evidence is simply the series of legal rules that regulates this
process of proof.
● Case Study: The Trial of William Burke and Helen MacDougall
○ William Burke and his partner Helen MacDougall, worked with two
accomplices, William Hare and his wife, to lure people to their death. They
then sold the body to medical practitioners for dissection.
○ They were indicted on three charges of murder but the trial proceeded on
only one as there was insufficient evidence for the other two. There was
little evidence to incriminate MacDougall but the Lord Advocate proceeded
to sentence her anyway knowing her sentence would be death.
○ There was increasing social and political pressure to impose liability for
someone for these crimes.
○ The Crown, concerned about the lack of evidence, give Hare (a mass
murderer) immunity to provide evidence against MacDougall and Burke
while neither MacDougall nor Burke were entitled to give evidence in their
own trial.
○ Thus, because of a lack of evidence, Hare was let go despite the fact that
he committed multiple murders.
, General Concepts of Evidence
● Types of Evidence
○ Real Evidence
■ Something tangible (“a thing”)
● E.g., a gun in a murder trial.
■ In court, when a piece of real evidence is lodged and becomes
evidence in causa, it is referred to as “a label.”
○ Documentary Evidence
■ Something tangible which is contained in documentary form and
is produced for its content.
● E.g. a contract in a civil action for damages raised for breach
of contract, or a CD containing security footage in a criminal
action for theft.
■ In court, when a piece of documentary evidence is lodged and
becomes evidence in causa, it is referred to as “a production.”
○ Oral Evidence (or “Parole Evidence”)
■ Spoken testimony from a witness called to give evidence in court.
● E.g. the evidence given on oath in court by a witness who
allegedly saw an assault.
○ Affidavit Evidence
■ A sworn written statement which is accepted as a substitute for
oral evidence in some instances when lodged in causa.
● E.g. in an undefended civil action for divorce.
○ Agreed Evidence
■ This can be any form of evidence mentioned above where
parties to the action have opted to agree the provenance and
, identification of the evidence in question and state to the court
that certain facts are agreed by both parties and are not in
dispute.
● I.e. Where evidence came from (provenance) and what it is
(identification.)
■ This process is undertaken by parties in order to avoid wasting time
proving uncontroversial facts:
● E.g., The Crown and defense enter into a joint minute of
agreement at trial in order to establish that the drugs
recovered from the locus were forensically analyzed and
found to contain cocaine. This is uncontroversial in this case
as it is undisputed that the drugs in question were recovered
and forensically analyzed and found to contain cocaine.
Rather, the defense is alleging that the accused has no link
to the drug dealing enterprise which was the subject of the
police investigation.
● Join Minute of Agreement - This document will have a
section on (i) Identification (what the actual evidence is) and
(ii) Provenance (where the evidence came from) which is
agreed upon by both parties.
○ Judicial Notice/Knowledge
■ Refers to certain facts that are taken to be known by the court and
are beyond dispute.
○ Terminology Used in Court: Strictly speaking, any item of evidence
lodged in a court case (in causua) is a production.
■ A Label - Real Evidence
■ A Production - Documents.
■ Example: Fight on the Street
, ● Sam hears a noise from outside his street. He observes from
the window a fight between two men, one of whom is holding
a knife. The police attend and take a statement from Sam.
The Crown prosecutes one of them men.
● Facts in issue: whether the assault occurred with a knife.
● Evidence at Trial:
○ Sam gives evidence about what he witnessed → Oral
Evidence
○ The knife is produced in court → Real Evidence
○ The police statement is put to Sam on the basis of
prior inconsistency → Documentary Evidence
■ With this evidence, the court will determine
what facts have occurred on what basis.
● Direct & Indirect/Circumstantial Evidence
○ Direct Evidence
■ Evidence is direct when it points to a fact in issue before the court.
● E.g. a witness who gives evidence that they saw the
accused assault the complainer.
○ Indirect/Circumstantial Evidence
■ Indirect or circumstantial evidence is when evidence points to one
fact from which a court or jury may infer another fact in issue.
■ Normally this inference can be made only by combining a number
of pieces of circumstantial evidence.
● E.g., A neighbor who witnesses a bloodied individual fleeing
a scene. This is indirect evidence as it does not prove an
assault took place directly but in conjunction with other
evidence, it might prove that an assault did take place.
● Weight of Evidence
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