Evidence Law in Kenya

DRAFT COPY Charles Mwaura Kamau
Evidence Law in Kenya

By
Charles Mwaura Kamau LLB (HONS) LLM

All Rights Reserved.

Books by the same author:

1. Foundations of Kenya's Company Law with Cases and Materials. (Amazon)

2. Basic Principles of Criminal Litigation in Kenya (Amazon)

3. Wisdom of Ages: A survival guide to Wealth, Peace & Happiness (Amazon)

4. CHINA: Understanding the Country and its People ( E-book Available at Amazon)

5. Principles of Kenyan Constitutional Law, (forthcoming, LawAfrica Publishers)

6. Mastering English as a Second Language (Amazon)

7. The Art of Great Lawyers (Scribd)
Law of Evidence
Evidence law may be divided into three major categories:
(1) rules governing the substantive content of evidence,
(2) rules governing witnesses, and
(3) substitutes for evidence.
The Rules of Evidence apply to both criminal and civil cases.
Rules of evidence determine the admissibility of evidence, its weight, as well as the issue of credibility of witnesses.
NOTE
The Judge may analyse and dissect the evidence, but he may not either distort it or add to it.
General Principles of Evidence
A trial is a proceeding in which finding the truth may require an understanding of institutional practices with which many have little or no
dealing
1

In a criminal trial, the administration of justice according to law means justice for the People and for the accused, and the admission in evidence
of matters which either side wishes to produce must be decided by the same principles of law.
At a fundamental level, the rules of evidence have the function of identifying and defining the evidence a court may receive in order to arrive at
the truth of the matter or issue in dispute, whether in a civil or criminal case.
Meaning of Evidence
Evidence is the means of proving a fact. It becomes necessary to present evidence in a case when the pleadings filed present factual issues.

1
Park A Subject Matter Approach to Hearsay Reform (1987) 86 Michigan Law Review 51, 60-61.
Factual issues arise when a party specifically denies material allegations in the adverse party's pleading. In order for the judge to resolve such
contradicting allegations the parties have to present evidence favoring their allegations.
Thus, whether a certain thing exists or not, whether a certain act was done or not, whether a certain statement was uttered or not, are
questions of fact that require evidence for their resolution.
Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts. When questions of fact are not in
dispute either because all the factual allegations have been admitted expressly or impliedly, there is no need of conducting a trial, since there is
no need of presenting evidence anymore. Therefore the trial process is concerned mainly with the issue of production of evidence.
On the other hand, a question of law exists when the doubt or difference arises as to what the law is on a certain set of facts.
Legal issues are resolved by simply applying the law or rules applicable, or interpreting the law applicable considering the facts of the case.
Generally, no evidence need be presented on what the applicable law is. Everyone, including the judge, is presumed to know the law.
The study of the law on evidence involves two main problems, that is:
determining whether a given piece of evidence is admissible; and
the proper presentation of that evidence so that the court will consider it in resolving the issues and deciding the case
Burden of Proof on Preliminary Issues
As a general rule, the party offering evidence has the burden of persuasion on preliminary issues once an objection has been raised.
Paul Roberts and Adrian Zuckerman
2
tease out the matter as follows:
In cases where the relevance of a particular piece of evidence may be doubtful or contested it is incumbent upon counsel to make imaginative
arguments to persuade the judge that the evidence should be admitted. Counsel must seek to elaborate probative connections with other
evidence in the case and to frame the disputed evidence in contextual webs of meaning and significance for the fact finder. Evidence rejected on
one 'theory of relevance' (or 'story' about the disputed facts), may yet be admissible when re-presented as part of an alternative theory or story
that the judge finds more persuasive.

2
Criminal Evidence (2nd Edn, 2010).
Relevancy and materiality
To be admissible, evidence must be both relevant and material. Material evidence directly proves a fact in issue. Thus, the testimony of an
eyewitness to the commission of a crime is material; the evidence of motive or flight of the accused may be relevant. Evidence that is material
or relevant must also be competent to be admissible.
Relevancy describes the relationship between an item of evidence and the proposition it is offered to prove. In contrast, materiality
describes the relationship between that proposition and the issues in the case i.e., the consequential or material facts.
Admissibility

No matter how cogent particular evidence may seem to be, unless it comes within a class which is admissible, it is excluded.
3
In order to be
admissible the evidence must be legally relevant and not be subject to an exclusionary rule.
Further, for evidence to be admissible on the basis of relevance the court must first be satisfied that;
- the evidence bears a logical relationship to an issue in the case and,
- that in light of the other evidence in the case, it justifies the time and cost of its reception.
In other words, the evidence must have a probative value related to the facts at issue. The requirement that the probative value of the evidence
must relate to an issue before the court is sometimes referred to as the requirement of materiality.
Authority
Section 5 of Evidence Act holds that no evidence shall be given in any suit or proceeding except evidence of the existence or nonexistence of a
fact in issue, and of any other fact declared by any provision of the Act to be relevant.
NOTE

3
Lord Reid in Myers v DPP [1965] AC 1001, 1024.
It is not easy in all cases to readily draw the line of legal relevance; for instance the logical relevance of the evidence must also be balanced
against competing considerations affecting the efficiency and integrity of the judicial system, but confining the evidence to what is pertinent to
the issue is of great importance, not only as regards the individual case but also with reference to the expediency of the trial and keeping the
focus of the trial on the issues to be considered.
In its assessment of relevance the South African Law Reform Commission stated that legal relevance requires that the probative value of the
evidence outweigh any prejudice that may accrue as a result of its admission.
Prejudice in this context does not refer to the possibility of a finding of fact being made against a particular party; it refers to unfair prejudice
which includes not only procedural prejudice but also prejudice that arises out of the possibility of the fact finder being misled or unduly swayed
by a particular item of evidence.
4

Courts discretion
The judge has the responsibility for determining the admissibility of evidence. In determining relevancy, the judge must rely on law and logic as
informed by experience or science. The judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial,
having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted.
The general approach of the English courts to the use of discretion in excluding evidence in the interest of fairness to the accused has been set
out authoritatively in the following terms:
The principles of the laws of evidence are the same whether applied at civil or criminal trials, but they are not enforced with the same rigidity
against a person accused of a criminal offence as against a party to a civil action. There are exceptions to the law regulating the admissibility of
evidence which apply only to criminal trials, and which have acquired their force by the constant and invariable practice of judges when presiding
at criminal trials. They are rules of prudence ...
5

In Harris v. D.P.P. (1952)1 All E.R 1044.(H.L.) (Viscount Simon). Held that, the paramount duty of a judge, when trying a charge of crime is to set
the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused
NOTE

4
South African Law Reform Commission Discussion Paper 113 Review of the Law of Evidence (Hearsay and Relevance) (2009) at 17.
5
D.P.P. v. Christie, [1914] A.C. 545, at 564, 10 Cr. App. R. 141, at 164 (H.L.) (Lord Reading C.l.).
The concept of fairness ought to be central in relation to the power of a court to exclude evidence. The question, however, is what fairness
requires and how much weight it should carry in answering questions of admissibility.
6

The courts have the power to exclude evidence of little probative value but of gravely prejudicial effect, since it is the duty of the courts to
safeguard an accused person against the risk of wrongful conviction in consequence of the admission of such evidence.
REMEMBER
In an ideal world, it would be possible for the court to decide upon the relevance, and therefore the admissibility, of any particular piece of
evidence before it is led. But that will not always be possible. It may be that the court will have to hear the evidence before deciding that it
should be admitted. In this sense anything purporting to be evidence is therefore in some sense admissible.
Relevancy
Relevancy is the most pervasive concept in evidence law. It is the threshold issue for all evidence. If the evidence is not relevant, it is excluded.
Evidence led should be relevant to the issues in the case.
Stephens defines relevance as follows:
[Relevance connotes that] any two facts to which it is applied are so related to each other that according to the common course of events one
either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the
other
7

The first and most general of the primary Rules of Evidence is this, that the evidence given be confined to matters which are in dispute or under
investigation.
Relevant evidence is evidence that make the existence of a material fact more probable or less probable than it would be without the
evidence. (Preponderance of evidence).
For evidence to be relevant, it is not a must that it should have a direct bearing upon the proof of a crucial fact. Evidence that may assist in
establishing some other fact or issue from which an inference may be drawn is deemed relevant. So, for example, where a witness gives

6
See Colvin Conceptions of Fairness in the Criminal Process Available at http://www.isrcl.org/Papers/Colvin.pdf
7
James Fitzjames Stephen, A Digest of the Law of Evidence (12th Edn, 1948), Art 1
evidence, casting doubt upon the credibility of another witness this may be relevant, even though it has no direct bearing upon the facts of the
present charge.
Explanatory or introductory facts are also relevant. This consists of facts necessary to explain or introduce a fact in issue or relevant fact, or
which support or rebut an inference suggested by such a fact, or which establish the identity of any thing or person whose identity is relevant, or
fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was
transacted, are relevant in so far as they are necessary for that purpose.
8

Authority
Section 5 to section 16 of the Evidence Act sets out the parameters of relevance within which evidence may be admissible. This includes:
Facts forming part of the same transaction
Facts causing or caused by other facts
Facts relating to motive, preparation and conduct
Statements and actions referring to common intention
Facts inconsistent with, or affecting probability of, other facts
Facts affecting quantum of damages- this means In suits in which damages are claimed, any fact which will enable the court to
determine the amount of damages which ought to be awarded is relevant.
Facts affecting existence of right or custom
Facts showing state of mind or feeling- this includes, Facts showing the existence of any state of mind, such as intention, knowledge,
good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or
bodily feeling
Facts showing system- this means that when there is a question whether an act was accidental or intentional, or done with a particular
knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act
was concerned, is relevant.
Facts showing course of business
NOTE

8
Section 9 Evidence Act
Evidence may meet the relevancy standard but nevertheless be inadmissible because it fails to satisfy the requirements of some other provision
of the Rules of Evidence or it is excluded by Civil and Criminal Rules of Procedure, or by a constitutional provision (see for example confessions).
Therefore, while not all relevant evidence is admissible, evidence which is not relevant cannot be admissible
There is a difference between relevancy (admissibility) and sufficiency. Although the evidence as a whole must be sufficient each item of
evidence need only advance the inquiry.
Relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in
the case. It is therefore inadvisable for a judge to ask an objecting counsel why an offered piece of evidence is irrelevant or immaterial. By his
inquiry, he shows his unfamiliarity with the issues in the case.
Relevance and exclusionary rules of evidence

Relevance is a principle used to test admissibility in the law of evidence. Thus, the American writer Thayer stated:
There is a principle, not so much a rule of evidence as a proposition, involved in the very conception of a rational system of evidence which
forbids receiving anything irrelevant, not logically probative
9

Relevant and reliable evidence must always be admissible irrespective of its origin, because the object of a trial is to ascertain the facts in issue
and the evidence tendered assists in the ascertainment of the facts.
Nevertheless, relevance is not an absolute concept and it must take account of general experience.
NOTE
The issue of relevance as it pertains to the question of admissibility is more complex than determining whether a particular piece of evidence
should be admitted into the trial provided it is relevant in a general sense.
Thus, a piece of evidence may be relevant but may not be admitted as evidence because it does not attain the minimum threshold of cogency
which the law of evidence requires.
10
This is a question of law for a court (a judge or judges) and the decision is usually made both on

9
Thayer A Preliminary Treatise on Evidence at Common Law (1898) 265 at 271.
10
See Tapper Cross and Tapper on Evidence (9th ed Butterworths, 1999), at 56.
determining whether the evidence is relevant and whether it is subject to any applicable exclusionary rule. Thus, if the evidence cannot be
admitted because of an exclusionary rule, the issue of relevance is of little consequence as it will not satisfy the condition of legal admissibility.
11

Hearsay

the hearsay rule is an exception to the general principle in the law of evidence that all relevant evidence is admissible, and it applies to
testimony given by a witness concerning statements spoken or made by a person who is not produced in court as a witness if the testimony is
presented to prove the truth of the facts which they assert.
One of the longest established principles of the law of evidence is that, in order to be admissible, any proposed evidence must be relevant to the
issues being determined in a civil or criminal case; in other words, it must have what is called probative value, because the purpose of evidence
is to build up the necessary basis on which to provide proof of the issues in dispute in a civil or criminal case. Another key principle is that, in
general, evidence should be capable of being tested in court under oath, notably through cross-examination; so that if a specific piece of
evidence is not capable of being tested in this way, it is likely to be deemed inadmissible, even if it appears to be relevant, that is, has probative
value.
The law takes the view that truth is best ascertained by the unrehearsed answers, on oath or affirmation, of witnesses who have actually
perceived the relevant events and who are in the presence of the court. Thus it is desirable to have a person present in court where his evidence
can be tested by cross-examination and where his demeanour can be observed by the trier of fact.
a cardinal and, at times misunderstood aspect of the rule against hearsay that is that the rule does not exclude all out-of court statements, but
rather only those that are offered to prove the truth of their contents. A witness will, therefore, not be prevented from giving evidence about an
out-of-court statement if it is being introduced into proceedings merely to confirm that the statement was made or if its making is relevant to an
issue in the proceedings.
In some respects the hearsay rule involves the competing application of these two principles.

11
See Roberts and Zuckerman Criminal Evidence (Oxford University Press 2004) 97.
The hearsay rule is a general rule, subject to many exceptions, that testimony given by a witness concerning words spoken, statements made or
documents generated by a person who is not produced in court as a witness is inadmissible if the testimony is presented to prove the truth of
the facts which they assert.
The two main reasons given for this generally exclusionary approach are: the out-of-court statements cannot be tested by cross-examination
and they are not made under oath. In other words a witness must be available in court to be subjected to cross-examination.
12

NOTE
The principles underlying the exclusionary nature of the hearsay rule (notably, the inability to test such out-of-court statements by cross-
examination) apply equally to both civil and criminal proceedings
There are, however, a number of inclusionary exceptions to the hearsay rule, so that in some instances evidence may be admitted even where it
is not subjected to cross-examination.
An example of the application of the hearsay rule would be where a person wishes to testify in a criminal trial about a statement he overheard
being made by an untraceable person to the effect that the untraceable person said that she saw the accused fleeing the scene of the crime. If
this testimony is being presented to prove that the statement by the untraceable person is true, the hearsay rule states that this is inadmissible
as evidence.
13

In addition to this example of the application of the rule to testimony about verbal out-of-court statements, the hearsay rule also applies to
written out-of-court statements, such as letters or other types of documentary records where the originator of the document is not available to
testify in court as to its authenticity.
14

Scope of the Hearsay Rule

It is not always easy to draw a distinction between statements that fall within the ambit of the rule and those that fall outside it.
Oral Hearsay

12
See Morgan Hearsay Dangers and the Application of the Hearsay Concept
(1948) 62 Harvard Law Review. 177,
13
See the discussion of the English case R v Gibson (1887) 18 QBD 537
14
See for example Myers v DPP [1965] AC 1001
Spoken words as well as written statements may constitute hearsay depending on the purpose for which they are adduced in evidence.
15

Written and Documentary Hearsay
It is well-established that the hearsay rule applies not merely to oral statements but also to written and documentary statements. This clearly
covers an exceptionally wide range of important documents, including letters, medical records, business records and public records such as birth
and death certificates.
16

Statements by conduct
The exclusionary hearsay rule is also applicable to signs, gestures, drawings, charts and photographs. Each of these statements is identifiable
as being hearsay in nature. However, there is much less certainty as to whether the hearsay rule applies or should apply to statements or non-
verbal conduct which are not intended by their maker to assert that they are tendered to prove.
17

Assertions
An implied assertion is a statement by conduct that is not tendered to prove the truth of its contents but is taken to allow an inference to be
drawn from it. Where a statement by conduct is intended to assert the truth of a fact, it is clear that this is, in general, inadmissible under the
hearsay rule. However, a more difficult issue is whether, and to what extent, the hearsay rule applies to statements by conduct where they are
not tendered to prove the truth of the contents but are tendered for the purpose of allowing the judge or jury to draw an inference from the
contents of the statement.
18

Exceptions
The exceptions to the hearsay rule have the effect that certain out-of-court statements are deemed admissible.
The numerous exceptions to the hearsay rule are unsatisfactory in several respects. In many instances it is difficult to see why they apply to the
extent that they do. Therefore it is worth noting from the onset that, there is no overarching principle or justification to determine why the

15
See R v Gibson (1887) 18 QBD 537.
16
See Myers v DPP [1965] AC 1001.
17
See Wright v. Doe d. Tatham (1838) 7 Eng. Rep. 559.
18
See Wright v Doe d. Tatham (1838) 7 Eng. Rep. 559. Also see R v Kearley. [1992] 2 AC 228. See also criticism of Kearly case by Roberts and Zuckerman
Criminal Evidence (Oxford, OUP, 2004) at 590.
exceptions have been created. Indeed, it appears that many of the exceptions came into being as the need arose when the hearsay rule itself
proved inconvenient in a particular case.
Inclusionary Exceptions to the Hearsay Rule
This include admissions and confessions; spontaneous statements connected with the subject matter of the case (the res gestae rule); dying
declarations (admissible only in a murder and manslaughter case); certain statements of persons since deceased (including statements by
testators concerning the contents of their wills); public documents; and certain statements made in previous proceedings.
Admissions and confessions
One the most important, and oldest, exceptions to the hearsay rule concerns admissions and confessions. In a strict sense, the words
admission and confession are slightly different in meaning. The evidence act defines an admission as a statement, oral or documentary,
which suggests any inference as to a fact in issue or relevant fact.
Confessions are defined as words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with
other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.
19

In a criminal trial an admission or confession is regarded with unease because it often arises during police interrogation. The law therefore has
developed many specific rules concerning the admissibility of admissions and confessions.
Assuming compliance with these admissibility rules, the rationale for allowing the admission of a self-incriminating statement, in terms of being
an inclusionary exception to the hearsay rule, is that it is fairly presumed that no man would make such a confession against himself if the facts
confessed were not true
20

Authority
The rules relating to admissions can be found from section 17 to section 25 of the Evidence Act. The rules relating to confessions are found from
section 25 to section32 of the Evidence Act.
Spontaneous statements connected with the subject matter of the case (the res gestae rule)

19
Section 25 of the Evidence Act.
20
See Grose J in R v Lambe (1791) 2 Leach 552, at 555
The phrase res gestae (literally, things done) refers to the inclusionary exception by which a party is allowed to admit evidence which consists
of, among other things, everything that is said and done in the course of an incident or transaction that is the subject of a civil or criminal trial.
The res gestae exception is based on the view that, because certain statements are made spontaneously in the course of an event, they carry a
high degree of credibility.
Lord Normand in the UK Privy Council case Teper v R [1952] AC 480, at 486-487 had the following to say in regard to the issue:
The rule against the admission of hearsay evidence is fundamental... Nevertheless, the rule admits of certain carefully safeguarded and limited
exceptions, one of which is that words may be proved when they form part of the res gestae It appears to rest ultimately on two propositions,
that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the
significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede
the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been
precisely formulated in a general principle. Their Lordships will not attempt to arrive at a general formula, nor is it necessary to review all of the
considerable number of cases cited in the argument. This, at least, may be said, that it is essential that the words sought to be proved by hearsay
should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place and circumstances,
that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement.
Despite its long-established position in the law of evidence, the res gestae inclusionary exception has attracted some criticism. In the English
case Holmes v Newman [1931] 2 Ch 112 the phrase res gestae was criticised because it provides a respectable legal cloak for a variety of cases
to which no formulae of precision can be applied. Likewise, in R v Ratten [1972] AC 378 it was said that the expression res gestae is often used
to cover situations that have been insufficiently analysed.
21

Dying Declarations
A dying declaration, made with the knowledge of the imminence of death, is another important inclusionary exception because it may be
admitted to prove the circumstances in which the death occurred. Traditionally, the dying declaration inclusionary exception has never been
applied to civil claims; and, in criminal proceedings, it only applies to charges of murder and manslaughter.
The rule has its origins In the English case R v Woodcock, (1789) 168 ER 352 where the defendant had been charged with murder. The victim had
been badly beaten and, two days prior to her death, which occurred from the beating, she told a magistrate that her husband, the defendant,

21
See also Cowen and Carter Essays on the Law of Evidence (1956) 4.
was the perpetrator. The trial court, faced with the difficulty that hearsay was available but the witness was not, surmounted this by developing
the dying declaration exception to the hearsay rule. The Court stated:
[T]he general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the
point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most
powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that
which is created by a positive oath administered in a Court of Justice.
As is evident from this passage in R v. Woodcock, the belief was that these statements were, by their very nature, trustworthy since persons
were beyond the hope of recovery and were in fear of eternal punishment if they lied. Thus the law of dying declarations is based on the view
that the imminence of death is a substitute for the oath.
(4) Certain statements of persons now deceased
The common law also relaxed the hearsay rule for certain prior statements of persons who had died by the time civil or criminal proceedings
came to trial. There is no general test for admitting the hearsay statements of persons now deceased. Instead exceptions developed on an ad
hoc basis and were confined to specific situations. These are:
Declarations by deceased persons against a pecuniary or proprietary interest,
Written declarations by the deceased in the course of duty,
Declarations by a deceased person relating to pedigree (in effect, blood relationships),
Declarations by a deceased person explaining the contents of his or her will.
(5) Public documents
This exception is clearly based on both reliability and convenience. One of the leading English cases on this is the UK House of Lords decision
Sturla v Freccia (1880) 5 App Cas 623 in which the exception was described as applying to a document that is made by a public officer for the
purpose of the public making use of it and being able to refer to it.
The following passage from the judgment
of Lord Blackburn has often been cited with approval:
I do not think that public there is to be taken in the sense of meaning the whole world... an entry probably in a corporation book concerning a
corporate matter, or something in which all the corporation is concerned, would be public within that sense. But it must be a public document,
and it must be made by a public officer. I understand a public document there to mean a document that is made for the purpose of the public
making use of it, and being able to refer to it.
Typical examples therefore include certificates of birth, marriages and death and ordnance survey maps. It is likely that the public official who
made the original entries in question may be dead, unavailable or unable to remember the facts recorded in a later court hearing, so it is clear
that the rule was developed primarily on the basis of convenience. Equally, such documents can be presumed reliable, but of course it remains
possible for parties to challenge the facts contained in them.
Testimony in Former Proceedings
A statement made by a person while giving evidence, whether orally or by affidavit, is admissible in subsequent proceedings, between the same
parties concerning the same (or substantially same) subject matter if the witness is unavailable to give evidence. This constitutes an exception to
the hearsay rule because the circumstances in which the statement was made address the concerns underlying the hearsay rule the statement
was made under oath and the party against whom the statement was made had an opportunity to cross-examine the witness. The requirement
of unavailability is met if the witness is dead, is too ill to attend court, has been prevented from attending by the party against whom the
evidence is to be admitted, is outside of the jurisdiction or cannot be located following intensive enquires.
NOTE
The use of hearsay may in some instances fail to comply with the constitutional right to fair procedures.
Primary and secondary evidence

Primary Evidence
This is the authentic document or item that is offered as proof in a lawsuit, as contrasted with a copy of, or substitute for, the original. Primary
evidence, more commonly known as best evidence, is the best available substantiation of the existence of an object because it is the actual item.
It differs from secondary evidence, which is a copy of, or substitute for, the original. If primary evidence is available to a party, that person must
offer it as evidence. When, however, primary evidence is unavailablefor example, through loss or destructionthrough no fault of the party,
he or she may present a reliable substitute for it, once its unavailability is sufficiently established.
Secondary evidence is evidence that has been reproduced from an original document or substituted for an original item. For example, a
photocopy of a document or photograph would be considered secondary evidence.
Courts prefer original, or primary, evidence. They try to avoid using secondary evidence wherever possible. This approach is called the best
evidence rule.
Witnesses
The existence of a lynx-eyed Judge who is capable at a glance of ascertaining whether a witness is telling the truth or not is more common in
works of fiction than in fact on the Bench.
22

The Best Evidence Rule
Best evidence rule
This is a rule of evidence that demands that the original of any document, photograph, or recording be used as evidence at trial, rather than a
copy. A copy will be allowed into evidence only if the original is unavailable.
The rule comes into play only when (a) the content of the writing, recording or photograph is itself the thing a party is trying to prove, or (b) a
party is trying to prove a matter by using a writing, recording or photograph as evidence of it.
An example of (a) would be where the party is trying to testify to the terms of a written contract. The contract itself would be the best evidence,
and the original would need to be produced.
An example of (b) would be where the witness is testifying about the a claim based on an invoice that shows the items purchased, dates of
purchase and prices. The original invoice would itself establish the claim and would be the best evidence of the transaction.
The rule would not apply to the following situations:

22
Per Atkin LJ in Socit d'Avances Commerciales (Socite Anonyme Egyptienne) v Merchants Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140, at 152
A witness may testify that a document exists without producing the original, but any testimony about the documents content will require
production of the original.
REMEMBER
A witness may testify on personal knowledge about a matter even if there is a writing, recording or photograph that documents the same thing,
and the writing, recording or photograph need not be produced in such an event; but you must produce the original if you are trying to prove its
content.
Just because a document is original does not mean that it admissible. The document or recording must still meet authentication and hearsay
objections, and a foundation must be laid for admission of the photograph.
Exceptions
-Where the original document is lost or destructed
-where, original not obtainable or
-where original is in possession of an opponent

The so-called "best evidence rule" says that the highest possible degree of proof must be produced. A central concern of the law of evidence is
to ensure that unreliable categories of evidence are not used to resolve disputes and that the evidence adduced must be the best evidence
available.
The insistence on the production of the best evidence is a way of preventing the danger of weaker proofs being substituted for stronger ones.
In other words, primary evidence should take preeminence over secondary evidence.
Secondary evidence in essence is all that evidence which is inferior in its origin to primary evidence (i.e., not the best evidence). That does not
mean secondary evidence is always in error, but there is a greater chance of error. A copy of an original record provides secondary evidence, as
does oral testimony of the record's contents.
Classifying evidence as either primary or secondary does not tell us anything about its accuracy or its ultimate value. This is especially true of
secondary evidence. Thus it is always a good idea to ask the following questions:
1. How far removed from the original is it (when it is a copy)?
2. What was the reason for the creation of the source which contains this evidence?
3. Who was responsible for creating this secondary evidence and what interest did he have in its accuracy?
Documentary Evidence
There is no definite interpretation of what a document is in the Kenyan Evidence Act. However, under Section 3(1) of Interpretation and
General Provision Act (Cap 2) a document includes:
any publication and any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one
of three means which is intended to be used or may be used for the purpose of recording that matter. It may be any communication in
permanent form.
Under section 79(1) the following documents are public documents:
Documents forming the Act or records of the Acts
of the sovereign authority; or
of official bodies or of tribunals ; or
public officers, legislative, judicial or executive whether of Kenya or any other country ;
Public records kept in Kenya of private documents
If the documents doesnt fall within the list of documents found in sec 79 (1a) and (b) which lists public documents then it a private document.
Authority
Tootal Broadcast Lee Co. Ltd v Alimohamed Haji Ahmed and Sons Ltd (1957) 24 KLR (2) 31
One of the questions considered was in fact, a public document so that the rules regarding admission of certified copies applied.
The court held:
The documents on which the plaintiffs rely on purport to be copies of the registration certificates issued in respect of each design by the
controller general of Patents and Designs under the authority of Law (Sec 18 Registered Designs Act 1949 which reproduces Sec 57 of the
Patents and Designs Act 1947) It seems to me, therefore, that the certificates of registration being a document issued by authority of Law by a
public officer must necessarily be a public document.
The court then went on to discuss questions of admissibility .Subsection 79 (i) (b) states that public records of private documents kept in Kenya
are Public documents. The fact that a document is registered doesnt make the document itself a public document; only the record of
registration in a public office.
Sec 80-81 of Evidence Act deals with the issue of public documents.
NOTE
The distinction between public and private documents is important because of the differences in the rules governing admissibility and the
procedures to be followed.

Proof
Proof typically comes in the form of witness testimony testimonial proof.
Proof may also consist of documentary evidence (e.g., written contract) or real evidence (e.g., murder weapon). Photographs, models,
blackboards, and charts may be used to illustrate testimony demonstrative evidence
Direct and circumstantial evidence
Evidence may be direct evidence of a crucial fact (W saw A stab V). Or it may be circumstantial evidence , tending to establish some fact which
is not in itself essential to the offence but from which an inference may be drawn as to the likelihood of the existence of a crucial fact (a bloody
knife is found in A's dustbin). There is no necessary correlation between the strength of evidence and whether or not it is analysed as direct or
circumstantial: a mass of evidence showing the blood-stained accused running from the scene of the crime and speaking to his earlier threats of
violence against the victim may be more compelling than a single witness who speaks to having seen the stabbing from some distance away.
Direct and Circumstantial Evidence
There are two types of evidence which may be used to determine the facts of a case: direct evidence and circumstantial evidence.
Example:
Suppose a man comes inside the building you are in and says to you, I just saw that it is raining outside. This is direct evidence of the fact that
it was raining when the man was outside. Now suppose that the man comes in and is holding a wet umbrella, and has water droplets on his
clothes. This is circumstantial evidence that it was raining when the man was outside. It requires you to make an inference from the facts (the
wet umbrella and the water on his coat) that it was raining.
The law allows either type of proof in a criminal trial.
For every item of evidence, direct or circumstantial, it is important to distinguish between two different probabilities:
(1) the probability that the defendant is guilty if the evidence is true- this probability measures the probative value of an item of evidence. If
conditions allowed the eyewitness to accurately identify the defendant as the murderer, how probable does that make the defendants guilt?
(2) the probability that the evidence is true- this probability measures the reliability of an item of evidencewhether viewing conditions did, in
fact, allow the eyewitness to see the defendant commit the murder.
NOTE
The overall probative value of an item of evidence depends, at least in part, on its reliability: if the evidence is less than completely reliable, its
probative value is reduced.
23

Direct evidence
This is where a witness testifies directly about the fact that is to be proved, based on what he claims to have seen or heard or felt with his own
senses, and the only question is whether the court believes the witness.

23
Kevin Jon Heller, the cognitive psychology of circumstantial evidence, Michigan Law Review [Vol. 105:241
The category of direct evidence thus includes eyewitness identifications and confessions.
Circumstantial evidence:

This is where the court is presented with evidence of other facts and then asked to draw reasonable conclusions from the information and facts
provided. For example, a witness might say that she saw X run from the market carrying something in his hand with blood in his yellow shirt.
Another witness claims that the person who had stubbed the victim had a yellow shirt, even though the witness is not able to positively identify
the attacker. If the witnesses are to be believed, one might conclude that it was the accused who had stubbed the victim, even though the
evidence no one actually saw him stub the victim.
This evidence includes all forensic evidence, such as blood or fingerprints, as well as non-forensic evidence that does not by itself prove the
defendants guilt. The category of circumstantial evidence also includes all other evidence, testimonial or non-testimonial, that relies on
inference to prove the defendants guilt: real evidence, like the gun used in the crime or a shirt stained with the victims blood; partial
eyewitness identifications testimony about motive; and so on.
Classical Jewish law was profoundly skeptical of circumstantial evidence. For example in the Babylonian TalmudSanhedrin 235
24
the following
passage appears:
He[, the Judge,] says to them: Perhaps ye saw him running after his fellow into a ruin, ye pursued him, and found him sword in hand with blood
dripping from it, whilst the murdered man was writhing [in agony]: If this is what ye saw, ye saw nothing.
Such evidence was per se inadmissible in a criminal case; to convict, direct evidence of the defendants guiltspecifically, the testimony of two
witnesses who saw the defendant commit the crimewas required. The rationale for the rule, according to Talmudic scholars, was the need to
protect the innocent from unjust conviction: because of its probabilistic nature, not even the strongest circumstantial evidence could completely
prove the defendants guilt.
25
Maimonides explained as follows:
Do not let this puzzle you, or think the law unjust. For among events which are within the bounds of possibility, some are very probable and
others highly improbable, and still others are in between the two . . . . If we do not give judgment even on the basis of a very strong presumption,

24
(I. Epstein ed., Jacob Shachter trans., Soncino Press 1935)
25
See Irene Merker Rosenberg & Yale L. Rosenberg, Perhaps What Ye Say is Based Only on ConjectureCircumstantial Evidence, Then and Now, 31 Hous. L.
Rev. 1371, 1378 (1995).
the worst that can happen is that the sinner will be acquitted; but if we punish on the strength of presumptions and suppositions, it may be that
one day we shall put to death an innocent person; and it is better and more satisfactory to acquit a thousand guilty persons than to put a single
innocent man to death . . . .
26

Modern Anglo-American law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Either
type of evidence may be enough to establish guilt beyond a reasonable doubt, depending on the facts of the case.
Wigmore for example says that it is out of the question to make a general assertion ascribing greater weight to one class or to the other.
27

There are two things to keep in mind about circumstantial evidence:
The first one is that inferences and conclusions may be drawn only from facts that have been proved.
The second rule is that any inferences or conclusions which are drawn must be reasonable and natural, based on common sense and experience
of life. In a chain of circumstantial evidence, it is not required that every one of the inferences and conclusions be inevitable, but it is required
that each of them be reasonable, that they all be consistent with one another, and that together they establish the defendants guilt beyond a
reasonable doubt. In other words, the evidence must not only be consistent with the defendants guilt, it must be inconsistent with his
innocence.
Corroborative evidence
In Kenya he evidence Act does not define corroboration. However, Corroboration is evidence tending to confirm some fact of which other
evidence is given.
Obviously the more corroboration is present, the easier it is to prove a fact. In Director of
Public Prosecution v Kilbourne [1973] A.C. 729 Lord Simon stated:

26
2 The Commandments 270 (Charles B. Chavel trans., Soncino Press 1967).
27
1 John Henry Wigmore, Evidence 26, at 401 (3d ed. 1940). See also Holland v. United States 348 U.S. 121, 140 (1954).
Corroboration is therefore nothing other than evidence which confirms or supports or strengthens other evidence... It is, in short, evidence
which renders other evidence more probable.
A typical example would be a case of witness testimony evidence. One witness testifies she saw the accused leaving the crime scene, but her
testimony, by itself, may not be all that strong as evidence. However, when a second witness testifies independently, saying that he also saw the
accused leaving the crime scene, this new evidence corroborates the testimony of the first witness, making it stronger as evidence.
Corroborative evidence does not always have to be testimonial. It can sometimes be circumstantial.
Therefore, evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with
the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence
that the crime has been committed, but also that the accused committed it.
Corroboration as a matter of law
Offence of procuration; (S.47 48 Penal Code) for prostitution and other immoral purposes; Prostitution is not an offence but procuration and
leaving off benefits of prostitutions. Since the offences of procuration are easily alleged and difficult to refute, a person shall not be convicted of
such an offence upon the evidence of one witness only. That evidence has to be corroborated in some material particular which implicates the
accused Section 147 of the Penal Code. Under S. 148 which provides for procuration of defilement by threat or fraud or administering drugs,
a person shall not be convicted upon the witness of one person only.
Speeding: Section 43(3) of Traffic Act provides that a person charged under the section shall not be liable to be convicted solely on the evidence
of one witness to the effect that in the opinion of the one witness, the person charged was driving the vehicle as such great speed. It is required
that the evidence should relate to the speed of the vehicle at the same place and time
Perjury: Under Section 111 of Penal Code a person cannot be convicted of committing perjury or subornation of perjury solely upon the
evidence of one witness. It is not just in judicial proceedings but also where person makes false statements on oath. The corroboration need
only relate to the falsity of the statement in question.
Treason: under sectin 42 (2) No person charged with treason or any such felony may be convicted except on his own plea of guilty or on the
evidence in open court of two witnesses at least to one to one overt act of the kind of treason or felony charged or alleged or the evidence to
one witness to one overt act or one other witness to one overt act of treason or the same kind of felony.
Children: under Section 124 of the Evidence Act as amended by Act No 3 of 2006 evidence given by a child must be corroborated.
Corroboration as a matter of Practice
Accomplices
In Davies v. D.P.P. the House of Lords made it clear that:
In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn (himself)
that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated.
In considering whether a case has been made out the judge ought to take into account all the circumstances of the particular case-including, but
not limited to, the strength of the other evidence against the accused.

This rule, although a rule of practice, now has the force of a rule of law.
The passage which has been quoted above refers specifically to an accomplice giving evidence on behalf of the prosecution but one of two co-
accused may incriminate the other when giving evidence on his own behalf.
An accomplice warning should be given in both cases, when a co-accuseds evidence incriminates the accused.
The test of incrimination is whether the co-accuseds evidence, or any part of it, undermines the defence being advanced, or tends to establish
or support the prosecution's case.
Authority:
In Wilson Kinyua & Another V. R (1980) KLR in the case the Appellant and another person were charged with murder. Kinyua denied
involvement but the second appellant confessed to his guilt and stated that Wilson Kinyua was also involved. At the trial, the second Appellant
objected to the admission of the confession after a trial within a trial the 2
nd
Appellant confession was admitted even though the maker had
disowned it earlier. Kinyua was convicted on the basis of the confession even though the trial court did not get corroboration for the
confession. On Appeal, the court held that the 2
nd
Appellant confession was accomplice evidence which needed corroboration. The court went
on to say that repudiated confessions should not form the basis of conviction without corroboration.
In Davies v. Director of Public Prosecutions [1954] AC 378 Lord Simonds LC said that the rule applied only to witnesses for the prosecution and
that their Lordships were not concerned with the proper procedure as to warning and the like where one defendant gives evidence implicating
another.
In principle there is no reason for distinguishing between the two cases.
Rationale of the Accomplice Rule
These include:-
Even if a person is certain to be found guilty he may seek the avoidance or reduction of his punishment as a reward, not on the ground that his
role in the crime was a minor one (it may not be) but for enabling the crime to be brought home against the other criminals; and he may be
tempted to curry favour with the prosecution by painting their guilt more blackly than it deserves.
A person may wish to suggest his innocence or minor participation by transferring the blame to others;
If a person is informed against by an innocent witness he might (out of spite and revenge) accuse the informer of in fact taking part in the crime;
NOTE
A person is an accomplice if he is liable to prosecution in connection with the commission of the same offence as the principal offender.
Sexual offences
The rule is that in cases where the accused is charged with a sexual offence, the jury should be directed that it is not safe to convict upon the
uncorroborated testimony of the complainant but that if they are satisfied of the truth of such evidence, they may after paying attention to that
warning nevertheless convict. The corroboration requirement in sexual offences stems from the fact that the charge is easy to make and
difficult to refute.
Authority:
Margaret V. R (1976) KLR 267 it was held that though it is not a rule of law that a person charged with a sexual offence cannot be convicted on
the uncorroborated evidence of a complainant, it has long been the custom to look for and require corroboration before a conviction for such an
offence is recorded.

NOTE
while evidence as to DNA is certainly real evidence , and may establish beyond any reasonable doubt that a particular person has been at a
particular place, or associated in some way with a particular person, it is still circumstantial, in the sense that it cannot by itself establish what he
did when he was there.

Evidence of bad character
similar fact evidence
In general terms evidence that the accused has, before or after the facts alleged in the instant charge, acted in a similar way to that charged
BEST EVIDENCE RULE
The Best Evidence Rule is applicable only to documents. When the subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original writing itself. If a writing is offered not to prove its contents but to prove some other fact, e.g., that the writing
exists, or that it is done on sheepskin, or the size of the paper it is written on, it is, for purposes of evidence, only object evidence. To determine
the admissibility of object evidence, the best evidence rule does not apply. Hence, the original writing need not be presented.
The existence or condition of that writing may be proved, at once, by any other evidence, like oral testimony.
The Parole Evidence Rule applies only to contractual documents.


Judicial Notice
Not everything alleged in a party's pleading is required to be proved.
Certain matters may be so well known to the court that to compel a party to prove it would be a waste of time and effort.
Courts may take judicial notice of matters which are: (a) of public knowledge, (b) capable of unquestionable demonstration, or (c) ought to
be known to judges because of their official functions.
Oral evidence

One question often asked is whether a witness may be allowed to testify by narration. While the general rule is that material and relevant
facts are elicited from a witness by questions put to him, it still rests within the sound discretion of the trial judge to determine whether a
witness will be required to testify by question and answer, or will be permitted to testify in narrative form.
"There is no legal principle which prevents a witness from giving his testimony in narrative form if he is requested to do so by counsel. A
witness may be allowed to testify by narration if it would be the best way of getting at what he knew or could state concerning the matter at
issue. It would expedite the trial and would perhaps furnish the court a clearer understanding of the matters related as they occurred.
Moreover, narrative testimony may be allowed if material parts of his evidence cannot be easily obtained through piecemeal testimonies.
But if in giving such testimony, the witness states matters irrelevant or immaterial or incompetent, it is the right and duty of counsel
objecting to such testimony to interpose and arrest the narration by calling the attention of the court particularly to the objectionable
matter and, by a motion to strike it out, obtain a ruling of the court excluding such testimony from the case.
Opinion Evidence
The opinion rule remains one of the chief exclusionary rules of evidence today and provides that witness testimony in the form of opinion or
inference is inadmissible in both civil and criminal proceedings, and witnesses are confined to giving evidence of facts.
It is a long standing rule of our law of evidence that, with certain exceptions, a witness may not express an opinion as to a fact in issue...It is for
the tribunal of fact judge or jury as the case may be to draw inferences of fact, form opinions and come to conclusions.
The opinion of an ordinary witness is thus seen as having no useful bearing on the case. The rationale is that the rule ensures that possible
hazards such as, prejudice, faulty reasoning and inadequate knowledge, which might be introduced if a witness were allowed to give opinion
evidence, are avoided.
Expert witness

A key element of the law of evidence as it applies in courts is that witnesses are generally allowed to give only relevant and factual evidence;
they are not permitted to express their opinion on their evidence. For example, if a person saw X hitting Y who consequently dies, she could give
evidence in court about what happened but would not be permitted to give an opinion about whether, for example, it was the blow that caused
death. That opinion can only be given by an expert pathologist.
Therefore, even though the ultimate issue, whether of criminal or civil liability, is a matter for a court to decide, not for any witness. In a criminal
trial the ultimate issue of innocence or guilt may turn on a complex technical issue such as DNA evidence, mobile phone tracing evidence, or the
interpretation of medical evidence.
Therefore, the admissibility of expert evidence is the principal exception to the rule prohibiting opinion evidence. Thus, an opinion may be given
by a witness who has expertise in a particular area that is relevant to the issue at hand. The purpose of this exception is that such evidence
provides the judges with the necessary specialist criteria for testing the accuracy of their conclusions, and enables them to form their own
independent judgment by applying these criteria to the facts proven in evidence.
In order to adduce expert evidence, the party will need to prove that the evidence is needed in the circumstances and that the person in
question is suitable to give expert evidence on the issue. The burden of proof of expertise rests on the party wishing to adduce the witness in
evidence. t is ultimately the decision of the court to allow evidence of experts. The two main requirements that a party must satisfy in order to
be permitted to adduce expert evidence in court are;
It must be shown that the expert evidence is necessary and relevant in the circumstances
It must be established that the witness is a qualified expert

Authority
Buckley v Rice Thomas (1554) Plowden 124; 75 ER 182 Saunders J
If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns.
Which is an honourable and commendable thing in our law, for thereby it appears that we do not despise all other sciences but our own, but we
approve of them and encourage them as things worthy of commendation.
28
Folkes v Chadd(1782) 3 Douglas 157 is regarded as the seminal precedent that established the admissibility of expert testimony and confirmed
that expert witnesses could testify directly as a witness for either party.
Dangers of opinion evidence
In Modern law courts most opinion experts have become Guns for hire. Thus it is not uncommon to find experts tailoring their opinion to fit
with the interests of the highest bidder.
Severn, King and Company v Imperial Insurance Company 1820 illustrates the types of problems that could arise with expert testimony, such as
conflicting opinion of experts.
In that case the plaintiffs sugar factory had been destroyed by fire and they took a civil case against the defendant insurance company to
recover their losses when the company refused to pay out compensation.
The defendants argued that they were entitled to refuse to pay out as their contract with the plaintiffs had been rendered void by the fact that
the plaintiffs had, without informing t he insurance company, introduced a new method of sugar purification three months prior to the fire, and
that this method was considerably more dangerous than the previous method used.
At trial, the case essentially consisted of conflicting evidence from a torrent of distinguished men of science on either side testifying as to the
dangers involved in the different methods of sugar refining, arguments backed up with contradictory definitions, observations and experiments
and conflicting evidence.
According to Dallas CJ:

28
Holdsworth A History of English Law Vol. 10 (2nd ed Methuen & Co Ltd 1945) at 212.

[the experts] left the court in a state of utter uncertainty; and the two days during which the results of their experiments had been brought into
comparison, were days not of triumph, but of humiliation to science.
Similar criticisms were made about the practice of shopping for partisan or biased experts by Jessell LJ in Thorn v Worthing Skating Rink Co:
A man may go, and does sometimes, to a half-a dozen experts. I have known it in cases of valuation within my own experience at the Bar. He
takes their honest opinions, he finds three in favour and three against him; he says to the three in his favour, will you be kind enough to give
evidence?
In short, in many cases the expert, instead of playing the independent and impartial role has become ... a very effective weapon in the parties'
arsenal of tactics.
29

different categories of evidence that can be given by expert witnesses
30

i)Expert evidence of opinion, based on facts that have been adduced before the court.
ii)Expert evidence to explain technical or complex subject areas or the meaning of technical terminology.
iii)Expert evidence of fact, on an issue that requires expertise to fully comprehend observe and describe.
iv)Expert evidence of fact, on an issue that does not require expertise in order to fully observe, comprehend and describe, but which is a
necessary preliminaryto the giving of evidence in the other four categories.
v)Admissible hearsay of a specialist nature.
NOTE
These categories however undoubtedly overlap and evidence sought to be given in a particular case may easily fit into a number of different
categories.

29
Lord Woolf, Access to Justice, Interim Report (1995) and Lord Woolf, Access to Justice, Final Report (1996)

30
Hodgkinson & James Expert Evidence: Law and Practice (2 nd ed Sweet & Maxwell 2007)

Ultimately whether the court will admit expert evidence will depend on the particular issues which a party seeks to prove, and whether or not
proof of these issues would be assisted by expert evidence. However, if the issue is one on which the finder of fact is qualified and capable of
forming a sound opinion, no expert evidence will be permitted as additional expertise will essentially be superfluous.
Persons regularly called as experts are those in the medical field psychologists who are often called togive an opinion on the mental state of an
individual. Pathologists and handwriting experts.
Other growing areas of expertise include forensic accounting and computer analysis to tackle the rise in fraud cases, engineering, actuary,
insurance, handwriting comparison and recognition, accident investigation, facial mapping and identification, DNA, blood, urine, blood-alcohol
and drug-testing, educational issues, Expert witnesses are also frequently called in patent cases, Expert evidence will be required in order to
explain and prove foreign law. Technical or Scientific Terminology
Expert evidence will also often be given by individuals well versed and well qualified to give a detailed account of the normal practices and
procedures of a particular skill, trade or profession.
Where experts have been appointed to give opinion evidence about particularly technical or scientific concepts, they may be required to give a
great deal of factual background about the complex concepts on which they base their opinion.
in R v Abadom
31
Kerr L.J. referred to this practical reality and expressed the view that:
it is no more than a statement of the obvious that, in reaching their conclusion, [experts] must been titled to draw on material produced by
others in the field in which their expertise lie...once the primary facts on which their opinion is based have been proved by admissible evidence,
they are entitled to draw on the work of others as part of the process of arriving at their conclusions. An expert can ground or fortify his or her
opinion by referring to works of authority, learned articles, recognised reference norms and other similar material as comprising part of the
general body of knowledge falling within the field of expertise of the expert in question.
In R v Turner[1975] Q.B. 834.
Lawton LJ

31
[1983] 1 W.L.R. 126.

If, on the proven facts, a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case,
if it is dressed up in scientific jargon it may make the judgment more difficult. The fact that an expert witness has impressive scientific
qualifications does not by that fact alone make his opinion any more helpful than that of the jurors themselves; but there is a danger that they
may think it does, common knowledge matters and matters of human nature and behaviour within the limits of normality are not susceptible to
expert evidence.
In borderline cases the court may decide to allow expert evidence where it is unsure if it can make a sound or fully informed decision without it.
REMEMBER
In the law of evidence, the main exception to the rule against allowing a witness to given opinion evidence is that an opinion can be given by an
expert in an area of expertise outside the scope of knowledge of the court, in particular the finder of fact.
In reaching a conclusion, the expert is permitted to rely on prior studies, statistics and research, academic literature and works of reference in
their field of expertise. This has been termed non-specific hearsay.

Evidence of Bad Character
Similar fact evidence
This is Evidence to show that a party, especially the accused, has on previous occasions misconducted himself in a way similar to the misconduct
being alleged against him in the proceedings before the court. The evidence frequently takes the form of a previous conviction. In general, the
prosecution may not offer similar-fact evidence as part of its case unless it can be shown to be relevant to an issue before the jury, for example
by rebutting some defence advanced by the accused.
The similar facts rule imposes ethical constraints on deliberation at a trial. In criminal cases, it protects the integrity of a guilty verdict by
forbidding the fact-finder from reasoning that the accused is guilty because his past shows that he is the sort of person who cannot help
committing the kind of crime in question.
It can be used only indirectly, as evidence of his motivational disposition, to support an explanation of his action that is already suggested by
other sufficiently strong evidence.

Illegally obtained evidence
This is evidence which is obtained by means or acts which are illegal or against the law. For example, evidence obtained in violation of the
constitution and in breach of other statutes.
A common way in which evidence is obtained illegally is through illegal searches and illegal seizures e.g. breaking into somebodys house and
obtaining evidence, through deception, threats, bribes inducement or trickery.
The principles governing the admissibility of illegally-obtained evidence are based on conflicting policy objectives:
The first objective was underlined in the classic judgment of Holmes J., a dissent from the majority view of the United States Supreme Court,
which held that the use in evidence of private telephone conversations obtained by wiretapping did not infringe the fourth and fifth
amendments to the American Constitution:
We must consider the two objects of desire both of which we cannot have and make up our minds which to choose. It is desirable that criminals
should be detected and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and
pay for other crimes, when they are the means by which the evidence is to be obtained ....We have to choose, and for my part I think it a less evil
that some criminal should escape than that the government should play an ignoble part.
32

In other words the citizen is entitled to be protected from illegal or irregular invasions of his liberties by the authorities.
The rationale for the second objective has been expounded in equally emphatic terms by Cardozo J on behalf of the New York Court of Appeals:
The pettiest peace officer would have it in his power through over-zeal or indiscretion to confer immunity upon an offender for crime the most
flagitious. A room is searched against the law and the body of a murdered man is found. If the place of discovery may not be proved the other
circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed and the murderer goes
free.
In other words, the interest of the State to secure that evidence bearing upon the commission of a crime and necessary to enable justice to be
done shall not be withheld from Courts of law on a merely formal or technical ground.

32
Lawrie v. Muir. [19501 S.L.T. 37. at 39-40 (Ct. Just. 19491
The above statements elucidate the two approaches to illegally obtained evidence
1. Mandatory Exclusion
2. Mandatory inclusion
Mandatory Inclusions (UK Position)

Authority
In R V. Leatham Justice Compton was of the opinion that:
it matters not how you get it, if you steal it even, it would be admissible in evidence
This case was quoted with approval in Kuruma v. The Queen, [1955] A.C. 197. at 203, [1955] 1 All E.R. 26 where The Privy Council(Lord
Goddard), in its opinion given on an appeal from Kenya, asserted:
that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible
and the court is not concerned with how the evidence was obtained.
Nonetheless, it is worth noting that the circumstances under which Kuruma was decided were questionable as it was during the emergency
period and thus the courts were more inclined to favour any approach that led to conviction of those they considered mau mau terrorists.
In R V. Sang [1979] 2 AER P 1222 The House of Lord held that
1. A Judge in a criminal trial always has discretion to refuse to admit evidence if its prejudicial effect outweighs its probative value;
2. Except in the case of admissions, confessions and evidence obtained from an accused after the commission of an offence, a Judge has no
discretion to refuse to admit relevant admissible evidence merely because it had been obtained by improper and unfair means.
3. The use by the police of an agent provocateur or an informer to obtain evidence was not a ground on which the discretion should be
exercised. Such a factor may however be considered in mitigating the sentence imposed on the accused.
4. The defence of entrapment had no place in English Law and could not be accepted by a Judge as a ground for exercising the discretion to
exclude the prosecutions evidence of the commission of the crime.
Mandatory Exclusion (US position)

In the United States where the development of the law has taken place within the framework of fundamental rights enshrined in the
Constitution.
The fourth amendment to the American Constitution declares:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated
and no Warrants shall issu but upon probable cause. Supported by Oath or affirmation and particularly describing the place to be searched and
the persons or things to be seized.
In Weeks v. United States. 232 U.S. 383 at 393 (1914) the Supreme Court held that:
If letters and private documents can thus be seized and held and used for evidence against a citizen accused of an offence the protection of the
Fourth Amendment is of no value and so far as those thus placed are concerned might as well be stricken from the Constitution
The idea being that such evidence is fruit of the poisonous tree.
The American Law Institute proposed a qualification to the automatic exclusionary rule which would permit its invocation without discretion
only if the violation was "gross, wilful, and prejudicial" to the accused.
33

Alternative approach

The constitution (Kenya)
Article 50 (4) the constitution of Kenya holds that,
Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that
evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.
This article suggests that Kenya has opted to take the alternative middle ground option

33
see A MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE, s. 160.7(2)(a) (1975).

Examples of constitutional provisions that may be infringed
Requirement for a fair trial
In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been
respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence
and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which
it was obtained cast doubts on its reliability or accuracy.
Right to privacy
The constitution protects persons against being subjected to the search of their person or property without their consent. It also protects
against entry to peoples property by others without their consent. This can be extended to the use of covert listening devices.
Prohibition against torture and inhuman or degrading treatment or punishment
This enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against
terrorism and organised crime, the Constitution prohibits in absolute terms torture and inhuman or degrading treatment or punishment,
irrespective of the suspects conduct.
Right to silence and the privilege against self-incrimination
The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the
accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.
Public interest concerns cannot justify measures which extinguish the very essence of an applicants defence rights, including the privilege
against self-incrimination.
Judges discretion

Where evidence is procured by illegal action, it is a matter for the trial judge to decide, in his discretion, whether to admit it or not, subject, in
cases where the evidence is admitted, to review by an appellate court.
The modern law in most jurisdictions is founded on a compromise between the two conflicting objectives. Neither objective can be accorded
unqualified recognition by the law of evidence.
The protection of the citizen is primarily protection against unwarranted, wrongful, and perhaps high-handed interference; the common
sanction is an action for damages.
The protection is not intended for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the
interest of the state cannot be magnified to the point of causing all the safeguards for the protection of the citizen to be suppressed.
Factors that a judge may take into account in exercise of her discretion
34

The existence of circumstances of urgency is a relevant consideration. For example where the evidence is likely to disappear or
destroyed if the police do not act promptly.
The nature and degree of the illegality committed may have some bearing on the question of admissibility of evidence. That is, whether
the illegality is trivial or technical in nature, or whether it was a serious invasion of important rights the recurrence of which endanger
necessary freedoms.
The gravity or otherwise of the suspected offence
The nature of the investigation must also be taken into account
The position of the accused such elements as the antecedents, Cultural and educational background, temperament and demeanour of
the accused are probably subsumed in this criterion.
The purpose for which the impugned evidence is sought
The question whether the unlawful search has been conducted by the police or by some other persons is of marginal importance.
Acquiescence by the accused to a search made without lawful authority arguably reduces the cogency of an objection to the reception
of evidence procured by the search.

34
C. L. Peiris the admissibility of evidence obtained illegally: a comparative analysis, Ottawa Law Review Vol. 13:2
In People v. O'Brien, [1965]I.R. 142 (S.C. 1964) the Irish court was of the opinion that:

The courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must
uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents
as a result of a deliberate and conscious violation of the constitutional rights of the accused person.
The subjective attitude of the person responsible for the unlawful search may affect the result. It is probably relevant to consider
whether the motive of the officer conducting the search was proper or improper. Reprehensible neglect on the part of the person
making the search in regard to compliance with the procedure required by the law could conceivably tilt the balance in favour of
exclusion of evidence.
Naturally, a deliberate illegality is less easily excused than an accidental illegality. If the unlawful act is intentional, the further question
arises whether it is the result of an ad hoc decision or whether it represents a settled or predetermined policy.
The adequacy or paucity of the grounds on which the search was made is a pertinent factor.
It would ordinarily make a difference whether or not a defendant in criminal proceedings has been deliberately misled by the person
embarking on the search. For example, The Australian courts have taken the view that:
if the police not only make on an accused person a demand with which he is not bound to comply, but in addition give him to understand that
compliance is legally necessary, and he complies believing that he has to comply, then this court should discourage such conduct in the most
effective way, namely, by rejecting the evidence.
35

The Privy Council, in its opinion delivered on an appeal from Kenya, mentioned, as a ground for excluding relevant evidence which had been
obtained by a trick.
36

However, consider the sentiments of Lord MacDermott L.C.] who expressed the view that :

35
Regina v. Ireland (No. I l. [1970] S.A.S.R. 416 (S.c.).
36
Kuruma Y. The Queen, [1955] A.C. 197. at 203, [1955] 1 All E.R. 26, ut 239 (P .c.) (Kenya) (Lord Goddard).
there is no ground for saying that any evidence obtained by any false representation or trick is to be regarded as oppressive and left out of
consideration. Detection by deception is a form of police procedure to be directed and used sparingly and with circumspection; but as a method it
is as old as the constable in plain clothes and, regrettable though the fact may be, the day has not yet come when it would be safe to say that law
and order could always be enforced and the public safety protected without occasional resort to it.
37

Further, The English Court of Appeal has stated that evidence should not be excluded merely because a trick or misrepresentation has been
used to secure that evidence.
38

NOTE
A distinction is sometimes drawn between evidence obtained unfairly and that obtained illegally. As a rationale underlying this distinction, it has
been suggested that illegally-procured evidence should be excluded more readily than unfairly-obtained evidence because illegal acts usually
affect both guilty and innocent adversely, while tricks do not.
Problems connected with the use of unfair means in obtaining evidence have frequently arisen in the setting of activities instigated by an agent
provocateur.
Evidence obtained through an agent provocateur, although not susceptible to exclusion either by virtue of a rule of law or as a matter of
discretion, should be evaluated with caution. As is the case with accomplice, the evidence of an agent provocateur is better when corroborated.
Confessions

A confession that is obtained as a consequence of the deception or inducement of the person confessing is not admissible even though it is
relevant.
In order to determine whether the applicants right not to incriminate himself has been violated, the Court may have regard to the following
factors:
the nature and degree of compulsion used to obtain the evidence

37
Regina v. Murphy, [1965]N.1.L.R. 13S (H.C.).
38
Sang, (1979)2 W .L.R. at451 (C.A.)(Rosklli L.L).
the weight of the public interest in the investigation
punishment of the offence at issue
the existence of any relevant safeguards in the procedure; and
the use to which any material so obtained is put.

Nevertheless, it is a recognized principle of evidentiary law that if, in the course of [an inadmissible] confession, the party [confessing] state
where ... goods or a body may be found, and they are found accordingly, this is evidence, because the fact of finding proves the truth of the
allegation and his evidence in this respect is not vitiated by the hopes or threats which may have been held out to him.
The applicable rationale is that the reason of rejecting extorted confessions is the apprehension that the prisoner may have been thereby
induced to say what is false: but the fact discovered shows that so much of the confession as immediately relates to it is true
39
. Similarly,
testimonial trustworthiness of evidence procured during an illegal search is unaffected by the mode of its discovery.
Reliability of confessions
Reliability may be assessed by examining the internal and intrinsic quality of what was said: how does it look, how does it sound, how does it
compare with what was known about what actually happened.
Reliability may also be assessed by examining the nature of the speaker, eg whether they have a mental problem. The authoritative work by Gisli
Gudjonsson, The psychology of Interrogations, Confessions and Testimony
40
gives a series of tests which could be very useful in measuring the
reliability of confessions.
Other issues
Modes of excluding inadmissible evidence

39
Rex v. Butcher. 168 E.R. 235 n (Assizes 1798).
40
Published by John Wiley and Sons, Chichester, West Sussex, 1992
There are two ways of excluding inadmissible evidence. One is by objection and the other is by a motion to strike out.

Objections
An objection or motion to strike is used to exclude evidence an advocate believes is inadmissible.
Failure to make a timely and specific objection forfeits the right to raise the issue on appeal.
Another consequence of failing to object is that the admitted evidence becomes part of the trial record and may be considered by the
magistrate/judge in her deliberations, and by a reviewing court determining the sufficiency of the evidence.
Specific objections in objecting the advocate must give a statement of the specific grounds upon which the objection is unless the grounds are
apparent from the context. For instance, objection, hearsay is a specific objection pointing out that the evidence is hearsay and thus
inapplicable. It is always advisable for the advocate to indicate which particular portion of evidence is objectionable.
An objection that is not sufficiently specific is called a general objection.
Irrelevancy, immateriality or incompetency, are the general grounds for objection. The first two are valid grounds for objection without need of
specification or explanation.
Objections to evidence may be formal or substantive.
Formal objections
These are based on the defective form of the question asked.
For Example: leading questions, misleading questions, double or multiple questions, vague; ambiguous; indefinite or uncertain questions,
Repetitious questions, or those already answered (unless it is cross-examination), Argumentative questions, which challenge a witness's
testimony by engaging him in an argument.
NOTE
Leading questions, which suggest to the witness the answer desired. To avoid asking leading questions begin one should begin questions with
begin with the proper interrogative pronouns, such as who, what, where, why, and how,
Leading questions are allowed of a witness undercross-examination; and when the witness is unwilling or hostile, after it has been demonstrated
that the witness had shown unjustified reluctance to testify or has an adverse interest or had misled the party into calling him to the witness
stand.
Substantive objections
These are based on the inadmissibility of the offered evidence.
For example
irrelevant; immaterial, best evidence rule, parol evidence rule, disqualification of witness, privileged communication, res inter alios acta,
hearsay, opinion, evidence illegally obtained , private document not authenticated
NOTE
The ruling by the court on an objection must be given immediately after an objection is made, unless the court desires to take a reasonable time
to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against
whom it is made an opportunity to meet the situations presented by the ruling.
Thus, an objection to a question asked of a witness must be at once resolved by the court by either sustaining or overruling the objection. Unless
the objection is resolved, the examination of the witness could not be expected to continue since in all likelihood the next question would
depend on how the objection is resolved.
If the issue raised by the objection is a particularly difficult one, it would be proper for the judge to perhaps declare a brief recess to enable him
to quickly study the matter. The reason for sustaining or overruling an objection need not be stated.
Motion to Strike
In some instances, a witness may answer before counsel can object, or a questions tendency to elicit an objectionable response will not become
apparent until the response is given. Even though the Court has heard the answer, it is nevertheless important to ask the judge to strike the
response because such a ruling precludes opposing counsel from referring to the stricken material in closing argument, or the judge from basing
his ruling on such evidence.
Cross examination

Cross-examination has been described as the most effective method for testing a witnesss evidence.
41
On his part Wigmore wrote:
Cross-examination is greatest legal engine ever invented for the discovery of truth
42

By revealing inconsistencies and highlighting errors cross-examination, could assist in identifying dishonest witnesses. Nonetheless, one should
note that the witness may be an honest one and is making inaccurate statements in response to suggestive leading questions, the stress of the
courtroom scenario or many other reasons.
Reliance on the oath
One of the reasons advanced as to why a statement that is hearsay is deemed to be unreliable is because it is not made on oath in court.
The oath is based on the belief that God would punish a liar. For that reason the idea persists that oaths are an effective way to make witnesses
tell the truth or face eternal damnation; thus it is viewed as a powerful disincentive to perjury.
The religious character of the oath therefore means that it embodies the highest possible security which men in general can give for the truth
of their statements.
43

In other words, the taking of an oath or affirmation may at least have the effect of making witnesses more cautious when giving their testimony
than they may otherwise be.
NOTE
The right of the accused in a criminal trial to cross-examine witnesses is, today, an internationally recognised fundamental right.
In conclusion, there should be caution against the idea that because a particular rule or an alteration to a rule has been thought appropriate
in other jurisdictions, it is necessarily appropriate here. There is a beguiling and seductive plausibility in the assumption that arguments for or
against a doctrine of a particular nature in one jurisdiction can be applied to the operation of that doctrine or one very like it in another
jurisdiction. But in fact, and even as between closely related common law jurisdictions such as those in Kenya and England, there are substantial
differences in the approach in public policy, law and procedure to the treatment of legal issues generally, and in particular to the treatment of
criminal matters.

41
See Zuckerman The Principles of Criminal Evidence (Oxford University Press 1989) at 93.
42
Wigmore Evidence in Trials at Common Law (3rd ed Little Brown & Co., 1974).
43
Whitcombe, An Inquiry into Some of the Rules of Evidence Relating to the Incompetency of Witnesses (London, 1824), 39.
Features which are apparently similar or identical may play a different part, of a greater or lesser importance, in another system of law; and it
would be unwise to assume that considerations which inform a decision in one jurisdiction will necessarily inform a similar decision in another.
And, even assuming that the conditions in one jurisdiction are directly comparable to those in another, there is no reason why different
parliaments should not take different views on purely policy grounds.
Proof by affidavit

Even though the general rule is that the manner of proving facts in a court of law is by oral evidence, sometimes the court may order that
evidence be presented to the court by way of an Affidavit.
The civil procedure rule holds that, in instances where evidence has been given to the court by way of an affidavit, the court may, either upon
the application by one of the parties or on its own motion require that the Deponent of an Affidavit appears in court for cross examination.
Therefore, the court reserves the right to call the deponent of the affidavit.
Contents of an Affidavit
The general rule is that the affidavit must contain facts within the deponents personal knowledge; the exception to this law is in interlocutory
proceedings where one can have facts in the affidavit that are based on information and belief.
If the affidavit is not in support of interlocutory proceedings, one must seek the leave of the court if they want to include facts based on
information and belief. If the leave is granted one must quote the source and the ground for belief.
Proper Presentation of Evidence

Every piece of evidence, regardless of its nature, requires certain processes of presentation for its admissibility and admission:
Object evidence must generally be marked either during the pre-trial or during its presentation at the trial. It must also be identified as
the object evidence it is claimed to be.
Object evidence must be formally offered after the presentation of a party's testimonial evidence.
Oral evidence is presented through the testimony of a witness. oral evidence must be formally offered at the time the witness is called to testify.
It is essential that the proper foundation for the testimony of a witness must be laid. For example, an ordinary witness must be shown to
have personal knowledge of the facts he shall testify to, otherwise his testimony will be hearsay, or he will be incompetent to answer the
questions to be asked of him. Similarly, an expert witness must be specifically qualified as such; otherwise he cannot validly give his opinion
on matters for which he may have been summoned as a witness.
Documentary evidence must be:
(a) marked;
(b) identified as the document which it is claimed to be (as when the witness asserts that the document presented to him is the same
contract which he claims was executed between the two parties);
(c) authenticated, if a private document, by proving its due execution and genuineness; and
(d) formally offered after all the proponents witnesses have testified. It is important to specify the purpose for which the evidence is
offered.

References
Ashworth Principles of the Criminal Law 5th ed (Oxford University Press, 2006)
A Critique of two Arguments Against the Exclusionary Rule: The Historical Error and the Comparative Myth, 32WASH. & LEE L. REV. 881 (1975).
Choo, Hearsay and Confrontation in Criminal Trials (Clarendon Press Oxford, 1996)
Choo, The Notion of Relevance and Defence Evidence [1993] Crim LR 114.
Coss, The Defence of Provocation: An Acrimonious Divorce from Reality (2006- 2007) 18 Current Issues in Criminal Justice 51, at 52
Duff, The Demise of Kearley, A Hearsay Problem Solved? (2005) International Commentary on Evidence (2) 1.
Guest, Hearsay Revisited (1988) Current Legal Problems 33.
Paul Roberts, "Double Jeopardy Law Reform: A Criminal Justice Commentary" (2002) 65 MLR 393 at 397-405.
Keane The Modern Law of Evidence (5th ed., Butterworths, 2000).
Herring Criminal Law (Palgrave Macmillan Law Masters 2005) at 3
Horder Provocation and Responsibility (Clarendon Press 1992).
Langbein ,The Criminal Trial before the Lawyers (1978) 45 U. Chi. L. Rev. 263, 302.
Lantham Killing the Fleeing Offender [1977] 1 Crim LJ 16 at 17-18.
McAuley & McCutcheon Criminal Liability (Roundhall Sweet & Maxwell, 2000).
McEwan Evidence and the Adversarial Process - The Modern Law (1998) 36-37.
Morgan, Hearsay Dangers and the Application of the Hearsay Concept (1948) 62 Harvard Law Review. 177,
OMalley, Sentencing Law and Practice 2nd ed (Round Hall Sweet & Maxwell, 2006)
Osbourne Hearsay and the European Court of Human Rights (1993) Crim LR 255, at 259.
Power Provocation and Culture (2006) Criminal Law Review 871, at 877
Reed Evidentiary Failures: A Structural Theory of Evidence Applied to Hearsay Issues (1994) 18 American Journal of Trial Advocacy 353, at 371.
Robinson Criminal Law Defenses: A Systematic Analysis (1982) Columbia Law Rev, Vol.82 (2):199 -291 at 203.
Tapper Cross and Tapper on Evidence (8th ed Butterworths, 1995), at 566.
Turner Kennys Outlines of Criminal Law (Cambridge University Press, 19th ed, 1966) at 499.
Wigmore The History of the Hearsay Rule (1904) 17 Harvard Law Review 437, 440.
Williams The Proof of Guilt: A Study of the English Criminal Trial (3rd ed 1963) at 207.
Zuckerman, Relevance in Legal Proceedings in Twining (ed) Facts in Law (1993).
The Presumption of Innocence in English Criminal Law [1996] Crim LR 306, 309.
Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law 13 (1995).
John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum.
Behav. 19, 24 (1983).
William C. Thompson & Edward L. Schumann, Interpretation of Statistical Evidence in Criminal Trials, 11 Law & Hum. Behav. 167, 182 (1987).
Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 5658 (1987).
Paul Bergman, A Bunch of Circumstantial Evidence, 30 U.S.F. L. Rev. 985, 986 (1996)
H. Richard Uviller, Acquitting the Guilty: Two Case Studies on Jury Misgivings and the Misunderstood Standard of Proof, 2 Crim. L.F. 1, 4 (1990).
Peter W. Murphy, Some Reflections on Evidence and Proof, 40 S. Tex. L. Rev. 327, 344 (1999); cf. Dale Griffin & Amos Tversky, The Weighing of
Evidence and the Determinants of Confidence, in Thomas Gilovich et al., Heuristics and Biases: The Psychology of Intuitive Judgment 231 (2002).
Elizabeth F. Loftus, Reconstructing Memory: The Incredible Eyewitness, Psychol. Today, Dec. 1974, at 116, 118.
Langbein The Criminal Trial before the Lawyers (1978) 45 U. Chic. LR 263 cited in
Golan The History of Scientific Expert Testimony in the English Courtroom (1999) 12 Science in Context 7 at 9
Wigmore
A Treatise on the Anglo-American System of Evidence in Trial at Common Law(3rd edition, Little Brown and Company, Boston, 1940) Vol. VII at
1918.

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