KEITH
BUSINGYE LAW GUIDE
LAW OF EVIDENCE
1. What do you
understand by the term relevance and admissibility of evidence?
This refers to the kind
of evidence relevant to prove a particular fact
2. Distinguish between
Resgastae and admissibility.
Resgastae are those
other facts which are in relationship with a fact in issue, while admissibility
is a process which court accepts or rejects particular items of evidence
depending on whether they are relevant
or not.
3. Explain the
difference between factum probendum and Factum probans. State its admissibility
in evidence.
factum probendum refers
to the principle of fact or fact in issue while Factum probans means those
other facts with evidential value that may help to explain the principle fact
and they are both admissible in court as evidence.
4. Give a valid
explanation as to whether logically relevant facts can be admitted in evidence
even if they are not declared by the act to be relevant?
What is contained in
the evidence Act is the result of long experience of shifting relevance of
various categories of evidence. Therefore what is left out as irrelevant is
reject, suspect and is likely to disguise the truth.
5. Under what
circumstances is the principle of resgestae disregarded.
This occurs after the
incident claimed to form part of resgestae has already occurred after the
transaction is complete.
6. Identify the
existing terminologies of evidence;
Court
Includes all judges,
magistrates, assessors and all persons, except arbitrators, legally authorized
to take evidence.
Evidence
Means by which any
alleged matter of fact, truth of which is submitted for investigation is proved
or disproved.
Monogamous
marriage
Means a marriage by law
necessarily monogamous and binding during the lifetime of both parties unless
dissolved by a valid judgment of court.
Leading
questions
Are the most
restrictive in which the lawyer provides details, but suggests to the client
that these details are true.
Directed
questions
Lawyer selects the
topic or subject, but client determines what information is relevant.
Fact
Any mental condition of
which any person is conscious
7. List down the
relevant modes of communication of evidence
- Oral testimony
- Presentation of a document to court
for perusal or construction.
8. There are 3
exceptions which enable court to establish facts by special means. State them.
- Formal admissions are made with
deliberate purpose of dispensing with proof, but informal admissions are
usually the subject of proof.
- Court may take judicial notice of
fact.
- In case of presumptions and thus
substitute for evidence.
9. What do you
understand by the term “probatioviva”?
This is oral evidence,
defined as all statements required by court to be made before it by witnesses
in relation to matters of fact under inquiry.
10. Which facts are to
be proved by oral evidence?
S.58 of the evidence
act states all facts except the contents of documents may be proved by oral
evidence.
11. Explain the basis
on which courts establish facts which are the occasion, cause or effect of
facts in issue in criminal cases and in civil cases. What is its significance?
In criminal cases, instances
which are afforded an opportunity for their occurrence or transaction are
relevant.
In civil cases, s.6 is
important in showing facts of causation, which is useful in apportioning
liability as well as helping in assessment of damages.
12. Illustrate the
meaning of motive and how it’s established?
- It is what influences a person to
act in a particular way, which may constitute a fear or desire to bring
about a particular activity.
- It is a mental state derived from
circumstances and relationships, and may be established from one’s words
or demeanor.
13. Which of the
following is not part of the stages in criminal law offence (circle the correct
answer?)
A. Intention
B. Preparation
C.
Anger
D. Attempt
E. Execution of the act
14. Conduct is divided
into 2 phases. List them down.
- Previous conduct
- Subsequent conduct
15. State the rationale
behind the rules of evidence?
- To establishing who has the burden
of proof in particular instances
- To prescribe facts which may be
proved
- To prescribe facts to be excluded
from consideration of the court e.g. privileged information.
- To prescribe methods by which proof
may be effected.
- To prescribe the extent of proof
required in a particular case.
- To prescribe the effect of certain
pieces of evidence.
16. By statutory
provision, courts have seen that accomplice evidence is of the worst kind and
must be corroborated. What is the rationale for requiring corroboration for
accomplice evidence?
- Their evidence is untrustworthy
before court as they are likely to tell lies in order to shift guilt from him.
- As a partner in crime with accused,
an accomplice is not likely to value his oath.
- If an accomplice usually gives
evidence because of the hope or promise to be pardoned or treated
leniently by the prosecution.
17. List down the
categories of corroboration as a requirement of judicial practice.
- Accomplice evidence
- Sexual offences
- Dying declarations
- Identification
- Evidence of a child of tender years.
18. Briefly explain the
rationale for requiring corroboration in sexual offences, and what it
constitutes.
It’s because sexual
cases are particularly subject to the danger of deliberately false charges
resulting from sexual neurosis, jealousy or simply a girl refusal to admit consent to an act.
Medical reports or any
other evidence such as state of complainant and condition.
19. With reference to
evidence obtained illegally or by unfair means. State the two conflicting
views.
• Evidence
which is admissible should not be excluded because of the means by which it was
obtained.
• Such
evidence should be excluded, to admit it might encourage obtaining evidence by
such means.
20. Under what
circumstances is evidence illegally obtained by unfair means admissible and in admissible?
Inadmissible.
• Under
common law, courts have discretion to exclude such evidence if it will operate
unfairly in a criminal trial.
• If
its exclusion is a measure to encourage better standards.
• A
confession obtained involuntarily is inadmissible in evidence.
• Evidence
illegally obtained by police can be excluded in a criminal trial if it has been
subject to conflicting authorities.
Admissible
• Provided
that the evidence is relevant there is no discretion to exclude evidence merely
because that evidence is illegally obtained.
• Its
admissible if conducted with no force, persuasion and defendants acted
voluntarily with full understanding of their own dishonesty.
21. The modern law of
evidence represents these compromises between the two extreme views. Give a
valid explanation in light of the above statement.
Generally speaking it
reflects the first view in relation to admissibility as a matter of law in
criminal cases; it also empowers the judge to exclude such evidence as a matter
of discretion.
22. What is electronic
evidence?
This is evidence which
involves a computer related offense.
23. Illustrate the
practical difficulties that may be encountered in investigating a computer
related offense.
• Computer on which relevant information is
located may be a file server connected to a huge network used for law purposes
and without which network cannot function.
• Removal
of computer will deprive the users their legitimate use of the computer.
• Information
could be protected by software that will cause information to be destroyed if
not accessed in a specific manner.
• Owner
can also object to attempts by the investigating offer to decrypt the
information.
• Inability
of investigating officers to determine the location of the computer where the
perpetrator has stored the relevant information.
• Computer
may contain privileged information that doesn’t relate to the search.
24. What is done to
prove the relevant fact relating to computer offense?
• By
providing the computer itself in court.
• A
print out of the information stored on the computer has to be proved in the
courts of law.
25. As far as
electronic evidence is concerned, relevant evidence is evidence tendered to
prove or disprove a fact in issue. What are the exceptions to the general rule?
• The
rule against hearsay evidence.
• Evidence
obtained in form of real evidence or documentary evidence.
26. Explain in your own
words the meaning of chain of evidence.
It is a factual matrix
that proves or disproves a particular assertion and evidence which supports a
factual matrix.
27. Briefly explain how
the chain of evidence operates.
The various pieces of
evidence which make up the chain are literally strung together into a sequence
of events or pieces of puzzle. A weakness in any particular link in the chain
will not support the case or defense.
28. What does the chain
of evidence consist of?
• Interpretive
process which is necessary to draw proper conclusions from available evidence.
• Integrity
of the physical evidence which includes ensuring that evidence represented in court
is an accurate representation thereof.
29. State the rationale
for retaining the chain of evidence.
To rebut allegations of
evidence tampering because a print out can be re-traced to its originating
computer file.
- Distinguish between aspect of
mental element in criminal cases and in certain torts.
In criminal cases it
may be necessary to prove mensrea while in certain torts it’s necessary to
prove knowledge or negligence.
31. Explain the
difference between sanity in criminal law and in law of succession in as far as
relevancy is concerned.
Under criminal law,
sanity is relevant to prove the guilt of an accused person or to show criminal
liability while in succession matters; sanity is relevant to consider the
validity of a will.
32. What constitutes state
of mind?
• Sanity
• Knowledge
• Intention
33. Give the meaning of
bodily feeling.
Anything that can be
physically felt by a person in relation to the occurrence of a particular
action.
34. List down instances
of state of mind that will be relevant in civil and criminal matters.
• Intention
• Ill
will
• Good
will
• Malice
35. What is referred to
as evidence of similar facts?
This is a rule that a
court can use past similar occurrences relating to a particular person to
establish whether a person is guilty or not (S.4 E.A)
36. What is the
rationale behind the relevance of similar facts in the law of evidence?
The rule proceeds on a
belief that persons do not easily change their habits and that if they have
done similar acts in the past, they are likely to repeat them.
37. Under what
circumstances is evidence of similar facts admissible?
- When there is a striking similarity
or similarities.
- If the similar facts are so
connected with the accused’s participation of a crime.
38. Identify the kind
of evidence where guilt is inferred if the facts are inconsistent with one’s innocence?
Circumstantial
evidence.
39. Compare the
similarity between the implication of identification in criminal law and in
civil law.
In both criminal and
civil law, the identity of the accused must be established and thus the person
has to be the one who committed the particular crime or offense.
40. Mention at least
two factors to be considered in criminal law during the process of
identification.
- Mental picture must be the same as
when he or she first saw.
- Time taken in identifying the
accused is important.
41. Explain the
relevant procedure required by police when conducting identification parades.
• The
accused may have an advocate or friend present when the parade takes place.
• Witness
not to see the accused before the parade.
• Accused
to be placed among at least eight persons as far as possible of similar age and
height.
• Witnesses
not to communicate with each other after they have been to the parade.
• Exclude
every person with no business there.
• Witness
to touch the person he or she identifies.
• Act
with scrupulous fairness
42. What circumstances
have been put into consideration to avoid the dangers of such testimony by a
single witness?
• Presence
and nature of light.
• Length
of time
• Opportunity
the witness had to see the accused.
• Distance
between them.
43. Mention the true
test for proper identification
The true test is not whether evidence of such
a witness is reliable but is rather “whether evidence can be accepted as free
from possibility of error”.
44. Although the law
requires all evidence to be direct, a conviction can still be secured on the
basis of circumstantial evidence, because an overwhelming circumstantial
evidence is as good as direct evidence. ith the aid of an authority give a valid explanation of this statement.
The case of Androa
Asenwa v. Ug had overwhelming circumstantial evidence which is as good as
direct evidence since the guilt of the accused could be inferred and the facts
were inconsistent with his innocence.
45. Distinguish between
a confession and admission.
A confession is an
admission made at any time by a person charged with a crime stating a
suggestion or inference that he committed the crime where as admission under S.
16 evidence act is where statement or document suggests any inference as to any
relevant fact made by any person and in the circumstances.
46. Outline at least
two instances that may water down the weight of an admission if one proves.
- If one proves there was mistake of
either fact or law.
- Proof that one who offered the
admission in ignorance and abnormal condition of the mind.
47. Write short notes
on the following.
• Retracted
statements- This is when the accused admits information recorded but seeks to
take back what he said.
• Repudiated
statements- Accused totally denies having made the statement in question.
• “Without
prejudice”- Acts as a sort of exclusion clause to exclude the letter writer
from liability from something as long as it was written without prejudice.
48. For an offer to
amount to one 'without prejudice' apart from that statement in the letter or
its being adducible from the construction of the statement of certain preconditions.
Give at least 6 preconditions which must be fulfilled.
·
There must be a dispute or negotiations
between parties and the statement must have been written bonafide to settle
that dispute.
·
If the alternative to accept what was
written was committal of an act of bankruptcy, then the letter may be admitted
to prove that.
·
If independent facts were admitted,
during negotiations, such independent facts are admissible as admissions even
if the letter without prejudice follows.
·
A notice without prejudice to annul as a
sale following failed acceptance of a given condition is void and unacceptable
·
Criminal libel without prejudice is
receivable in evidence.
49. List down the
relevant forms of admissions
- By way of affidavits
- Answers to interrogatories
- Declaration in wills
50. Give at least two
matters provable by admissions
Admissions can be
proved by law and facts or a mixture of both
51. What are instances
under which admissibility of oral evidence is put into?
consideration?
- Where one is required to give oral
evidence
- Where an admission is made in
attestation of a document
- When the genuineness of the document
produced is in question
52. The general rule
regarding who can make admissions states “no man can be a witness for himself
but he is the best witness that can be against himself. However there are
exceptions for this rule. Give a valid explanation for this statement.
• S.17
of the evidence act provides statements made by a party to proceedings or
agents authorized to do so, either impliedly or expressly.
• According
to order 1 CPR, a person can write a letter authorizing another to conduct the
matter on his behalf.
• S.17
refers to statements made by parties to a suit suing or being sued in a
representative character.
• The
section refers to persons with pecuniary interest in the subject matter of the
proceedings and who make the statement in the character of persons so interested.
53. List down the two
categories of admissions
• Those
made in contemplation of or at the beginning of the trial.
• Those
made without a view to the trial.
54. What is the
rationale for receiving admissions against the person who made them?
• Admissions
are very self-harming, so if made by person against himself then such
declaration is probably true.
• A
party's declaration whether for or against his interests may always be taken to
be true as against himself.
55. When and to whom
may admissions be made?
• The
principle rule is that when a party to a case is suing or being sued personally,
any admissions made by him on a formal occasion is admissible and can be used
against him.
• Statements
made when someone is acting in representative capacity.
• It
is immaterial to whom admissions are made; therefore even statements made to
strangers are receivable as admissions.
• Admissions
made to a legal advisor or a wife is receivable if proved by a third party.
56. Under what
circumstances may ambiguous admissions come into play and how is it ascertained
by the court.
• Where
the facts admitted are capable of two different interpretations , both of which
are equally possible , it will then be
up to court to decide which of the two meanings is taken
57. Write in your own
words what you understand by the term a confession?
• A
confession is an admission made at any time by person charged with a crime
stating or suggesting an inference that he committed the crime.
58. X told Y that if he
made the confession he would be released or acquitted, though the co-accused
will have to be imprisoned. Y agreed and told X, based on a statement that
implicated him to the crime. However X didn't keep his word or promise had Y
imprisoned. Is such a confession admissible?
• A
confession made as a result of deception and promise is admissible when made in
such a way that the accused isn't likely to be induced to tell a lie.
59. Evidence of a
gombolola askari would not be accepted in regards to identify an exhibit of
guns. Why is that so?
• Because
his carrying a gun as an Askari didn't mean he had specialized knowledge in
guns.
60. What is the effect
of inducement and threats?
• Section
26 of the evidence act states that a confession doesn't become irrelevant
merely because it was made under a
promise of secrecy of deception on the accused for the purpose of obtaining it
when drunk
61. While conducting a
trial in court where the accused was being charged with the offense of assault,
the advocate and accused brought his neighbors and employer to testify that for
5 years, he has known the accused as peaceful with a good reputation. Explain
whether or not that evidence will be admissible at the trial.
• The
evidence will be admissible in criminal cases, the fact that the accused of a
good character is relevant.
62. While conducting a
trial, the prosecution adduced evidence that the accused was of a bad
character, and brought his neighbors to testify. Is this admissible?
In criminal
proceedings, the fact that an accused person has a bad character is irrelevant.
63. What is the
difference between character evidence in criminal proceedings and in civil
proceedings?
- In criminal proceedings it is the
character of the accused while in civil cases it can be either character
of plaintiff or defendant.
- In criminal proceedings, character
of the accused may depend on whether a defendant has been convicted based
on the past conviction unlike in civil cases where, what has to be
established is his behavior in respect to civil matters at issue.
64. What is parole
evidence rule?
This is the rule that
excludes oral evidence by documentary evidence.
65. Give at least three
exceptions to the parole evidence
• When
a public officer is required by law to be appointed in writing.
• In
the proof of wills.
• Existence
of any oral agreement constituting a condition precedent for coming into effect
is admissible.
• Document
not meaningful and plain evidence may be given to show that it was used in
certain terms.
66. What do you
understand by the term self incriminatory admissions.
These are statements made
by the accused implicating himself after the commission of the crime.
67. Define the
following terminologies in the law of the evidence.
• Burden
of persuasion- Is also known as an obligation that remains on a single party
for the duration of claim
• Preponderance
of evidence.-Is also known as balance of probabilities is the standard required
in most civil cases
68. The presumption of
innocence means three things. What are they?
·
With respect to the critical facts of a
case, the defendant has no burden of proof.
·
The state must prove the critical facts
of a case to the appropriate level of certainty.
·
The dependant having been charged with a
crime and is presented in court is represented by counsel to face the charges
against him.
69. How are
interrogations of witnesses conducted in a trial?
• Through
direct examination.
• Through
cross examination.
• Through
examination of witnesses.
70. What is a privilege
in regards to the law of evidence?
These are rules that
give the holder of the privilege a right to prevent a witness from giving
testimony.
71. State the rationale
for privileges.
These are designed to
protect socially valued types of confidential information.
72. List down at least
5 types of privileges
• Marital
secrets privilege
• The
state secrets privilege
• The
attorney-client privilege
• Adverse
spousal testimony privilege
• Doctor-patient
privilege
73. How is judicial notice
in a civil case different from that in a criminal case?
In a civil case, court
takes judicial notice of a fact that is deemed conclusively proven while in a
criminal case, the defense may always submit evidence to rebut a point for which
judicial notice has been taken.
74. Who is a hostile witness?
It’s a witness in a trial who testifies for the opposing party or a
witness who offers adverse testimony to the calling party during direct
examination.
What do you understand
by the following terms?
Collateral matters-They
are matters which affect the credibility of a witness.
Exculpatory statements-These
are made by defendants when incriminating matters are put to them by the police
76. Examination of a
witness falls into three parts. Mention them.
• Examination
in chief-Where a witness for one party is called and examined by that party’s
council.
• Cross
examination-This is conducted by council for opposing party.
• Re-examination-Counsel
who examined the witness in chief can re examine that witness in order to clear
up any misunderstandings or ambiguities that may have arisen as a result of
cross examination.
77. What condition has
to be satisfied before a child is rendered compatible in a criminal trial?
In a criminal trial, a
child is rendered compatible provided he or she understands the questions and
can give understandable answers to
them.
78.
What do you understand by the term burden of proof?
This means both legal and evidential burden
79. Distinguish between legal burden and evidential
burden of proof.
Legal burden is the
burden to prove or disprove a fact in issue, while evidential burden is the
burden that is to produce evidence on alleged facts.
80.
Distinguish between burden of proof in civil proceeding and burden of proof in
criminal cases.
-The burden of proof in
civil cases is that of the plaintiff and must demonstrate their version of facts
to be true by a preponderance of evidence while in criminal cases, the burden
of proof is very high and it’s proved by the prosecution,
beyond reasonable doubt.
- Burden of proof is much greater in criminal
trial than it is in civil trials, because there is more
at
stake like the person’s life and freedom.
81.
Who is a spouse?
Under s.12 (1) of the evidence act, husband
and wife mean respectively the husband and wife of a subsistent marriage recognized as such under the
marriage act and customary law.
82.
Is a spouse a compatible and compellable witness? Explain your point of view in
civil proceeding.
In all civil
proceedings, the husband and wife are both competent and compellable witnesses.
KEITH BUSINGYE LAW GUIDE
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