Evidence and court procedure

A brief outline of some of the rules of evidence may be helpful to the architect acting as an expert witness (see Acumen note Expert witness), and also to the architect called as an ordinary witness in a case. This note outlines some of the major aspects of evidence. If you are acting as an expert witness you can also get considerable help from counsel in the preparation of evidence who can ensure that the rules of evidence are not contravened. The rules governing the admissibility of evidence may be crucial for the architect who wishes to make use of office records.

Evidence – a brief outline

Evidence is the means by which facts are proved. It is the whole body of material which the court is entitled to take into account in reaching its decision. The rules of evidence are legal rules which have developed in order to deal with four problem areas, namely:

1. Onus of proof

Except for statutory exceptions the burden of proving any facts lies with the party propounding these facts. In civil actions the standard of proof is 'on the balance of probabilities'. The judge or jury need only be satisfied that it is more likely than not that a certain event occurred. They do not have to be satisfied beyond any reasonable doubt that it did occur.

2. Facts which must be proved

When preparing for trial a party sets out the material facts. Most of these facts will have to be proved by offering supporting evidence but there are three exceptions where a party is relieved of the necessity. The first is when the court will take 'judicial notice'. It may do this because of statutory authority or because the facts are so notorious as not to require proof, or perhaps because judicial notice of these facts has already been taken in an earlier case. The second applies in civil actions to those facts which are not in dispute. In such cases the parties can make formal admissions either before or during the trial. The third exception arises when the court will presume the existence of facts which flow naturally from facts which have previously been proved. The presumption will stand unless it is rebutted.

3. Admissibility

The rules of evidence govern what the court is entitled to take into account and there are two competing factors:

a. the need to determine the truth – the search for absolute truth means an interminable search for facts and for the proof of those facts

b. the need to compress this search into manageable proportions – these needs are satisfied in two ways, by ensuring that:

• only material which is relevant to some issue will be admitted – 'relevance' has a particularly refined meaning in evidence; and
• material admitted is limited to what is inherently reliable

In sum, evidence will be confined to evidence related primarily and simply to the facts in dispute.

It is necessary to distinguish between admissibility and weight. Admissibility is a legal matter decided by applying the rules of evidence. Material is either admissible – in which case it is evidence – or it is not admissible. Weight (in civil cases) is not a legal matter – it is a matter of fact for the court to determine. The weight given to a piece of evidence once tendered is dependent on how persuasive the decision maker (judge or, in limited circumstance, jury) renders it to be.

4. Means of proof

Basically, there are three kinds of proof which the law recognises. There is proof by oral (or parole) evidence, there is proof by documentary evidence, and there is proof by real evidence.

a. Oral evidence

This is evidence given normally on oath or affirmation by witnesses appearing before the court or tribunal. There are essentially only the ordinary and the expert witness. The ordinary witness is present to inform the court of facts within the witness's own knowledge. The ordinary witness is not, in general, allowed to give an opinion as part of the evidence. On the other hand, the expert witness who has proved their qualifications and/or experience is there specifically to assist the court in reaching a decision and in order to do this is permitted to give an opinion based on expertise.

b. Documentary evidence

This is evidence contained in documents which fall into two classes – public and private documents. Public documents are those made for public reference such as maps, statutes, registers, etc. Private documents are those made for private purposes. Private documents generally must be ‘proved’ before their contents can be given in evidence. Documents are proved by showing that they were signed or 'duly executed' by the person by whom they are purported to have been made. Often, when a document is signed or 'duly executed' it will need to be witnessed, often by a Justice of the Peace, solicitor or barrister to confirm the authenticity of the document.

The original of private documents must normally be produced. This is an example of the 'best evidence' rule which requires that proof of fact must always be made by the best means available. However, copies will be admitted or sometimes oral evidence as to the contents of the documents where it can be shown that the original is not available.

c. Real evidence

This is afforded by the production and inspection of material objects or by inspecting the site in order to view the subject matter of the dispute.

Procedure in court

The procedure in court is as follows:

1. The case for the plaintiff is opened and if there is a counter claim the defence of the counter claim will be opened at the same time.
2. The plaintiff's first witness is called and examined. This is called examination-in-chief during which leading questions are not allowed.
3. The defendant may then cross-examine the witness during which questions may be asked which are not only relevant to the facts in issue, but also which tend to raise doubts about the evidence the witness gave in examination-in-chief, or which tend to raise doubts about his or her accuracy, memory, veracity or credibility. Leading questions are allowed in cross examination.
4. lf a witness has been cross-examined then the plaintiff may re-examine, but only upon matters raised during the cross-examination. The intention of re-examination is to attempt to clear up any doubts which may have been raised during cross-examination.
5. The same procedure is then followed for the remaining witnesses for the plaintiff.
6. The defendant, if he or she thinks it necessary, then opens their case.
7. The procedure of examination-in-chief, cross-examination and re-examination is then carried out with the defendant's witnesses.
8. The defendant then addresses the court.
9. The plaintiff gives the final address.

This is a generalised procedure but there may be variations pending the case jurisdiction and judicial body hearing the dispute.

Reference list:

• Cross R (1979) Evidence, 5th edn, Butterworth, London, 444-449.
• Phipson M (1976) On Evidence, 12th edn, Sweet & Maxwell, London, 486-511.