INTRODUCTION
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PAPER NO. 5 PRINCIPLES OF LAW OF EVIDENCE AND THE TRIAL PROCESS
UNIT DESCRIPTION
This paper is intended to equip the candidate with knowledge, skills and attitudes that will enable him/her to apply the principles of law of evidence in fraud/corruption investigations and have good understanding of the court trial processes.
LEARNING OUTCOMES
A candidate who passes this paper should be able to:
- Apply the basic principles of evidence
- Apply the burden and standards of proof in civil and criminal proceedings
- Apply the criminal and civil justice system in practice
CONTENT:
- Basic principles of evidence
- What is evidence
- Information versus evidence
- Principles of evidence – relevance, reliability and admissibility
- Types of evidence – direct and circumstantial evidence
- Forms of evidence – testimonial, real and demonstrative evidence
- Exculpatory and inculpatory evidence
- Character and hearsay evidence
2. Burden and Standard of Proof
- Burden and Standard of proof in criminal cases
- Burden and Standard of proof in civil cases
- Exceptions in the burden and standards of proof
3. Criminal Trial Process for Fraud and Corruption Cases
- What is a criminal offence
- Introduction to criminal law
- Parties involved in a criminal trial
- The rights of criminal suspect and defendant
- The charging process and charging documents
- Joinder of Counts and Joinder of Persons
- Framing of charges
- Defective charges
- Amendment of charges
- Discovery of evidence – adversarial and inquisitorial
- Disclosure of evidence
- Evidentiary legal privileges and protection
- Prosecutorial bargaining agreements
- Trial phases – Pre-trail and Trial
- Fraud case/Criminal defenses
- Sentencing
- Appeal
- Corporate criminal liability
- Corporate deferred prosecution agreement
4. Civil Trial Process for Fraud and Corruption Case
- What is a civil wrong
- Civil procedure
- Trial phases
- Parties in a civil proceeding
- Preservation of evidence
- Discovery of evidence by the parties to the litigation
- Disclosure of evidence
- Civil appeals
- Civil legal remedies
5. Presentation of Evidence in a Court of Law
- Parties involved in court proceedings
- Qualification for testifying as an expert witness
- Characteristics and skills of an expert witness
- Examination in chief (Direct examination)
- Cross examination
- Re examination
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6. ALTERNATIVE DISPUTE RESOLUTION FOR RECOVERY OF FRAUD LOSSES
- Mediation
- Arbitration
- Fidelity insurance
SAMPLE WORK
Complete copy of CFFE Principles of Law of Evidence And The Trial Process Study Notes is available in SOFT copy (Reading using our MASOMO MSINGI PUBLISHERS APP) and in HARD copy
Phone: 0728 776 317
Email: info@masomomsingi.com
CHAPTER ONE
BASIC PRINCIPLES OF EVIDENCE
In general, evidence consists of anything that can be used to prove something. In a legal sense, evidence refers to the testimony, documents, exhibits, and other tangible objects offered to prove or disprove the existence of an alleged fact during court proceedings.
In legal systems, the use of evidence is often regulated by an intricate set of principles that have been developed and refined over hundreds of years, designed to ensure that only relevant and probative evidence is admitted and that irrelevant, unreliable, and prejudicial evidence is excluded so that cases can be fairly and expeditiously decided.
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Every aspect of a legal case—from filing the complaint to the presentation of witnesses and exhibits—is affected by rules of evidence. This body of law covers not just what counts as evidence, but how that evidence is gathered, handled, and presented.
In every jurisdiction, the law of evidence governs the admissibility of evidence in legal proceedings. The law of evidence, however, varies between countries and legal systems. Common law legal systems have separate rules of evidence that regulate the admission and evaluation of evidence by courts. For example, evidence in U.S. federal courts is governed by the Federal Rules of Evidence (FRE). These rules establish what can and cannot be introduced during a dispute. In the late 1960s, a U.S. Supreme Court panel began codifying centuries of common law into the FRE. What had previously been a far-flung set of precedents, buried in local jurisdictions and lengthy appellate court decisions, was gathered into a singular body of information. The FRE became law in 1975. Likewise, in Canada, the Canada Evidence Act regulates the rules of evidence in court proceedings under federal law. Civil law legal systems, however, do not have a separate code of evidence law.
The rules of evidence can be complex, and counsel should be contacted if an important question of evidence arises in the course of a fraud examination. Additionally, rules of evidence vary by jurisdiction, even within the same country. For example, in the United States, state courts have rules for the admissibility of evidence that might differ from federal rules. The following are some general principles regarding evidence; however, fraud examiners should always review the rules applicable in their jurisdiction.
Evidence can be anything perceptible by the five senses, which is invoked in the process of arguing a case. Documents, spoken recollections, data of various sorts, and physical objects are all potentially evidence. Put differently, evidence is simply anything that relates to proving or disproving a fact that is of consequence in a case. With the known universe available for court inspection, legal authorities have narrowed the field by setting up categories to evaluate evidentiary significance.
There are three basic forms of evidence: testimonial, real, and demonstrative. Testimonial evidence refers to the oral or written statements made by witnesses under oath. In general, there are two types of testimonial witnesses: lay witnesses and expert witnesses. A lay witness (or fact witness) is a nonexpert witness who must testify from personal knowledge about a matter at issue. An expert witness is a person who, by reason of education, training, skill, or experience, is qualified to render an opinion or otherwise testify in areas relevant to resolution of a legal dispute.
Real evidence refers to physical objects that played a part in the issues being litigated. The term includes both documentary evidence—such as canceled checks, invoices, ledgers, and letters—as well as other types of physical evidence. Therefore, a printer in a case involving questioned documents is clearly real evidence, as is a tape recording since members of the court can experience the sounds firsthand.
Demonstrative evidence is a tangible item that illustrates some material proposition (e.g., a map, a chart, or a summary). It differs from real evidence in that demonstrative evidence was not part of the underlying event; it was created specifically for the trial. Its purpose is to provide a visual aid for the fact finder. Nonetheless, demonstrative evidence is evidence and can be considered by the fact finder in reaching a verdict.
Direct Versus Circumstantial Evidence
There are two basic categories of admissible evidence: direct evidence and circumstantial evidence. Direct evidence is evidence that tends to prove or disprove a fact in issue directly, such as eyewitness testimony or a confession. Circumstantial evidence is evidence that tends to prove or disprove facts in issue indirectly, by inference. Many fraud cases are proved entirely by circumstantial evidence, or by a combination of circumstantial and direct evidence, but seldom by direct evidence alone. The most difficult element to prove in many fraud cases—fraudulent intent—is usually proved circumstantially, and necessarily so, because direct proof of the defendant’s state of mind, absent a confession or the testimony of a co-conspirator, is impossible.
The distinction between direct and circumstantial evidence, however, is more significant in common law systems than in civil law systems; in trials held in civil law systems, the court weighs all relevant evidence, regardless of type, to reach its decision.
Not all evidence is admissible. To be admissible, evidence must normally satisfy certain requirements. However, common law systems tend to have far more stringent restrictions on the admission of evidence than civil law systems. This is, in part, due to the extensive use of juries in common law systems. In common law systems, limitations on the admission of evidence are intended to protect jurors from irrelevant evidence and to ensure that the defendant receives a fair trial.
In common law systems using adversarial processes—those in which the litigating parties drive the discovery process—questions involving the admissibility of evidence occur when one party objects to another party’s offer of evidence. If a judge sustains an objection, the evidence is not admitted. If, however, the judge overrules the objection, the evidence is admitted and can be considered by the fact finder.
The admissibility of evidence largely depends on the discretion of the presiding judge, but a basic requirement of admissibility in both common and civil law systems is that evidence must be relevant. To be admissible in common law systems, evidence must be relevant to material issues in dispute. In civil law systems, evidence is admitted if the presiding judge determines it is relevant.
Simply stated, evidence is relevant if it tends to make some fact at issue more or less likely than it would be without the evidence. The facts in issue, of course, vary according to the case, but they generally can be said to be those facts that tend to prove the essential elements of the offense or claim, as well as related matters, such as motive, opportunity, identity of the parties, and credibility.
Whether a particular piece of evidence is relevant or not depends on what the evidence is offered to prove. An item of evidence might be relevant and admissible if offered to prove one thing, but it might be irrelevant and inadmissible if offered to prove something else. For example, under U.S. law, evidence of other crimes, wrongs, or acts committed by the defendant would not be admissible if offered to prove that the defendant is generally a bad person and therefore likely to be guilty of the crime charged. However, such evidence could be admissible if offered to prove motive, intent, identity, absence of mistake, or modus operandi, if such factors are at issue. If evidence of other wrongs or acts is admitted, the judge will instruct the jury that they may consider the evidence only as it relates to the narrow issue for which it was admitted and may not consider it for any other purpose.
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Also, in common law systems using adversarial processes, the fact that an item of evidence is relevant does not automatically mean that it will be admitted. Relevant evidence might be excluded if it is unduly prejudicial, threatens to confuse or mislead the jury, threatens to cause unnecessary delay or waste of time, or is merely cumulative. Thus, evidence of drug addiction technically might be relevant to prove motive for embezzlement or fraud, but it will be excluded if the judge determines that its probative value is outweighed by the danger of prejudice to the defendant. Relevant evidence might also be excluded if it is subject to certain privileges as noted below. Evidence of other crimes and acts, as discussed above, that is otherwise relevant might also be excluded for the same reason.
Relevant evidence can be either inculpatory or exculpatory. Inculpatory evidence tends to show that an individual is guilty or at fault. Exculpatory evidence tends to clear an individual from fault or guilt. Evidence that is neither exculpatory nor inculpatory is likely irrelevant.
Authentic evidence is evidence that accurately represents the fact or situation it is offered to prove or disprove. The authenticity of evidence is an important concept in civil law and common law systems.
Authenticity in Civil Law Systems
Civil law systems, in contrast to common law systems, do not impose a requirement of authenticity for the admission of evidence. However, authentication is relevant in civil law systems because it affects the evidential value or weight the fact finder should give to evidence. That is, in civil law systems, authenticity is a factor to be considered by the fact finder in deciding, in light of all the evidence presented at trial, just how much weight to give the evidence. If, for example, a relevant item of evidence is not authentic, it will not be reliable, and, therefore, it will not be helpful to the fact finder in ascertaining the truth.
Consequently, the fact finder will give it less weight than authenticated evidence. Conversely, an item of evidence deemed relevant and authentic will be reliable, and, therefore, it can be used by the fact finder to ascertain the truth.
Authenticity in Common Law Systems
In common law systems using adversarial processes, evidence will not be admissible unless it is established as authentic. If a piece of real evidence cannot be authenticated, it will not be admitted, even if it is relevant.
Admissibility of Testimonial Evidence
Rules regarding the admissibility of testimonial evidence in civil law jurisdictions are typically more lenient than in common law jurisdictions. Generally, in civil law jurisdictions, testimonial evidence is admitted if the presiding judge decides it is relevant.
In contrast, to be admissible in common law countries, testimony generally must be relevant and based on:
- Fact, not speculation or opinion (unless the witness is testifying as an expert)
- Direct knowledge, not hearsay
Very generally, witnesses have direct knowledge if they:
- Performed the act or participated in it
- Saw the act being performed
- Heard about the act from the defendant (or in some circumstances, from a co-conspirator)
Special Rules Concerning the Admission of Evidence in Adversarial Proceedings
Common law systems that use adversarial processes have several rules that restrict the admission of evidence. These rules are not present in civil law systems that use inquisitorial proceedings.
In common law systems, special rules exclude certain forms of evidence that lack reliability. The most common of these rules are:
- The rule of authentication
- The rule against character evidence
- The rule against opinion testimony
- The best-evidence rule
- The rule against hearsay
In common law systems using adversarial processes, exhibits are inadmissible unless they are relevant and established as authentic. Exhibits are the tangible objects presented as evidence. Therefore, both real evidence and demonstrative evidence are entered into the record as exhibits. Exhibits include documents such as contracts, letters, and receipts, as well as photographs, X-rays, baseball bats, knives, fountain pens, and computer files. In short, almost anything that is not testimony is an exhibit. Testimony is what people say. Exhibits are the “props.”
Questions concerning the admissibility of exhibits are determined by the trial judge in common law systems using adversarial processes.
But again, to be admissible at trial, evidence, other than testimonial evidence, must be properly authenticated; that is, the party offering the item must produce some evidence (e.g., testimony from a person with firsthand knowledge) to show it is, in fact, what the party says it is and to show it is in the same condition as when it was seized. If an exhibit cannot be authenticated, it will not be admitted even if it is plainly relevant.
The authentication requirement serves to ensure that evidence is what it purports to be and is genuine, not a forgery.
Although testimonial evidence does not have to be authenticated to be admissible, the courts in common law systems have a sort of credibility test for witnesses. Witnesses must demonstrate that the knowledge they communicate is believable and was gained through personal experience.
There are a number of techniques that can be used to authenticate evidence, but they vary depending on the type of evidence. Often, evidence is authenticated by the testimony of a witness who knows about the item’s chain of custody, the testimony of a witness with knowledge that the item is what it is claimed to be, by reference to the item’s distinctive
characteristics, and so on. Additionally, certain documents are self-authenticating and may be received into evidence without independent proof of authenticity. For example, in the United States, business records are self-authenticating if they were generated or maintained in the usual course of business.
Authenticating Typical Exhibits
Below are some of the issues that might be encountered in proving that particular types of exhibits are authentic.
SAMPLE WORK
Complete copy of CFFE Principles of Law of Evidence And The Trial Process Study Notes is available in SOFT copy (Reading using our MASOMO MSINGI PUBLISHERS APP) and in HARD copy
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DEMONSTRATIVE EVIDENCE
Demonstrative evidence refers to a tangible item that illustrates some material proposition. It differs from real evidence in that demonstrative evidence is not part of the underlying event; it is created specifically for the trial. Its purpose is to provide a visual aid for the jury.
An exhibit used for purely “illustrative purposes” is a type of demonstrative evidence. Demonstrative evidence includes charts, graphs, and summaries that help to simplify complicated evidence for the jury. In complex fraud cases, such evidence is extremely useful, but it must be simple and easy to understand.
Demonstrative evidence is admissible if the court decides that it presents a fair and balanced summary or picture of the evidence and is not unduly prejudicial. If offered for its truth value (and not just to illustrate a point), demonstrative evidence must be authenticated to show that the evidence is in fact what it is claimed to be.
Also, demonstrative evidence must be made available to the other party, and the court may order that the information used to create the exhibit be produced in court.
DIAGRAMS
A diagram is a schematic or technical drawing that is used to help make something easier to understand. A diagram (on paper or some other tangible display) can be admitted as evidence with no more foundation than the assent of a witness (e.g., “Is this a fair representation of the suite where you work?”). It does not have to be true to scale or particularly detailed. A diagram can be prepared before trial, during trial, or prepped outside the court and finished during questioning. If a party objects to the admission of a diagram, the offering party may need to establish that it is reliable. Diagrams can be used in tandem with photos or other representational evidence, or as assistance in demonstrations to the jury.
SAMPLE WORK
Complete copy of CFFE Principles of Law of Evidence And The Trial Process Study Notes is available in SOFT copy (Reading using our MASOMO MSINGI PUBLISHERS APP) and in HARD copy
Phone: 0728 776 317
Email: info@masomomsingi.com
