Law of evidence

Academics

COURSE OUTLINE

1. INTRODUCTION

a. The Development of the law of Evidence: Common Law and Statutory Law in Ghana
b. Scope of the Law of Evidence
c. Evidence and substantive law
d. Sources of law of evidence

I, The Bill of Rights under 1992 Constitution and law of evidence
II. Evidence Decree, NRCD 323 (Now Evidence Act, Act 323)

e. General notions underlying law of evidence
Purposes and categories of judicial evidence

Objects of Proof: Judicial enquiry

a. Facts in Issue
b. Preliminary/collateral facts

MEANS OF PROOF: TRADITIONAL CLASSIFICATION OF RULES OF EVIDENCE

a. Oral testimony
b. Hearsay Rule and Exceptions
c. DOCUMENTARY Evidence
d. Things (Objects) or tangible evidence
e. Circumstantial evidence: facts as evidence of other facts
f. Traditional evidence
g. Digital or e-evidence

2 RELEVANCE, ADMISSIBILITY AND WEIGHT OF EVIDENCE

Admissibility of Relevant Evidence
a. Meaning of Relevance
b. The inadmissibility of irrelevant evidence
c. Inadmissibility of insufficient relevant evidence
d. Admissibility and weight of evidence
e. Relevant, admissibility and Evidence Decree
f. Judicial discretion and admissibility of evidence
g. Evidence as regards character
h. Evidence obtained by illegal or unfair means
i. Fresh evidence on appeal

3 MATTERS NOT REQUIRING PROOF/BURDEN OF PROOF

Judicial findings as evidence

Judicial notice

Facts judicially noticed without enquiries

Judicial notice upon enquiries

a. Political matters
b. Historical facts
c. Customs and professional practices
Personal knowledge and judicial notice
Formal admissions
Foreign law
Burden of Proof
Nature of the burden of proof
The persuasive burden

a. Express statutory exceptions
b. Implied statutory exceptions

Evidential burden
Provisional/tactical burden and shifting of the burden
Defenses and burden of proof: insanity
Standard or degree of proof

a. Preponderance of probabilities
b. Proof beyond reasonable doubt
Proof of crime in civil cases
Matrimonial cause and standard of proof

4, Presumption

Meaning of presumption and inference
Conclusive (irrebuttable) presumptions
Rebuttable presumptions
Authentication and identifications
Estoppel
Estoppel by records (Res judicata)
Judgment in rem: Conclusive effect
Types of estoppels res judicata

i, Legal issue estoppels

a. Judgment of competent court
b. Privity, identity and capacities of parties
c. The subject matter of action

ii. Estoppel by conduct
iii. Acquiescence
iv. Estoppel relating to written instruments
v. Estoppel in criminal cases: double jeopardy

5: THE TRIAL BY JUDGE AND JURY

The functions of the judge and jury
General rule
Exceptions

a. Foreign law
b. Reasonableness
c. Facts affecting the admissibility of evidence
Judicial Control of the Jury

Withdrawal of an issue from the jury
Discretion to exclude admissible evidence
Summing up

6: WITNESSES
General and historical overview
Non-Christians and atheists
Parties to action
Spouses of the parties
The accuse

Special categories of witnesses
Children: competence; compellability
Spouses; ex-spouses; other relationships: competence and compellability
Competence of an Accuse as a witness
Sovereign and diplomats
Judges and jurors
Court’s witnesses
Oaths and affirmations

7. PROCEDURAL MATTERS RELATING TO WITNESSES

Witnesses to be called in civil/criminal proceedings
The order of calling witnesses
Questioning of witnesses

Examination-in-chief
Leading questions: meaning and prohibition
Refreshing memory
Hostile/unfavorable witness
Cross-examination
Collateral questions and finality of answers
Testing credibility of witness
Rule against self-serving or narrative and exceptions

Complaints in sexual cases
Statements to rebut allegations of recent fabrications
Res gestae

Testing credibility generally under Evidence

Previous inconsistent statement
Exhibition of bias

Corroboration
Re-examination

8. EVIDENCE OF CHARACTER

Evidence of previous conviction
Good character
Similar facts evidence and proof of identity

9. PRIVILEGE

General Introduction

Privilege against self –incrimination

What constitutes incriminating evidence?
Evidence incriminating strangers/companies

Current development in Europe
Legal professional privilege

Confidential communication
The protected material
Legal advice/Litigation
Privilege of client
Duration of privilege

Waiver of privilege
Exceptions

What constitutes voluntariness
Qualification of independent witness

Determining admissibility of confessions: the voir dire
Res gestate
Dying declarations

10. DOCUMENTARY EVIDENCE

Primary/best evidence rule
Exceptions: secondary evidence rule
Official writings (documents)
Banker’s books

Parol evidence rule: as aid to interpretation
Extrinsic evidence and construction of wills
Illiteracy and proof of documents

11. OPINION EVIDENCE

General rule and exceptions
Expert opinion
Lay opinion

Dangers of expert evidence
Admissibility of expert evidence

Relevance
Necessity in assisting the tries of facts
Absence of exclusionary rule

Fraud
Disputes between cli8ents and legal advisers
Statutory exclusions
Claims by other professional relationships
Priest and penitent
Physician and patient (Mental treatment)
Marital communication privilege
Matrimonial reconciliation
Compromise/settlement negotiations
Identity of an informant

10. HEARSAY EVIDENCE

The general character of hearsay rules
Evidence Decree and hearsay evidence
Exceptions to the general hearsay rule

Former testimonies
Evidence of state of mind
Business and public records
Family history and pedigree

Credibility and examination of hearsay declarant
Admissions
Confession statements
Properly qualified expert
Qualification of expert
Expert opinion and ultimate issues
Consideration of weight of expert evidence
Lay (non-expert evidence)

12. Public policy and law of evidence
Matters of public interest
National security and diplomatic relations
Identity of informants
Discovery, disclosure and inspection of documents
Public policy and illegality

*recommended Materials
1. Maxwell Opoku-Agyemang, Law of Evidence in Ghana, KP Publishing (2010)
1. Cross and tapper on Evidence 10th Edition
2. Stephen, Digest of the Law of Evidence
3. Rosamund Reay, Evidence 5th Edition
4. Ofori-Boateng, Ghana Law of Evidence
5. Brobbey, Practice and Procedure in the Courts and Tribunals of Ghana
6. Brobbey, Essentials of the Ghana Law of Evidence
6. Bimpong-But, the Law of interpretation in Ghana
8. John H. Wigmore, A Students Textbook of the Law of Evidence (1935)
9. Richard Eggleston, evidence, Proof and Probability (1978)
10. William P. Richardson, The Law of Evidence, 3rd ed (1928)

Prepared.by: Maxwell Opoku-Agyemang, Lecturer, Law of Evidence (2014-2015)