Presumption and Admissibility of Evidence, Exams of Law of Evidence

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UNIT - I

Distinction between substantial law and procedural law

1. Procedural law is about how the law gets passed and enforced: who has jurisdiction over whom, and what coercive processes they may use to bring suspected lawbreakers to justice. The famous Miranda lines "you have the right to remain silent” generally uttered in the U.S. when you are arrested are a species of U.S. federal procedural law. Procedure usually starts in a given case with a great deal of uncertainty and tries to reduce that uncertainty by fairly gathering and evaluating evidence, interpreting the law, and applying those facts to the law to reach legal conclusions. But Substantive law involves every law that is not procedural: it is what we normally discuss when talking about law or politics, namely the laws defining and restricting rights and duties for their own sake, not primarily for the sake of enforcing other laws. Thus for example modern property, contract, tort, family, and criminal law are substantive legal areas, as are environmental, workplace, traffic, and most other regulations. On the other hand, the laws defining who may sue whom and where, and what does and does not constitute proper arrest, interrogation, and search of criminal suspects, are procedural laws. Historically, just to confuse things a bit, property rights sometimes included rights of coercive procedure, for example the lord who had jurisdiction over his unfree tenants. This made property law in some cases part of the procedural law as well as a substantive law of economic property. Computer protocols work in layers: wires carry bits of information, and bits of information carry text, pictures, and so on. The raw bits of information are a lower level protocol that carries the text and pictures in a higher level protocol. Language works like this too: at the lowest level, paper has letters written on it. Letters are a lower-level protocol that carries words in a higher level protocol. You can think of the distinction between substantive and procedural law in the same way: the procedural layer is a lower layer that "carries" the substantive law by specifying how it is to be enforced.

We can also think of government and government-like entities as lower levels of the legal protocol. Indeed, it is very useful to study political structures alongside procedural law. Think of coercive entities like police and courts as the paper and pencil, procedural law as the letters, and substantive law as the words and sentences we want to make out of these raw materials.

2. "While the distinction between substance and procedure is not always easy to draw, it is well recognized nonetheless. The function of substantive law is to define, create or confer substantive legal rights or legal system. Procedural law provides the process that a case will go through (whether it goes to trial or not). The procedural law determines how a proceeding concerning the enforcement of substantive law will occur. Substantive law defines how the facts in the case will be handled, as well as how the crime is to be charged. In essence, it deals with the substance of the matter. Even though both are affected by Supreme Court opinions and subject to constitutional interpretations, each serves a different function in the criminal justice system. Some Basic Rules of Criminal Procedure Procedural law is exactly what the name implies. It sets out the procedure for how a criminal case will proceed. Every state has its own set of procedures which are usually written out in a set of rules called a code of criminal procedure. The basic rules which most jurisdictions follow include:
   1. An arrest must be based on probable cause;
   2. A state or federal prosecutor files a charging instrument setting out what you are accused of doing;
   3. You are arraigned on the charges;
   4. You advise the court whether or not you are seeking court-appointed counsel;
   5. A bond amount will be set in your case;
   6. You will be sent notice of a court appearance;
   7. If you cannot reach a plea bargain agreement, then your case is set for a pre-trial and trial;
   8. If you are convicted at trial, you have the right to appeal.

Punishment Systems Differ How much detail is required for each phase of the criminal procedures will vary depending on the nature of your charges and what agency is prosecuting you. For example, Texas has a bi-furcated trial system where first you must be found guilty, and then the jury can hear punishment evidence. A jury is given a range of punishment to assess in your case. The range of punishment for a first degree felony is not less than five years and up to ninety-nine years or life. This is in stark contrast to the federal procedural law. Federal judges assess punishment and are required to utilize federal sentencing guidelines instead of a wide range system. A federal defendant’s criminal history will be researched and summarized in a report by a federal probation officer. It’s much easier to predict what your sentence will be in the federal system because the punishment procedures are based on a point system.

3. Substantive law, on the other hand, deals with the “substance” of your charges. Every charge is comprised of elements. Elements are the specific acts needed to complete a crime. Substantive law requires that the prosecutor prove every element of a crime in order for someone to be convicted of that crime. What elements are required will depend on the crime with which you are charged and the state’s substantive laws. For example, for a felony driving while intoxicated charge, most states require prosecutors to prove that:
   1. You were driving or operating a motor vehicle;
   2. On a public roadway;
   3. While you were intoxicated;
   4. And that you have prior convictions for driving while intoxicated. In New Mexico, the prosecutor must show that you have previously been convicted three times for driving while intoxicated, while substantive law in Texas only requires the prosecutor to prove two prior convictions. Because substantive law and procedural laws vary by state, and sometimes even by county, make sure you consult with an experienced criminal law attorney in your jurisdiction if you are charged with a crime. They will be more familiar with the rules and

can help you invoke the protections outlined in the procedural and substantive laws of your state.

4. Substantive law is concerned with the ends which the administration of justice seeks. Procedural law deals with the means and instruments by which those ends can be achieved.
5. Substantive law determines the conduct and relation of litigants in respect of the matters litigated. But Procedural law regulates the conduct and relations of courts and litigants in respect of the litigation itself.
6. Substantive law regulates the affairs controlled by judicial proceedings. But Procedural law regulates the conduct of affairs in the judicial the conduct of affairs in the judicial proceedings.
7. Substantive law deals with the ends which the administration of justice seeks. But Procedural law deals with the means and instruments by which the administration of justice.
8. Substantive law is related and connected with public at large. But Procedural law is connected with the parties before the court.
9. The abolition of capital punishment is an alteration of the substantive law. But the abolition of imprisonment for debt is merely an alteration in the law of procedure as the imprisonment for debt is merely an instrument to enforce payment.
10. Substantive law relates to matters outside the court. But Procedural law deals with matters inside courts.
11. Substantive law provides substance of law in the shape of statute. But Procedural law is the law of actions meanings by actions.
12. Procedural law is that branch of the law which governs the process of litigation. But

the entire residue is substantive law.

13. Substantive law is supreme in nature. But Procedural law is subordinate in nature.

Evidence in Customary law System

Justice has emanated from nature. Therefore, certain matters have passed into custom by reason of their utility. Finally the fear of law, even religion, gives sanction to those rules which have both emanated from nature and have been approved by custom.’ The linkages between people and nature are as old as humans themselves. Long before the rise of modern global society, communities throughout the world prospered by husbanding natural resources in an attempt to adapt to the local natural environment. In the process, a wide-ranging body of knowledge, innovations and practices evolved, inextricably linked to the use of natural resources. It enabled most communities to live within the limits of their local environment and contributed to shaping their cultural and spiritual identity as well. Any effort to conserve nature and ecosystems, therefore, must take into consideration the interface between nature and culture. Local communities, representing a significant part of India’s population, are rooted in their immediate environment and their social organization is woven round the management of their environment with their culture elaboration taking place primarily through interaction with the immediate natural environment. These communities depend on local natural habitats for their biomass needs and natural resources. They have depended on their immediate natural environment for their survival for long and consequently developed a stake in conserving the local resources base. As a result of long and continuous usage of natural resources, these communities have acquired a broad know-ledge base of the behaviour of complex ecosystems of their locality. ‘This cumulative body of knowledge and beliefs handed down through generations by cultural transmission about the relationship of living beings, including humans, with one another and with their natural environment,’ is the indigenous knowledge. The indigenous knowledge and belief system determined the cultural ethos, value system and worldview of the community. This worldview, treating man as a strand

in the web of life, was naturally conducive for nature conservation. This is indigenous wisdom. But the entire process had its origin in the ‘usage’ of natural resources. Law, which is the product of a rather complex process of socio-political organization was unknown, at any rate in its present sense in the ‘primitive’ ages when society was not, as at present, a collection of individuals but an aggregate of families. There was no king or sovereign to frame rules or set laws for families. One family was independent of another and followed its own head, whose will or pleasure was ‘law’ unto its own members. Only when the families expanded and evolved into a ‘community’ and ‘community’ into ‘society’ were rules and principles established for the guidance of members. And most of these rules and principles had their origin in the ‘usage’ or ‘practice’ of natural resources of the community. The long and continuous usage by the community of the natural resources of the locality evolved into customary practices. And when customary practice from long usage obtained the force of law, it becomes customary law. A clear understanding of this ‘process’ led the Roman thinker and philosopher Cicero to trace the origin of most of the social laws to nature. India was (and continues to be) a biomass-based civilization. The local communities of the independent ‘village republics’ of the 19th century had a locally defined physical environment and natural resources of their own to protect, care for, improve and sustainably use. People’s links to earth were simple and harmonious and the common natural resources were regulated through diverse decentralized community control systems. The forest was the home of compact tribal communities, like the Nilgiri Todas. Rural communities’ dependant on subsistence agriculture lived in organized villages. These agriculture based rural people depended on their neighborhood forests for a variety of products and services. It was a case of harmoniously integrating the domesticated rural economy with that of the natural ecosystems for the subsistence survival of the rural folks. Forests and other natural ecosystems were considered to be social commons of the locality. But the taking over of their forests and other village commons by the colonial

forces resulted in depriving the community access to and control over their ‘neighborhood nature-catchments reserves. Most of these forests were treated as reserve forests under the Indian Forest Act and the people found inside the forests were termed trespassers; further, the trespass was punishable under the said act. However, notwithstanding the statutory ban and bar, local communities continued to live in the forest and depended on non- timber forest produce for their survival. People were governed and guided by certain ground rules in the exploitation of non-timber forest produce. Traditional and customary practices in the usage of natural resources shaped the ground rules of sustainable use. On the rural-agricultural front, it was a subsistence economy. And for the compact forest communities it was more than mere survival dependence on their habitat, the forests. These communities had to use their terrestrial, marine and aquatic bioresearches for a variety of economic, cultural and religious purposes. The rich oral library of indigenous knowledge and cultural control processes had co-evolved with the customary use of natural resources, helping most of the communities avoid over-exploitation and live within the limits imposed by their availability. Self-imposed limitations on forest clearance, restriction on hunting, taboos on hunting or harvesting certain species, protection of sacred groves for religious reasons, rotational use of catchments areas (hunting and fishing reserves), lineal ownership of nature zones and use of appropriate local technologies which lower the impact of use or even increase biodiversity, are some examples of cultural controls. Traditional and customary practices of local communities in the usage of natural resources, on the whole, were conducive to the conservation of natural environment with minor exceptions. Ancient custom is generally regarded as providing a foundation for many laws in most systems of jurisprudence and for reasons grounded in principle and justice. In Indian jurisprudence, immemorial custom is not merely an adjunct of ordinary law but a constituent part of it. In Hindu law, immemorial custom has proprio vigore , the efficiency of law. Custom has its origin in usage. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality is entitled to exercise specific rights against certain other persons in the same locality.

There can be usage without custom, but no custom without usage. Usage is inductive, based on consent of persons in a locality. Custom is deductive, making established local usage a law. They are often used interchangeably though custom was originally confined to local usages immemorially existing. Custom, if the law is to uphold it as right, should be immemorial in origin, certain, reasonable in nature and continuous in use. Both national and international courts play an important role in the application of custom. The court by its imprimatur will attest the ‘jural quality’ of the custom. When a customary right is upheld by the court it becomes customary law. But to obtain that legal status, the custom must be ancient, certain and reasonable and, in derogation of the general rules of law, be construed strictly. A custom must be ancient, immemorial: The court of law recognizes only those customs that are prevalent from ancient times. A custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law. But the rigid standard of the English common law are not strictly applied to Indian conditions. All that is necessary to prove is that the usage has been in practice for a long period and with such invariability that it has by common consent been submitted to as the established governing rule of a particular locality. The right must be proved by clear evidence showing a continuous user as of right, nec ni nec clam nec procario. It should not have been exercised under permission. In a Madras case, the right to catch fish in a tidal river at a certain place by putting stakenets across the river was claimed on the basis of a custom and was held established as customary right of the locality on proof of thirty years use. Custom must be reasonable: A custom derives its validity from being reasonable at inception and present exercise. The Indian decisions are in harmony with the English authorities. Menoor v. Denne and Tyson v. Smith, which elaborate on the reasonableness of customs. A customary right, namely the right to take earth for making pots, was claimed by the kumbhar community of a village and upheld in the Nagpur case of Bhiku v. Shooram, though it was a case of profits. In State of Bihar v. Subodh Gopal (AIR 1968), the Supreme Court held that a customary right in the exercise of which the residents of a locality were entitled to excavate stones for purposes of trade (and not for

domestic or agricultural purposes) would ex facie be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the right. The custom was therefore unreasonable. Custom must be certain and invariable: The court will not recognise a custom as valid unless it is certain in its extent and mode of operation. The requirement that a custom should be certain is also expressed by saying that it should be definite, or that it should be invariable. Other features: ( i ) Customary rights are not public rights. Public rights are in favour of the general public at large, but a customary right is in favour of a limited section of the public, like the inhabitants of a village or members of a community. The way in which a public right arises is known as ‘dedication’. ( ii) Customary rights are rights partaking of some of the characteristics of an easement, but are not easements in the proper sense; customary rights are not appurtenant to a tenement but exist in gross, i.e., they are not for the beneficial enjoyment of a dominant heritage but exist for a personal benefit. Easements are private rights belonging to a particular person while customary rights are public in nature annexed to the place in general. Customary right are specifically excluded from the purview of the Indian Easement Act, 1882. When the courts in India recognised customary rights based on long usage, they become customary laws. These customary laws were the creation of Indian courts. Customary rights, by definition cannot be the creature of a written instrument. Neither were the principles of customary laws codified nor were the said customs listed out separately by legislation in India. However, customary rights were recognised as early as 1872, when the Indian Evidence Act was enacted. Section 13 of the act deals with the facts relevant for the proof of customary law. The Indian Forest Act 1927, under Sections 12 to 16 recognises rights to pasture and forest produce at the stage of settling rights before a given area of forest is classified as reserve forest. These rights are, no doubt customary rights. But these rights were seldom transformed into customary rights in the field. The reasons were twofold. Either the forest dependant communities were ignorant about their rights or the settlement officers, with their narrow and rigid pre-establishment mindset, were not inclined to grant such rights to the people. However, it should be

admitted that the early colonial legislations enacted over a century ago did recognize customary rights, though such legislations were very few. The Constitution of India, under Article 13, treats customary law along with other branches of civil law. A custom or usage if proved would be law in force under this article. These customary rights having the force of law can be taken judicial notice by courts under Section 57 of the Indian Evidence Act 1872. During the colonial era, Indian courts attempted to formulate a more rational legal framework into which the customary rights could be integrated. In the absence of guidance from any substantial legislative law, it was left to the courts to develop customary laws as a new branch of civil law. However, most of the decisions rendered by the courts in the context of customary laws related to either hereditary offices or religious ceremonies. Though areas like community commons, community conservation and the corresponding traditional resource rights (TRR) clearly came under the purview of customary rights, these issues were seldom brought before courts for adjudication. The reasons were not far to seek. All disputes relating to the issues were sorted out in community panchayats. Also, the community did not recognize the jurisdiction of any outside institution to preside over their community resource disputes. And on their part, the colonial courts, with their Anglo-Saxon jurisprudence orientation in respect of ownership issues, were unable to understand the complex issues of community ownership and the custodial association related with ownership. Custodial association is much more than community conservation of natural resources. Compact communities of India still have a concept of ‘custodial association’ with their community controlled natural commons. This man-nature relationship of custodial association represents the ‘best and highest’ in community conservation. This customary practice of local communities is well illustrated by the Toda tribe of the Nilgiris. The ancient pastoral Todas have lived on the upper plateau of the Nilgiris for centuries. They believe that they and their unique hill buffaloes were created on the Nilgiri hills (of Western Ghats) by their great Goddess Tokissay. The rolling mountain grassland with the shola forests in their fold was the homeland of Todas where they have grazed their buffaloes for generations. Many of the high peaks, shola forests and streams are in one way of another enshrined in their myths and legends and are sacred to the tribe.

Therefore, the Todas, who are vegetarians, would neither hunt animals nor till the earth for agriculture. Their association with their habitat was ‘custodial’ in nature. Their custodial association is a contribution of ‘custodial responsibility’ and ‘custodial right’ with endowments of nature. This custodial association is deeply rooted in their ethical philosophy. It would be incorrect to project this association only in terms of control over resources. Nature is not just an ensemble of resources; it is much more. This association is in the nature of custodial relationship among the members of a family. Todas are part of their habitat, a strand in the web of nature. This unique relationship was reflected in their use of natural resources and manifested in their traditional and customary practices. For the Todas it was more a ‘customary duty’ than a ‘customary right’. Little wonder, even the rigid Englishmen who set their foot on the Nilgiris, later recognised the customary rights of the Todas to their homeland. These rights were incorporated in the Tamil Nadu Forest Act 1882 as Toda Patta Lands by the colonial legislators, a right exercised by the unique Todas even today. Is there any scope for revival of customary law, which in turn can create some more space for community based conservation? The Convention on Biological Diversity (CBD) adopted at the Earth Summit (1992) brought conservation of biodiversity to global centre stage. The convention, which has been ratified by India, ordains that nations should respect, preserve and maintain knowledge, innovations and practices of local communities relevant for conservation and sustainable use of biodiversity. The Rio Declaration on Environment and Development, Agenda 21 and Forestry Principle – other soft declarations adopted at the Earth Summit – also encourage the promotion of customary practices conducive to conservation. The Constitutional 73rd and 74th Amendments are giant steps in regard to community conservation based on customary law. They pave the way for self-rule for local governments. Under Article 243G, state governments are required to devolve power and authority to local governments to enable them to function as institution of self- government with reference to matters in the 11th Schedule of the Constitution. Subjects, including social and farm forestry, soil and water conservation are listed out in the said schedule. The Panchayats (Extension to Schedule Areas) Act of 1996 mandates that

states shall not make any law under (Part IX of the Constitution), which is inconsistent with customary law, social and religious practices, and traditional management practices of community resources. The Supreme Court in M.C. Mehta v. Kamal Nath and others (1997-ISCC 388) had ruled that the ‘doctrine of public trust’ applies to natural ecosystems and the government as public trustee should protect the same for the benefit of the society at large and that private commercial and industrial establishments should not be allowed to misappropriate them. The judgement is a reassurance of peoples right to their commons. The common-land case of Karnataka represents another case of people’s resistance to the take-over of common property resources by the state for the benefit of commercial corporations.

Introduction to the British Principles of Evidence

Developments in the principles of civil evidence in nineteenth century in England The nineteenth century witnessed several significant changes in the rules of evidence by the English civil courts. In summary, the long–standing rules concerning testimonial competence were abolished, the rules of admissibility, particularly regarding hearsay, that had begun to develop in the eighteenth century developed yet further, and there was an increasing convergence of the rules of evidence between the different civil courts. Most of these changes appear to have occurred between approximately 1825 and

1875. The first and second of these changes have been examined in Chris Allen’s history of Victorian evidence law. The third change has recently been discussed briefly by Remco van Rhee, in relation to the broader question of whether there is a European procedural ius commune .My interest here is not in the detail of the changes in these rules of evidence, but in the broader picture of developments in the principles that British Academy Postdoctoral Fellow, University of Oxford this paper is part of research that I am undertaking on the Principles of Civil Evidence, funded by the British Academy. This is an historical part of a piece of evidence research, not an evidence part of a piece of historical research.

The task of extracting principles from rules is not straightforward, for any branch of law, and there is no established method for such a project. In addition, there are two further challenges specific to the identification of principles of civil evidence. The first is that nineteenth century civil evidence has received relatively little attention, and most of the work that has been done has focussed on evidence in the common law courts.^5 It is therefore necessary to do some ground work to establish what evidence law was, and how it developed, in the various civil courts in the course of the nineteenth century. The second challenge is that the rules of evidence overlap with the rules of procedure. Indeed, in many continental countries, such as France, the rules on evidence will be held in the procedural code. The nineteenth century is a period of significant procedural reform everywhere. There is therefore always a possibility that what may appear to us to be an evidential reform was really just incidental on a broader procedural Article 6(1) ECHR provides that ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…..’ Convention rights should be applied consistently across member states, subject to a margin of appreciation. However, there are particular difficulties in the application of Article 6 (‘the right to a fair trial’), since there is no consistent understanding of how evidence law should function Article 65(c) EC enables the Council to adopt ‘Measures in the field of judicial cooperation in civil matters having cross–border implications… in so far as necessary for the proper functioning of the internal market’. These measures ’shall include:… (c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States’. The concept of civil procedure should almost certainly be taken here in a broad sense to include evidence law, if only because this is the way in which the majority of member states classify evidence law domestically. Mindful of these challenges, this paper is divided into two sections. The first is a summary of the main changes to evidence rules, taking snapshots of practice in 1825 and 1875, and looking at a period of significant change during the 1850s. The second section considers what developments in evidential principles, if any, might explain these rule

changes. In particular, it examines the relationship between evidential and procedural reform. Four evidential principles are proposed that may have developed in the course of the century: first, cases should be decided on all available evidence that is relevant and reliable; secondly, parties should assist the court in achieving the accurate determination of facts; thirdly, oral party cross–examination is the most effective way to test the reliability of evidence; fourthly, the tribunal of fact should be suited to the type of facts involved. The origins of these principles, and their possible justifications, are discussed in the second half of the paper. The main change to evidence rules Let us begin by taking three snapshots of the rules of evidence in England in the nineteenth century. First, I take 1825 as an example of evidential practice at the start of the century, before the evidence reforms of the 1830s. I then consider 1875, straight after the implementation of the Supreme Court of Judicature Acts 1873 and 1875 (‘the Judicature Acts’), the last major change before the end of the century. My third snapshot is of the changes that occurred in the 1850s. This third snapshot is particularly important because it seems to be common to ascribe most of the evidential and procedural changes to the 1870s Acts. For example, Chorus has recently suggested that ‘the new forms of process [under the Judicature Acts]… must be regarded as the triumph of chancery, and thus the (i) At Common Law In 1825, actions at Common Law were commenced by a writ, which usually gave rise to ‘special pleading’. The parties would seek to identify a single factual issue on which the case would turn. Pleadings, which were not under oath, contained facts stated according to their legal effect and operation, rather than as they actually existed. Once the single factual issue had been identified, this could be put to a jury, with supporting evidence. But by 1825, it had become common to bring an action under the more flexible legal fiction of a writ of trespass or ejectment.This fiction allowed ‘general pleading’, which meant that parties did not have to narrow the issues, and could bring a whole factual argument to trial.

Evidence was given orally in open court before a jury, and witnesses were examined and cross–examined by the parties. The rules of admissibility had begun to take shape in the eighteenth century, and continued to develop in the nineteenth. Like admissibility, cross–examination was relatively new, developing in civil process in the final decades of the eighteenth century. The most striking feature of civil evidence at this time is that evidence could not be received under oath from parties to the action, their spouses, or those with any interest in the outcome of the case. (ii) In Chancery The rules of evidence and procedure in the Court of Chancery in 1825 had been adapted from the Roman–canon tradition. Summary Roman canon procedure was still used at this time in the ecclesiastical and admiralty courts. The plaintiff in Chancery issued a Bill, under oath, which would combine a statement of the facts on which relief was sought, interrogatories directed to the defendant, and requests for the disclosure of relevant documents. The defendant could issue a statement in response, and a counter– bill. The parties would then progressively respond to each other’s statements and interrogatories. This practice, known as ‘scraping the defendant’s conscience’, would either lead the opponent to admit the weakness of the case, and settle, or else reduce the number of facts in issue. The facts still in issue would then be put to witnesses, who would be examined in secret by an Examiner or Commissioner using pre–prepared interrogatories. Evidence would be recorded as depositions, which were all published together at the end of the evidence gathering phase. From 1875, under the Judicature Acts, an action commenced ‘by a writ of summons, which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action’. This was a simple statement, unlike the Chancery Bills that had gone before. Initially, there appears to have been some concern that this would mean that a writ would be accompanied by a detailed setting out of the facts, in the fashion of a Chancery Bill. Griffith, on the other hand, 17 saw this as simply a restatement of the unsuccessful provisions of section 2 of the Common Law Procedure Act 1852.However; it became clear that in practice the writ was the simple statement of facts that was intended. One important change under the Judicature Acts from the practice of Chancery Bills was that the plaintiff was no longer required to answer on oath.

The rules of evidence were fundamentally those of common law. Unless the parties agreed otherwise, witness testimony would be taken ‘vivâ voce and in open court’, using the common law practice of cross–examination. The use of juries was optional in all types of case, and a judge could refer a matter to a The old common law rules of admissibility applied. The judge did however retain a discretion ‘for sufficient reason’ to order that any particular fact be proved by affidavit. Discovery under the Rules of Court 1875 were a modified form of those previously existing at Common Law rather than in Equity. For example, following the Common Law practice, a judge could disallow an interrogatory unless he was satisfied that it was relevant, while in Equity the party was bound to answer unless he could show that the discovery sought was ‘immaterial’. Common law arguments about whether an interrogatory was relevant were made without oath in chambers rather than before the court.^23 While in Equity discovery was a lengthy process, that ran as part of Bill pleading, at Common Law it was a separate event, as it had been at canon law. c) Civil Evidence Reform in the 1850s The evidence rules of the Judicature Acts and the Rules of Court 1875 did not represent a dramatic break from common law and equitable evidential traditions. Rather, they built on reforms that had already been attempted in the 1850s. These reforms were largely inspired by attempts to make available to all courts those elements of procedure that were thought to represent what we might now call ‘best practice’. For example, in 1851 an anonymous writer in Charles Dickens’ (i) At Common Law A simplified common law writ system had been introduced in 1832 and 1833. At the same time, the New Pleading Rules of Hilary Term 1834 replaced general pleading with special pleading. This was a response to a concern that general pleading was requiring parties to prepare too many legal and factual issues for trial, and so adding to expense and delay. The concern was a valid one, but the remedy was ill–conceived, and civil justice rapidly became bogged down in baroque minutiae of special pleading. In 1852 the Common Law Procedure Act was therefore passed to reform the process, practice and mode of pleading. It effectively allowed a return to general pleading, and required parties

to plead the actual facts of the case, rather than the facts required to have the necessary legal effect In the thirty years between 1825 and 1855, the rules on testimonial competence were also radically reformed. Lord Denman’s Act of 1843 made substantial inroads into the rule against people testifying who had an interest in the outcome of the case, and also abolished the rules disqualifying people with certain criminal convictions. The Evidence Amendment Act 1851 (‘Lord Brougham’s Act’) made parties to civil proceedings competent in most cases. This reform was one of the most important in nineteenth century evidence law, (ii) In Chancery Meanwhile, in Chancery, the Court of Chancery Act 1852 sought to end the verbose nature of Bills, by requiring that every bill shall contain as concisely as possible a narrative of the ‘material facts, matters and circumstances’ upon which the plaintiff relied.^38 The Act also reformed the taking of evidence. Depositions were replaced in 1852 by a system of oral testimony or affidavits.^39 Oral examination took place in the presence of parties, counsel, solicitors or agents. In practice, however, parties agreed to use affidavits. Cross–examination and re–examination on an affidavit took place before an examiner in much the same way as had happened with depositions The 1852 Act enabled a judge in chambers to seek the assistance of experts. It may have been, as Beuscher has suggested, that the Act simply incorporated an existing power. This 1852 provision may be the power to which Sir Page–Wood, Vice– Chancellor, was referring when he said in 1860 that ‘in many cases he had availed himself of the privilege which was accorded to judges of the Chancery Court, of calling in disinterested witnesses in matters of Lord Cairn’s Act of 1858 gave Chancery the power to award damages as an alternative to specific performance. For this purpose, it introduced juries; at the discretion of the judge in the individual case. This measure was not widely adopted.

(iii) The Civilian Courts There was also significant civil evidence reform in the civilian courts of Probate and Admiralty in the 1840s and 1850s. The probate jurisdiction of the ecclesiastical courts was transferred to the new Court of Probate in 1857. The rules of evidence in Probate became those of the other courts at Westminster. This represented a marked change of practice, giving weight to evidence effectively excluded before, by the two witness rule, while excluding other evidence under admissibility rules. As with the Divorce Act 1857 (s 43), parties were entitled to use affidavits but rarely did so. The judge decided whether he would hear the case alone or with a jury. Evidence reform of the Admiralty Court had begun earlier than in the Ecclesiastical courts. This may have been because Admiralty was in a neglected Developing principles What principles, if any, lay behind the evidence rule reforms of the nineteenth century? With the possible exception of Bentham, contemporary law reformers seemed to have difficulties enunciating their guiding principles. For example, in 1850 John George Phillimore, wrote a History and Principles of the Law of Evidence. The book is an unstructured and largely anecdotal manifesto for evidence reform. When Phillimore does come to identify his principles, he stumbles, and never manages to produce a list. James Fitzjames Stephen fared a bit better in his 1872 Principles of Judicial Evidence ,but kept finding that he could not formulate any effective rules, for example about hearsay, that were not either too tight or too loose. This difficulty might have been resolved if Stephen had had access to a conceptual distinction between rules and principles. From studying the developments in the rules of evidence across jurisdictions in the course of the nineteenth century, I should like to propose four principles for civil evidence that developed in England at this time: first, cases should be Before exploring these principles, I should like to consider briefly my earlier methodological difficulty that many of these changes in the rules of evidence are fundamentally bound up with debate and changes surrounding questions of procedure and jurisdiction. By the 1840s, it was clear that there were conceptual and practical

difficulties with having multiple jurisdictions and forms of evidence and procedure. Parties had become adept at moving cases between courts in order to benefit from their different features. Thus many of the 1850s reforms were concerned with resolving procedural anomalies. These procedural reforms were not as effective as might have been hoped, and so the 1870s went further, and merged jurisdictions. This appears to have been almost a foregone conclusion by 1869, when the first report of the Judicature Commissioners appeared, analyzing the arguments, and proposing the solution, in a mere twenty pages. In part, the Judicature Commissioners were able to draw on the experience of the increasingly successful county court system: England was not unique in these difficulties. In 1848, the state of New York created a new supreme court, in which the jurisdictions of common law and equity were merged. This was principally work of the law reformer David Dudley Field. The ‘Field Code’ was based on extensive comparative research both in North America and Europe.A particular source for Field was the Louisiana Civil Codes of 1808 and 1825, which was strongly influenced by Spanish (and probably not French) civil law. In India, a Code of Civil Procedure in 1859 made no distinction between common law and equity, and the judge sat without a jury. The Code of Civil Procedure in India replaced a far more complex system than existed in England, since there were both Royal and East India courts, and the applicable law depended on the ethnic origin of the parties. American commentators would appear to have seen the Indian code as influenced by the New York code, but this is surely wrong, as the Indian Code was extensively civilian in its nature. Trials consisted of judges taking evidence, over a series of hearings, and producing New York and India appear, however, to have had little practical influence on English reform, despite Lord Brougham’s enthusiasm.The first report of the Judicature Commissioners, for example, referenced these reforms very much in passing. This suggests that they did not form a central part of the Commissioners’ deliberations. Phillimore suggested, as an aside to his general discussion of the need for law reform, that The Benthamites argued that no evidence should be excluded except where this was required to avoid preponderant delay, vexation and expense. For Bentham, writing on

evidence in the 1820s, the unwarranted exclusion of evidence was a fundamental corruption in the legal system. Bentham was cynical about lawyers, who he depicted as operating together as ‘Judge & Co’, arguing for the need for more lawyers. Bentham was not the only person at this time to suspect that much of the procedural mechanics of civil justice was driven by vested interests rather than higher goals such as truth and justice. For example, when it came to reforming the civil court system in the 1870s, the main arguments were over the number, responsibilities and remuneration of the judge. Chris Allen has rightly shown that Bentham’s role in nineteenth century evidence reform has often been exaggerated. That does not mean that it can be completed ignored. Some reformers, such as Lord Denman, were directly influenced by Bentham.^ Others may have been indirectly influenced, through the diffusion of ideas via Benthamite reformers, such as Cairns and Brougham, although whether Brougham should be considered a true Benthamite is questionable. Bentham’s influence was perhaps greater in North America. There are at least three possible explanations for admitting more evidence, through removing the rules on testimonial competence. The first is that people (presumably including parties and witnesses) were believed to be more truthful than they used to be. This reason, which may seem to us rather extraordinary, was given by Phillimore in his 1850 History of the Law of Evidence. The second reason is that people are able to evaluate facts more effectively than lawyers often give them credit for, and we can see this in the type of evidence that people rely on for everyday decisions. This is the reason given by Bentham. The third reason is that modern civil litigation requires us to take greater risks that an action will wrongly succeed. We might see this re–assignment of risk as a utilitarian argument, that is to say it is in the interests of society as a whole that we increase the likelihood of a defendant occasionally wrongly losing her case. The Roman–Canon position appears to have been that it is better to take the risk that there is an injustice in the world between individuals than it is for the court to risk wrongly exercising its authority over an individual. This would adversely affect the dignity of both the court and the wronged individual. Thus, in the Roman–canon tradition there were a lot of evidential burdens that one had to overcome in order for the court to reach a verdict. In particular, the court required full proof before it would act and it would be very cautious about what counted as

At the start of the nineteenth century, Common Law and Equity had markedly different ways of ensuring the reliability of evidence. At Common Law, only those with no interest in the case could testify under oath, and this testimony was oral, in open court, and subject to viva voce cross–examination. In Equity, the parties provided sworn evidence through Bill pleading. The examination of witnesses was then taken in secret before trial, and published to the parties and the court once all the evidence was collected. Full cross–examination was a relatively late development in the common law courts, perhaps coming at the end of the eighteenth century. However, from the end of the eighteenth century, in England and the United States, there seems to have been a consensus that cross–examination was the most effective way of getting to the truth. As early as 1789, the United States Congress mandated that Equity adopt the common–law approach to presenting testimony orally in open court. Bentham, seemingly critical of almost every other provision of English evidence law, thought that against erroneous or mendacious testimony, the grand security is cross–examination...’For Starkie it was ‘absolutely essential to the ascertainment of truth.’ Wigmore, writing in 1904, thought cross–examination to be ‘the greatest legal engine ever invented for the discovery of truth’, but was also aware of its ability, when misused, to defeat the discovery of truth.Cross–examination was

Bankers Book Evidence Act

Section 2A. Conditions in the printout A printout of entry or a copy of printout referred to in sub-section (8) of section 2 shall be accompanied by the following, namely:- (1) A certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and (2) A certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of:- (A) The safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised persons; (B) The safeguards adopted to prevent and detect unauthorised change of data;

(C) The safeguards available to retrieve data that is lost due to systemic failure or any other reasons; (D) The manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices; (E) The mode of verification in order to ensure that data has been accurately transferred to such removable media; (F) The mode of identification of such data storage devices; (G) The arrangements for the storage and custody of such storage devices; (H) The safeguards to prevent and detect any tampering with the system; (I) any other factor which will vouch for the integrity and accuracy of the system (3) A further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data. Section 4. Mode of proof of entries in Bankers' Books Subject to the provisions of this Act, a certified copy of any entry in a Banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise. If the entries on the books of account produced by bank are corroborated by Branch Manager and other bank officials, it is sufficient proof of loan transaction. Section 6. Inspection of Books by order of Court or Judge (1) On the application of any party to a legal proceeding the Court or a Judge may order that such party be at liberty to inspect and take copies of any entries in a Banker's Book

for any of the purposes of such proceeding, or may order the bank to prepare and produce, within a time to be specified in the order, certified copies of all such entries, accompanied by a further certificate that no other entries are to be found in the books of the Bank relevant to the matters in issue in such proceeding, and such further certificate shall be dated and subscribed in manner herein before directed in reference to certified copies. (2) An Order under this or the preceding Section may be made either with or without summoning the Bank and shall be served on the Bank three clear days (exclusive of Bank holidays) before the same is to be obeyed, unless the Court or Judge shall otherwise direct. (3) The Bank may at any time before the time limited for obedience to any such order as aforesaid either offer to produce their books at the trial or give notice of their intention to show cause against such Order, and thereupon the same shall not be enforced without further order. Important points (i) The bank has a statutory right under section 6 of the Act to object to any order directing inspection of their books though the order is made under section 91 of the Code of Criminal Procedure, 1973. (ii) The words “party to a legal proceeding” would enable inspection to be made only if such inspection was necessary for the “purpose of such proceeding”. In other words, there should be a main proceeding in which the Court might come to the conclusion that such inspection was necessary and it would only in such a proceeding that order could be passed for inspection. Section 8. Order of Court to be construed to be order made by specified officer Order of Court to be construed to be order made by specified officer. In the application of sections 5, 6 and 7 to any investigation or inquiry referred to in sub-clause (iii) of clause (4) of section 2, the order of a Court or a Judge referred to in the said sections shall be construed as referring to an order made by an officer of a rank not lower

than the rank of a Superintendent of Police as may be specified in this behalf by the appropriate Government. In this section, “appropriate Government” means the Government by which the police officer or any other person conducting the investigation or inquiry is employed. Section 77. Proof of documents by production of certified copies Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. Section 78. Proof of other official documents The following public documents may be proved as follows - (1) Acts, orders or notifications of the General Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government. By the records of the departments, certified by the heads of those departments respectively, or By any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative; (2) The proceedings of the Legislatures by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient Tavern are printed by order of the Government concerned; (3) Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government, By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer; (4) The Acts of the Executive or the proceedings of the Legislature of a foreign country. By journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;

(5) The proceedings of a municipal body in a State, By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published by the authority of such body, (6) Public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of an Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original and upon proof of the character of the document according to the law of the foreign country. Section79. Presumption as to genuineness of certified copies The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper. Section 80. Presumption as to documents produced as records of evidence Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be statement or confession by any prisoner or accused person taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken. Section 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents