Teaching Documents by Duncan Kiboyye Okoth-Yogo
2024 Kiboyye's Penology' Security & Administration Lectures, Moi University's School of Arts & Social Sciences, 2024
Law of evidence define facts that are useful in validating legal assertions as distinguished fro... more Law of evidence define facts that are useful in validating legal assertions as distinguished from those that are excluded. The law recognizes the facts that are omitted from proof or that which may be proved. It proceeds from exclusionary rules than inclusionary provisions. The subject matter includes how the facts may be proved, whether by oral or documentary evidence, by which these facts may be proved, standard and burden of proof. Generally in legally cases, the standard of proof in criminal is beyond reasonable doubt while in civil matters the standard of proof is on a balance of probability. Law of evidence is ‘Lex Fori'. It is governed by the laws of country whereby the proceedings take place.
The Law of Evidence is concerned with facts of a given case and means of proving them. These include state of facts or relation of things capable of being preserved by senses, mental condition of which any person is conscious, any material object, and material facts like demeanor of a person. The state of thing must therefore state the relation which these facts bear to each other. Ordinary fact is anything which has been said or done or which can be presented by any of the five senses.
Facts open to proof are facts in issue, relevant facts and collateral facts. Prof. Cross opines that facts in issue are those facts, which the plaintiff in a civil case or prosecution in a criminal case must establish in order to be successful. They also include any fact a defendant or an accused must establish to succeed in defense. Stephens digest on law of evidence provides that fact is relevant to another fact if the former fact render the existence or non-existence of the later fact more or less probable. It can therefore be said to be genuine issues of the trial. Collateral facts are of three kinds. First are those facts that affect the competence of a witness. Competence of witness refers to the ability of a witness to testify. Secondly, facts that affect the credibility of a witness. Thirdly, facts, which must be proved as, condition precedent to the admissibility of a certain items of the evidence.
Philosophical perspectives
The philosophy of the common law of evidence is grounded in its adversarial system, which balances the pursuit of truth with procedural fairness to protect the rights of the accused. Distinct from the inquisitorial approach of civil law systems, the common law model relies on exclusionary rules enforced by a neutral judge to manage evidence presented to the court.
Truth ought to be balanced with fairness. A foundational tension exists between the pursuit of an accurate, epistemic, outcome and the protection of fair trial rights. While the ideal outcome is that the guilty are convicted and the innocent are acquitted, the common law prioritizes protecting the innocent and maintaining the integrity of the process, even at the cost of excluding relevant information. The European Court of Human Rights, for instance, has reinforced this balance by limiting the use of unreliable evidence, such as unexamined statements used as the sole basis for a conviction.
An adversarial process is the corner stone of common law trials. The parties to a case, typically represented by lawyers, are responsible for investigating, gathering, and presenting evidence. This battle of wits is overseen by an impartial judge. This system is philosophically distinct from the inquisitorial approach, where a judge takes a more active role in investigating the facts of the case.
In common law countries where they have jury systems, there is separation of roles between judge and jury. The common law system historically evolved with a strict division of labor between the judge and the jury. The judge acts as a neutral referee, deciding questions of law, such as whether evidence is legally admissible. The jury, composed of laypersons, is the "trier of fact" and assesses the evidence presented to determine guilt or liability.
The philosophy of evidence is deeply influenced by the common law's reliance on judicial precedent (stare decisis). Rules of evidence have gradually evolved through individual court decisions rather than a formal codified system. However, modern common law countries have increasingly incorporated statutory law and codified rules of evidence. Early common law theorists believed that the law was based on common reason and long-standing custom. While this was later critiqued, the idea that law evolves from and is refined by practiced reasoning is a central tenet of common law philosophy.
The common law's distinctive use of exclusionary rules, which bar certain types of logically relevant evidence, is a key philosophical feature justified by several policy goals:
• Reliability: The classic rationale, put forth by scholars like Wigmore, is that rules such as the hearsay rule or the ban on evidence of bad character exclude information that is potentially unreliable, confusing, or misleading.
• Protecting against prejudice: Some rules prevent evidence that might unduly prejudice or distract the jury from the central issues of the case. A car accident victim's history as a "liar, cheater, and womanizer," for example, would likely be excluded as unfairly prejudicial.
• Protecting extrinsic social policy: The law of evidence also excludes information to serve policies outside the courtroom, such as the protection of confidential relationships and legal privileges. Examples include attorney-client privilege, spousal privilege, and the exclusion of evidence obtained through illegal searches and seizures.
• Controlling the adversarial process: The rules ensure that zealous advocates do not prioritize "winning" over accurately determining the facts. This compels lawyers to present the most reliable evidence available.
The rules governing the burden and standard of proof are central to the philosophy of evidence, as they reflect a society's values about risk distribution and fairness. The common law places the burden of proof on the party making a claim. In a criminal case, the prosecution bears the burden of proving the defendant's guilt. This reflects the presumption of innocence. In a civil case, the plaintiff must prove their case. The common law applies different standards of proof depending on the gravity of the case. Beyond a reasonable doubt is the highest standard, required for the prosecution to secure a criminal conviction. It reflects the value placed on avoiding wrongful convictions. Balance of probabilities / Preponderance of the evidence is the standard in civil cases, where a claim must be shown to be "more likely than not" true.
In recent decades, common law evidence has evolved with new philosophical considerations. To begin with, there has been shifts from rules to reasons. Some modern jurisdictions have moved away from strict, traditional exclusionary rules towards allowing judges more discretion to evaluate the reliability and prejudicial effect of evidence on a case-by-case basis. This shift often involves focusing on the reasoning behind admitting or excluding evidence rather than relying solely on rigid rules. Further, evidence theory now draws heavily from other disciplines, such as epistemology, psychology, statistics, and critical legal studies, to analyze and reform evidentiary rules. Then, international human rights standards have increasingly influenced common law evidence. For instance, the emphasis on ensuring a "fair trial" in criminal proceedings has led to the development of evidentiary protections, such as requiring equal access to evidence and legal counsel.
Background of Evidence Act
The Evidence Act has its origin in the Indian Evidence Act 1872. The Indian act was enacted to codify and simplify the English law of evidence. It was thought necessary due to the low calibre of magistrates that the Indian Judicial Services attracted. During the 1889 East African Order-in-Council, provision was made for creation of consular courts to exercise jurisdiction as far as circumstances permitting upon principals of and in conformity with substantive law at the time being in force in England. The 1897 East African Order in Council repealed the earlier one and stated that jurisdiction of High Court should be exercised in conformity with certain Indian enactment's. The Indian Evidence Act of 1872 was one. The Kenyan Evidence Act 1963 repealed the Indian Act but did not contain any radical departure from Indian legislation. The current Evidence Act is the 2010 version.
The Act recognizes African customary law and polygamy. It also consolidated various other provisions, which had been enacted in other Acts, like sections 57, 127, 156 which were, hitherto in the Criminal Procedure Code.
Discussions under this chapter are divided into two sections. Part one discusses the different varieties of the law of evidence. Section two grapples with the principles employed thereof.
Moi University Law Lectures
LAW, ITS PEDAGOGICAL AUTONOMY AND THE LEGAL PROFESSION
D. Kiboyye Okoth-Yogo
INTRODUCTION
In a... more LAW, ITS PEDAGOGICAL AUTONOMY AND THE LEGAL PROFESSION
D. Kiboyye Okoth-Yogo
INTRODUCTION
In a 2009 professorial inaugural lecture, Professor Akong’a asserted that “for an area of study to be considered a discipline, it should claim subject matter and methodology to which others don’t lay claim”. He was referring to anthropology. However, he made sense of the broader “subject autonomy”. Law can be looked at in the same vein. One of the remarkable things about the study of law is the conflict and consensus on the question of its pedagogical purity in relation to interdisciplinarity.
Arguably, pedagogical purity and interdisciplinarity are not opposites. By discussing them in one breath, a dialectical bubble is not fanned. This is because great legal education must encompass holisticism. Great readings of anthropology, sociology, religion, literature, history and philosophy makes one develop great scholastic courage and deep insights into unique constructions of various aspects of law, or application of law to various sets of social, economic, political and environmental phenomena. Appreciation of the scientific world, social and natural, turns a lawyer into a useful member of the society. Such lawyer can apply his great mind into working with other experts in developing useful legislation, polices, strategies and programs for progress. Humane attitude in a lawyer is also good for connecting with the people served, and the greater universe, creating a common ground where focus on understanding human challenges, solutions and cumulative phenomena and circles is revered. Mastery of languages turns a lawyer into a great artist. He can use his great knowledge of language to design great relationship deeds, provide that unequivocal touch that dispute resolution processes so much cherishes and wangle that timeless piece of legislation, treaty, legal policy…
A first degree in some liberal education followed by a law degree that delves into both professional training and philosophical orientation is in order. Such lawyers would not only bring to the profession sound practical skills but also compelling jurisprudence and ethics.
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Teaching Documents by Duncan Kiboyye Okoth-Yogo
The Law of Evidence is concerned with facts of a given case and means of proving them. These include state of facts or relation of things capable of being preserved by senses, mental condition of which any person is conscious, any material object, and material facts like demeanor of a person. The state of thing must therefore state the relation which these facts bear to each other. Ordinary fact is anything which has been said or done or which can be presented by any of the five senses.
Facts open to proof are facts in issue, relevant facts and collateral facts. Prof. Cross opines that facts in issue are those facts, which the plaintiff in a civil case or prosecution in a criminal case must establish in order to be successful. They also include any fact a defendant or an accused must establish to succeed in defense. Stephens digest on law of evidence provides that fact is relevant to another fact if the former fact render the existence or non-existence of the later fact more or less probable. It can therefore be said to be genuine issues of the trial. Collateral facts are of three kinds. First are those facts that affect the competence of a witness. Competence of witness refers to the ability of a witness to testify. Secondly, facts that affect the credibility of a witness. Thirdly, facts, which must be proved as, condition precedent to the admissibility of a certain items of the evidence.
Philosophical perspectives
The philosophy of the common law of evidence is grounded in its adversarial system, which balances the pursuit of truth with procedural fairness to protect the rights of the accused. Distinct from the inquisitorial approach of civil law systems, the common law model relies on exclusionary rules enforced by a neutral judge to manage evidence presented to the court.
Truth ought to be balanced with fairness. A foundational tension exists between the pursuit of an accurate, epistemic, outcome and the protection of fair trial rights. While the ideal outcome is that the guilty are convicted and the innocent are acquitted, the common law prioritizes protecting the innocent and maintaining the integrity of the process, even at the cost of excluding relevant information. The European Court of Human Rights, for instance, has reinforced this balance by limiting the use of unreliable evidence, such as unexamined statements used as the sole basis for a conviction.
An adversarial process is the corner stone of common law trials. The parties to a case, typically represented by lawyers, are responsible for investigating, gathering, and presenting evidence. This battle of wits is overseen by an impartial judge. This system is philosophically distinct from the inquisitorial approach, where a judge takes a more active role in investigating the facts of the case.
In common law countries where they have jury systems, there is separation of roles between judge and jury. The common law system historically evolved with a strict division of labor between the judge and the jury. The judge acts as a neutral referee, deciding questions of law, such as whether evidence is legally admissible. The jury, composed of laypersons, is the "trier of fact" and assesses the evidence presented to determine guilt or liability.
The philosophy of evidence is deeply influenced by the common law's reliance on judicial precedent (stare decisis). Rules of evidence have gradually evolved through individual court decisions rather than a formal codified system. However, modern common law countries have increasingly incorporated statutory law and codified rules of evidence. Early common law theorists believed that the law was based on common reason and long-standing custom. While this was later critiqued, the idea that law evolves from and is refined by practiced reasoning is a central tenet of common law philosophy.
The common law's distinctive use of exclusionary rules, which bar certain types of logically relevant evidence, is a key philosophical feature justified by several policy goals:
• Reliability: The classic rationale, put forth by scholars like Wigmore, is that rules such as the hearsay rule or the ban on evidence of bad character exclude information that is potentially unreliable, confusing, or misleading.
• Protecting against prejudice: Some rules prevent evidence that might unduly prejudice or distract the jury from the central issues of the case. A car accident victim's history as a "liar, cheater, and womanizer," for example, would likely be excluded as unfairly prejudicial.
• Protecting extrinsic social policy: The law of evidence also excludes information to serve policies outside the courtroom, such as the protection of confidential relationships and legal privileges. Examples include attorney-client privilege, spousal privilege, and the exclusion of evidence obtained through illegal searches and seizures.
• Controlling the adversarial process: The rules ensure that zealous advocates do not prioritize "winning" over accurately determining the facts. This compels lawyers to present the most reliable evidence available.
The rules governing the burden and standard of proof are central to the philosophy of evidence, as they reflect a society's values about risk distribution and fairness. The common law places the burden of proof on the party making a claim. In a criminal case, the prosecution bears the burden of proving the defendant's guilt. This reflects the presumption of innocence. In a civil case, the plaintiff must prove their case. The common law applies different standards of proof depending on the gravity of the case. Beyond a reasonable doubt is the highest standard, required for the prosecution to secure a criminal conviction. It reflects the value placed on avoiding wrongful convictions. Balance of probabilities / Preponderance of the evidence is the standard in civil cases, where a claim must be shown to be "more likely than not" true.
In recent decades, common law evidence has evolved with new philosophical considerations. To begin with, there has been shifts from rules to reasons. Some modern jurisdictions have moved away from strict, traditional exclusionary rules towards allowing judges more discretion to evaluate the reliability and prejudicial effect of evidence on a case-by-case basis. This shift often involves focusing on the reasoning behind admitting or excluding evidence rather than relying solely on rigid rules. Further, evidence theory now draws heavily from other disciplines, such as epistemology, psychology, statistics, and critical legal studies, to analyze and reform evidentiary rules. Then, international human rights standards have increasingly influenced common law evidence. For instance, the emphasis on ensuring a "fair trial" in criminal proceedings has led to the development of evidentiary protections, such as requiring equal access to evidence and legal counsel.
Background of Evidence Act
The Evidence Act has its origin in the Indian Evidence Act 1872. The Indian act was enacted to codify and simplify the English law of evidence. It was thought necessary due to the low calibre of magistrates that the Indian Judicial Services attracted. During the 1889 East African Order-in-Council, provision was made for creation of consular courts to exercise jurisdiction as far as circumstances permitting upon principals of and in conformity with substantive law at the time being in force in England. The 1897 East African Order in Council repealed the earlier one and stated that jurisdiction of High Court should be exercised in conformity with certain Indian enactment's. The Indian Evidence Act of 1872 was one. The Kenyan Evidence Act 1963 repealed the Indian Act but did not contain any radical departure from Indian legislation. The current Evidence Act is the 2010 version.
The Act recognizes African customary law and polygamy. It also consolidated various other provisions, which had been enacted in other Acts, like sections 57, 127, 156 which were, hitherto in the Criminal Procedure Code.
Discussions under this chapter are divided into two sections. Part one discusses the different varieties of the law of evidence. Section two grapples with the principles employed thereof.
D. Kiboyye Okoth-Yogo
INTRODUCTION
In a 2009 professorial inaugural lecture, Professor Akong’a asserted that “for an area of study to be considered a discipline, it should claim subject matter and methodology to which others don’t lay claim”. He was referring to anthropology. However, he made sense of the broader “subject autonomy”. Law can be looked at in the same vein. One of the remarkable things about the study of law is the conflict and consensus on the question of its pedagogical purity in relation to interdisciplinarity.
Arguably, pedagogical purity and interdisciplinarity are not opposites. By discussing them in one breath, a dialectical bubble is not fanned. This is because great legal education must encompass holisticism. Great readings of anthropology, sociology, religion, literature, history and philosophy makes one develop great scholastic courage and deep insights into unique constructions of various aspects of law, or application of law to various sets of social, economic, political and environmental phenomena. Appreciation of the scientific world, social and natural, turns a lawyer into a useful member of the society. Such lawyer can apply his great mind into working with other experts in developing useful legislation, polices, strategies and programs for progress. Humane attitude in a lawyer is also good for connecting with the people served, and the greater universe, creating a common ground where focus on understanding human challenges, solutions and cumulative phenomena and circles is revered. Mastery of languages turns a lawyer into a great artist. He can use his great knowledge of language to design great relationship deeds, provide that unequivocal touch that dispute resolution processes so much cherishes and wangle that timeless piece of legislation, treaty, legal policy…
A first degree in some liberal education followed by a law degree that delves into both professional training and philosophical orientation is in order. Such lawyers would not only bring to the profession sound practical skills but also compelling jurisprudence and ethics.