Classification of Evidence

Introduction:

In a previous note, we discussed the meaning of evidence as information that is used to prove or disprove facts. In this note, we will discuss how evidence is traditionally classified under the law of evidence. The traditional classifications to be discussed are: real evidence, testimonial or oral evidence, demonstrative evidence, and documentary evidence. The note will then highlight some other classifications of evidence, such as circumstantial evidence and parole evidence, among others.

A. Traditional Classifications of Evidence:

1. Real Evidence:

Real evidence refers to physical evidence objects or objects that can be touched, seen, or smelt. For example, in a trial for murder, real evidence may include the murder weapon. According to Keane and Mckeown [1], “real evidence usually takes the form of some material object produced for inspection in order that the court may draw an inference from its own observation as to the existence, condition, or value of the object in question.” According to Dennis [2], real evidence is

a term used to refer to physical objects produced for the court’s inspection. When a factfinder acts on real evidence, it acts on its own perceptions of the nature and qualities of the object in question.

2. Testimonial or Oral Evidence:

These are statements (evidence) provided by witnesses made under oath. According to Dennis [2],

Testimony is the evidence of a witness, normally given on oath. 2 The sworn statements of the witness are offered to the court as evidence of the facts stated, in other words as statements that are true because the witness says they are. The term is often used to refer only to oral testimony in court, but in many types of civil proceeding a witness may give written testimony in the form of an affidavit.

Generally, before a person can testify as a witness, Section 60 of NRCD 323 requires that there be sufficient evidence to support a finding that he has personal knowledge of the matter. This has been explained to mean that a witness can only give evidence that he has perceived with one of his five senses: taste, touch, seen, smell, or hear. A witness who did not perceive the evidence himself through any of his five senses but comes to know of it through some other sources (such as someone else perceiving the evidence through his own senses), his knowledge would be said to be hearsay, which is generally irrelevant.

In the cases of Republic v. Dapaah [1968] GLR 513, testimonial evidence was used to prove that the accused had carnal knowledge of the complainant without her consent. In that case, the court stated that:

The evidence of the complainant directed to absence of consent on her part to the sexual intercourse is in my opinion amply corroborated so far as was possible in the circumstances, by the evidence of other witnesses called by the prosecution. I therefore accept her evidence and find that the prosecution has discharged the burden of proving its case beyond all reasonable doubt.

3. Demonstrative Evidence:

This refers to evidence in the nature of an explanatory aid, such as a chart, map, images, site plans, and some computer simulations, among others. Thus, they are often visual, graphic, or illustrative. For its illustrative purposes, demonstrative evidence is sometimes referred to as illustrative evidence.

A site plan, for instance, as a form of demonstrative evidence, may be used to depict the boundaries of a person’s land.

4. Documentary Evidence:

Per the Black’s Law Dictionary, documentary evidence is “evidence supplied by a writing or other document, which must be authenticated before the evidence is admissible.” Keane and Mckeown [1] characterised documentary evidence as “statements contained in documents.” Summarily, documentary evidence consists of evidence contained in documents such as a will or a written contract, among others.

B. Other Classifications of Evidence:

The literature on the classification of evidence also reveals that beyond the above broad categories, evidence may also be classified as circumstantial, hearsay, parole evidence, or scientific evidence, among others. These classes of evidence will be discussed in subsequent notes.