BASIC PRINCIPLES OF EVIDENCE

Impeachment is the practice of bringing out matters that attack a witness’s

credibility. In adversarial processes, the adverse party is usually entitled to offer
evidence to impeach the testimony or credibility of a witness during cross-
examination. However, because cross-examination is absent from inquisitorial
processes, impeachment is not an issue for civil law systems using inquisitorial
processes.

There are numerous ways an attorney might impeach a witness, but the most
common ways include efforts to show that the witness:

• Is influenced by bias or self-interest

• Has an impaired ability to observe

• Made prior inconsistent statements

• Has been convicted of a felony or serious crime

• Has a reputation for untruthfulness

Impeachment is the practice of bringing out matters that attack a witness’s

credibility. In adversarial processes, the adverse party is usually entitled to offer
evidence to impeach the testimony or credibility of a witness during cross-
examination. However, because cross-examination is absent from inquisitorial
processes, impeachment is not an issue for civil law systems using inquisitorial
processes.

There are numerous ways an attorney might impeach a witness, but the most
common ways include efforts to show that the witness:

• Is influenced by bias or self-interest

• Has an impaired ability to observe

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• Made prior inconsistent statements

• Has been convicted of a felony or serious crime

• Has a reputation for untruthfulness

In common law systems using adversarial processes, exhibits—the tangible objects

presented as evidence—will not be admitted as evidence unless they are relevant
and established as authentic. Thus, 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.

There are two basic types 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.

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 still 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. Relevant evidence also might be excluded if it is
subject to certain privileges. Thus, evidence of drug addiction technically might
be relevant to prove motive for embezzlement or fraud, but the judge still might
exclude the evidence if he believes that its probative value is outweighed by the
danger of prejudice to the defendant. Evidence of other crimes and acts that are
otherwise relevant also might be excluded for the same reason.

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Although the work undertaken by a fraud examiner may be protected by a
litigation privilege or other similar evidentiary protections, such as the attorney
work product doctrine, to receive protection, the work must be done in
anticipation of litigation and at the attorney's direction. Here, even if Black's work
was done at the attorney's direction, her work was not prepared in anticipation of
litigation because no litigation was actually planned. Therefore, the litigation
privilege does not cover the documents because they came into existence before
litigation was contemplated.

The admissibility of evidence depends, in large part, on the discretion of the

presiding judge, but a basic requirement of admissibility in common law and civil
law systems is that evidence must be relevant. Evidence is relevant if it tends to
make some fact at issue more or less likely than it would be without the evidence.

In common law systems using adversarial processes, exhibits—the tangible objects

presented as evidence—will not be admitted as evidence unless they are relevant
and established as authentic. Thus, 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.

In common law systems using adversarial processes, exhibits—the tangible objects

presented as evidence—will not be admitted as evidence unless they are relevant
and established as authentic. Thus, 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

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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 most likely methods of authenticating computerised records are:

• Testimony from a witness with personal knowledge (e.g., an authenticating

witness attests to the process by which the computerised records are created,
acquired, maintained, and preserved)

• Circumstantial evidence of distinctive characteristics (e.g., a person's business

habit is consistent with the document)

• Certified copies of business records (e.g., computerised records are

accompanied by custodian's written certification)

There are three basic forms, as distinguished from types, of evidence:

testimonial, real, and demonstrative. Testimonial evidence refers to the oral
statements made by witnesses under oath. Real evidence refers to physical
objects that played a part in the issues being litigated. Demonstrative evidence is
a tangible item that illustrates some material proposition (e.g., a map, a chart, or
a summary).

There are two basic types 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.

Evidence of other crimes, wrongs, or acts is not usually admissible to prove the
character of a person in common law jurisdictions. That is, such evidence is not
admissible to prove that the defendant is generally a bad person, and therefore is
likely to have committed the crime with which he is charged. For example, if a

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defendant is charged with stealing money from his employer’s safe, the
prosecution would not be permitted to offer evidence that the defendant had
previously stolen money from another employer to show the defendant had a
propensity to steal.

However, there are some uses of character evidence that may be admissible
because they are offered for a purpose other than showing character. One such
exception is using such evidence to show that the accused had the ability and
means of committing the crime (i.e., the possession of a weapon, tool, or skill
used in the commission of the act).

In common law systems using adversarial processes, exhibits—the tangible objects

presented as evidence—will not be admitted as evidence unless they are relevant
and established as authentic. Thus, 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.

In general, authentication of a writing consists of establishing who authored the

document. Depending on the document and situation, this is done in one of
several ways: 1) the author testifies and claims authorship; 2) a witness testifies
to seeing the author write the document; 3) with handwritten letters, a witness
verifies the author’s penmanship; 4) with typed or machine-written documents,
the witness verifies the author’s signature; 5) a witness testifies that the contents
of the document point decisively to the author. These and many other document
issues might require the participation of a questioned documents expert.

If evidence is subject to change over time, or is susceptible to alteration, the

offering party might need to establish that the evidence has not been altered or
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changed from the time it was collected through its production in court. This is
done by establishing a chain of custody. Thus, the chain of custody can be an
important factor in establishing authenticity.

The chain of custody is both a process and a document that memorialises 1) who
has had possession of an object and 2) what they have done with it; it is simply a
means of establishing that there has not been a material change or alteration to a
piece of evidence.

Legal professional privileges are not absolute; they are subject to waiver. Because
these privileges only protect confidential communications, the protection they
provide will be waived for communications disclosed to third parties who have
little or nothing to do with the client’s pursuit of legal representation because
such disclosures demonstrate a lack of confidentiality.

Generally, waiver occurs when the client, who holds the privilege, voluntarily
discloses (or consents to or encourages someone else disclosing) any significant
part of the privileged communications. Although the client holds the privilege, the
privilege can be waived by the client’s attorney or a third party—someone who is
neither the attorney nor the client.

Litigation privileges and other similar evidentiary protections, such as the

attorney work product doctrine, protect materials that are prepared in
anticipation of litigation. Thus, they apply only to documents and things prepared
in anticipation of litigation or for trial.

These protections prevent the disclosure of communications made and documents

prepared for the purpose of litigation. Consequently, the protections they afford
may extend to communications of, and documents created by, third-party agents
(e.g., consultants or fraud examiners) in preparation for litigation.

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If evidence is subject to change over time, or is susceptible to alteration, the
offering party might need to establish that the evidence has not been altered or
changed from the time it was collected through its production in court. This is
done by establishing a chain of custody. Thus, the chain of custody can be an
important factor in establishing authenticity.

The chain of custody is both a process and a document that memorialises 1) who
has had possession of an object and 2) what they have done with it; it is simply a
means of establishing that there has not been a material change or alteration to a
piece of evidence.

There are two basic types 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.

Generally, litigants involved in cross-border litigation should not expect to have

the privilege laws from their own jurisdiction applied when engaged in litigation
abroad. There are several reasons for this. First, courts are more inclined to apply
their own privilege law because they are more familiar with local law than the
laws of foreign jurisdictions. Second, characterisations and conceptualisation of
privileges vary among different countries. For instance, common law jurisdictions
typically view privileges as the right of the client, but civil law jurisdictions do
not. In civil law jurisdictions, communications are protected by secrecy laws that
require confidentiality.

Direct evidence is evidence that tends to prove or disprove a fact in issue directly,
such as eyewitness testimony or a confession. The testimony of someone who saw
the defendant committing the crime would be considered direct evidence in a
misappropriation trial. Alternatively, witness testimony about a suspicious
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situation in which the defendant was involved would be considered circumstantial
evidence, as would testimony that a defendant deposited $2,000 into his account
on the same day that $2,000 was stolen. Circumstantial evidence is evidence that
tends to prove or disprove facts in issue indirectly, by inference.

Legal professional privileges protect the communications between a professional

legal advisor (e.g., solicitor, barrister, or attorney) and his clients. These
privileges are designed to encourage open and honest communications between
legal professionals and their clients, and they go by many names depending on the
jurisdiction (e.g., attorney-client privilege legal advice privilege, or solicitor-
client privilege).

The requirements for the application of these privileges vary among jurisdictions,
but generally, the following elements must be present for communications
between an attorney and his client to be protected by a legal professional
privilege:

• A communication between a legal professional and a client

• The communication was made to seek or give legal advice

• The parties intended the communications to be confidential

To be protected under a legal professional privilege, it is typically not necessary

that the communication take place after a lawsuit has been filed.

There are three basic forms, as distinguished from types, of evidence:

testimonial, real, and demonstrative. Testimonial evidence refers to the oral
statements made by witnesses under oath. Real evidence refers to physical
objects that played a part in the issues being litigated. Demonstrative evidence is
a tangible item that illustrates some material proposition (e.g., a map, a chart, or
a summary).

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The rise of global markets and multi-jurisdictional transactions have resulted in an
increase in disputes that span multiple jurisdictions, and the privileges that are
available vary substantially by jurisdiction. There are no standardised rules of
privilege for litigation in cross-border disputes, and in some cases, there will be
conflicting rules of privilege. For example, the litigants in a cross-border dispute
might be required to disclose information in one jurisdiction that is protected by
privilege in another jurisdiction. Accordingly, there is a lack of standardisation
and predictability with respect to privileges in cross-border litigation, and
privilege law is a key source of uncertainty for litigants in cross-border disputes.

Generally, litigants involved in cross-border litigation should not expect to have

the privilege laws from their own jurisdiction applied when engaged in litigation
abroad. There are several reasons for this. First, courts are more inclined to apply
their own privilege law because they are more familiar with local law than the
laws of foreign jurisdictions. Second, characterisations and conceptualisation of
privileges vary among different countries. For instance, common law jurisdictions
typically view privileges as the right of the client, but civil law jurisdictions do
not. In civil law jurisdictions, communications are protected by secrecy laws that
require confidentiality.

There are two basic types 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.

There are three basic forms, as distinguished from types, of evidence:

testimonial, real, and demonstrative. A photograph can be either demonstrative
evidence or real evidence. Real evidence describes physical objects that played a
part in the issues being litigated. The term includes both documentary evidence—
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such as cancelled cheques, invoices, ledgers, and letters—as well as other types of
physical evidence. Demonstrative evidence is a tangible item that illustrates some
material proposition (e.g., a map, a chart, or a summary).

Accordingly, a photograph can be real evidence if it was part of the underlying

event, or it can be demonstrative evidence if it was created specifically for the
trial.

Legal professional privileges are not absolute; they are subject to waiver. Because
these privileges only protect confidential communications, the protection they
provide will be waived for communications disclosed to third parties who have
little or nothing to do with the client’s pursuit of legal representation because
such disclosures demonstrate a lack of confidentiality.

Generally, waiver occurs when the client, who holds the privilege, voluntarily
discloses (or consents to or encourages someone else disclosing) any significant
part of the privileged communications. Although the client holds the privilege, the
privilege can be waived by the client’s attorney or a third party—someone who is
neither the attorney nor the client.

Additionally, privilege might be lost if the client, the attorney, or a third party
carelessly or inadvertently discloses confidential communications to an outside
party. That is, even inadvertent disclosure can result in a waiver of privilege.

Legal professional privileges are not absolute; they are subject to waiver. Because
these privileges only protect confidential communications, the protection they
provide will be waived for communications disclosed to third parties who have
little or nothing to do with the client’s pursuit of legal representation because
such disclosures demonstrate a lack of confidentiality.

Generally, waiver occurs when the client, who holds the privilege, voluntarily
discloses (or consents to or encourages someone else disclosing) any significant
Page 10 of 14
part of the privileged communications. Although the client holds the privilege, the
privilege can be waived by the client’s attorney or a third party—someone who is
neither the attorney nor the client.

Although legal professional privileges only apply to confidential communications

between a legal representative and his client, in most jurisdictions, the protection
afforded by these privileges extends to communications with third-party
consultants hired to help provide legal advice to the client (e.g., fraud examiners,
accountants, bankers, or other expert). Thus, waiver does not occur when an
attorney shares privileged information with an outside consultant hired in a role
that concerns the client’s pursuit of legal representation and when the
communication was made for the purpose of effectuating legal representation for
the client.

The primary reason for maintaining the chain of custody on an item of evidence is
to establish that the evidence has not been altered or changed. If evidence is
subject to change over time, or is susceptible to alteration, the offering party
might need to establish that the evidence has not been altered or changed from
the time it was collected through its production in court. This is done by
establishing a chain of custody. Thus, the chain of custody can be an important
factor in establishing authenticity.

The chain of custody is both a process and a document that memorialises 1) who
has had possession of an object and 2) what they have done with it.

There are three basic forms, as distinguished from types, of evidence:

testimonial, real, and demonstrative. Testimonial evidence refers to the oral
statements made by witnesses under oath. Real evidence refers to physical
objects that played a part in the issues being litigated. Demonstrative evidence is
a tangible item that illustrates some material proposition (e.g., a map, a chart, or
a summary). Demonstrative evidence differs from real evidence in that
Page 11 of 14
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.

In common law systems using adversarial processes, exhibits—the tangible objects

presented as evidence—will not be admitted as evidence unless they are relevant
and established as authentic. The authentication requirement serves to ensure
that evidence is what it purports to be. That is, authentication serves to ensure
that documentary and physical evidence is proven to be genuine and not a
forgery.

Evidence of other crimes, wrongs, or acts is not usually admissible to prove the
character of a person in common law jurisdictions. That is, such evidence is not
admissible to prove that the defendant is generally a bad person, and therefore is
likely to have committed the crime with which he is charged. For example, if a
defendant is charged with stealing money from his employer’s safe, the
prosecution would not be permitted to offer evidence that the defendant had
previously stolen money from another employer to show the defendant had a
propensity to steal.

The rise of global markets and multi-jurisdictional transactions have resulted in an

increase in disputes that span multiple jurisdictions, and the privileges that are
available vary substantially by jurisdiction. There are no standardised rules of
privilege for litigation in cross-border disputes, and in some cases, there will be
conflicting rules of privilege. For example, the litigants in a cross-border dispute
might be required to disclose information in one jurisdiction that is protected by
privilege in another jurisdiction. Accordingly, there is a lack of standardisationand
predictability with respect to privileges in cross-border litigation, and privilege
law is a key source of uncertainty for litigants in cross-border disputes.
Page 12 of 14
Generally, litigants involved in cross-border litigation should not expect to have
the privilege laws from their own jurisdiction applied when engaged in litigation
abroad. There are several reasons for this. First, courts are more inclined to apply
their own privilege law because they are more familiar with local law than the
laws of foreign jurisdictions. Second, characterisations and conceptualisation of
privileges vary among different countries. For instance, common law jurisdictions
typically view privileges as the right of the client, but civil law jurisdictions do
not. In civil law jurisdictions, communications are protected by secrecy laws that
require confidentiality.

Legal professional privileges are not absolute; they are subject to waiver. Because
these privileges only protect confidential communications, the protection they
provide will be waived for communications disclosed to third parties who have
little or nothing to do with the client’s pursuit of legal representation because
such disclosures demonstrate a lack of confidentiality.

Generally, waiver occurs when the client, who holds the privilege, voluntarily
discloses (or consents to or encourages someone else disclosing) any significant
part of the privileged communications. Although the client holds the privilege, the
privilege can be waived by the client’s attorney or a third party—someone who is
neither the attorney nor the client.

Litigation privileges and other similar evidentiary protections, such as the

attorney work product doctrine, protect materials that are prepared in
anticipation of litigation. Thus, they apply only to documents and things prepared
in anticipation of litigation or for trial.

These protections prevent the disclosure of communications made and documents

prepared for the purpose of litigation. Also, the protections they afford may
extend to communications of, and documents created by, third-party agents (e.g.,
consultants or fraud examiners) in preparation for litigation.
Page 13 of 14
The litigation privilege arises once litigation is reasonably anticipated.
Accordingly, communication is only privileged under the litigation privilege if
litigation was contemplated at the time the communication was created.
Therefore, the privilege does not cover documents that came into existence
before litigation was contemplated.

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