Evidence of the Law by Gary Lawson download in ePub, pdf, iPad
Privilege rules give the holder of the privilege a right to prevent a witness from giving testimony. Most civil-law countries do not permit any exceptions, while other countries, such as Germany, permit written statements by witnesses in special cases and with the consent of the parties. These include the military tribunals in the United States and tribunals used in Australia to try health professionals.
In continental European countries and those other countries that derive their law from them, this system has generally been retained for criminal proceedings. According to continental European law, the accused is neither a party nor a witness. This, naturally, also applies to the wife.
This burden depends on the substantive law governing the claim. In Swedish law, for example, the parties must solemnly declare that they have told the truth. For the most part, they do not testify concerning facts but draw inferences from them.
This type of protection derives either from privilege, or from the right to refuse to give evidence, either case distinguishable from incapacity to testify. This is naturally the most direct evidence, since the objects in question are inspected by the judge or jury themselves.
They stood as guarantees for his oath but never gave any testimony about the facts. In Anglo-American practice the witness is sworn in before testimony. Continental law follows the medieval method, by attributing a certain value as evidence to particular documents, which is binding on the judge.
In this system, the parties and their attorneys are primarily responsible for finding and presenting evidence. If, during the hearing of witnesses, irrelevant questions are put, they are rejected after the adversary has objected to them. The burden of proof The burden of proof is a manifold and somewhat ambiguous concept in the law of evidence. Clergymen are likewise under obligation to refuse to answer questions concerning information given them in the secrecy of the confessional by believers.
In Anglo-American law the problem of free evaluation of evidence can be understood through the institution of the jury. Under both the inquisitorial and the accusatorial systems, the principle of direct interrogation is of special importance in the free consideration of evidence. The first, which follows what may be called the inquisitorial principle, had its origins in medieval Roman-canonical proceedings. The same result follows in German or Swedish courts. The judicial machinery destroyed by dropping these sources of evidence could not be replaced by the oath of purgation alone.
Attorneys are considered to be under an obligation to refuse to testify about confidential communications with their clients. Though the effectiveness of such an act has certainly diminished in secular societies, this appeal to God has for centuries been considered the surest means of obtaining truth. Nonrational sources of evidence The appeal to supernatural powers was, of course, not evidence in the modern sense but an ordeal in which God was appealed to as the highest judge. With a few exceptions, they are treated in Anglo-American law as ordinary witnesses and are brought before the court by the parties in the same manner as other witnesses. These abuses were nourished by the notion that the confession was the best kind of evidence and that reliable confessions could be obtained by means of torture.
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