Evidence and Practice (Paper 10)

What is evidence?
The Oxford Advanced Learners’ Dictionary of Current English (6 th Edition) assigns
two meanings to the word “evidence”.
(a) “The facts, signs or objects that make you believe that something is true.” or
(b) “The information that is used in a court of law to try to prove something”
“Something” mentioned in both definitions - vague and therefore wide i.e. evidence is
a very wide area.
Legal Definition:
At law, evidence is generally defined to include all the facts, documents, materials,
objects, statements and any other legal means that may be used to establish a matter in
issue. In other words, evidence broadly means all things that tend to prove or disprove
a fact in issue. Evidence is anything that can prove or disprove a matter in issue.
Thus evidence is extremely wide. The main problem is how to apply the principles of
evidence to particular types of evidence available. For practical purposes, evidence is
categorized to help us know how to apply these principles to the evidence we have.
Categories of Evidence:
(a) Direct Evidence: This refers to facts that are actually perceived by a witness using
one or more of that witness’s five senses i.e. sense of sight. smell, hearing,
hearing, feeling (or touch) and taste.
In the courtroom, this category of evidence is referred to in order to distinguish it
from circumstantial or indirect evidence and hearsay evidence, which categories
attract more strict rules of admission as evidence. The courts are easily persuaded
by direct evidence. It is the strongest form of evidence - but note, not all people
perceive things in the same way - a person from Chilubi Island coming to Lusaka
for the first time will perceive e.g. the speed of traffic very differently from a
Lusaka resident. Blind people will have heightened or enhanced other senses to
compensate for their visual impairment. As a lawyer it is important to know how
to use the perceptions of your witnesses to further/support your case.
(b) Real Evidence: This category refers to material objects that can be produced or
shown to the court for inspection during trail e.g. assets, cash, cars, houses, farms
(the court can be taken to site e.g. to see if the beacons have been moved),
samples, sketch plans, maps, scars etc. The courts are easily persuaded by this
type of evidence, particularly when a connecting link to the matter in issue is
established.
(c) Best or Original Evidence: This category is also referred to as primary as opposed
to secondary evidence, and refers to original and authenticated documents, video
and audio tapes, DVDs etc. as opposed to photocopies, carbon copies, duplicates
and pirated video/audio tapes, DVDs etc. In practice this category distinguishes
between superior or primary evidence (as it is the “best”) from inferior evidence.
The courts attach more weight to superior/ primary evidence as against inferior or
secondary evidence. The latter may only be admissible upon proof that the
original is lost, destroyed or in the possession of someone else outside jurisdiction.
When bringing secondary evidence you must ask the witness “foundation”
questions to show how the original was lost/destroyed etc. i.e. “Is this the
original?” “Why is it not?” “Where is the original?”
(d) Circumstantial Evidence: This category refers to evidence of facts from which a
fact in issue can be deduced. Although the court in criminal cases may convict on
the basis of VERY STRONG AND COMPELLING circumstantial evidence i.e.
there can really only be one logical conclusion drawn from the circumstantial
evidence, the courts are generally very reluctant to do so unless the evidence is
corroborated or supported by some other independent evidence. Thus,
circumstantial evidence, while admissible, is generally suspect and inconclusive
unless it is strong and compelling and/or corroborated. E.g. skid marks on the
wrong side of a road that were made immediately before an accident. This is
evidence that one of the drivers was on the wrong side of the road and traveling
fast from which other facts can be deduced i.e. the driver of that car was in the
wrong. Can be corroborated by a police sketch of the scene1.
(e) Hearsay Evidence: This category refers to evidence of a witness who relates what
he was told by another person, who is not available to the court, but who may
have perceived the event in issue or to obtain the information from another source.
This type of evidence may also be found in the contents of documents, letters,
statements, opinions, declarations, etc. [Hearsay rule: hearsay is not admissible
EXCEPT - i.e. there are exceptions to the rule. hearsay evidence is intrinsically
unreliable as people’s perceptions of what other people told them may differ from
each other and from what was actually meant by what was told to them.] Hearsay
evidence is the most restricted category of evidence and as a general rule is not
admissible in court. Where it has been admitted it can lead to a mistrial and much
valuable time and resources are lost. There are latent dangers with using hearsay
evidence as the “whispering game” shows. However, it should always be
remembered that the rule against hearsay evidence is a general rule, not an
absolute or strict rule, and there are exceptions and exemptions. E.g. hearsay
contained in public documents e.g. title deeds where the persons drawing up the
original deeds are long since dead but where a certificate of title is taken as
conclusive proof of title/ownership. Also, many statutes provide for the admission
of this type of hearsay evidence e.g. The Evidence Act Cap 43 and The
Evidence (Bankers Books) Act Cap 44. Thus documentary hearsay evidence in
Banker’s books is admissible but, in both criminal and civil cases, you have to
obtain a court order first before it can be admitted. [Note: a “banker” is not a bank
teller but more senior banking professionals.] Thus hearsay evidence may be
admitted at the discretion of the court or it may have to be admitted under the
provisions of a statute. However, these are very limited situations: exceptions –
expert opinion evidence, dying declarations, similar fact evidence, public records,
business records, informed lay opinion based on perceived facts or data which a
witness cannot be expected to verbalise in court.
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Note: Zambia does not have an Evidence Code unlike most other countries, although a draft code was
prepared in the 1990s. This makes life difficult and there are over 50 Acts that deal with evidence e.g.
National Assembly Act has sections relating to the proof of matters laid before the Assembly and it
uses very different principles of evidence from those used by courts of law. Supreme Court Act - the
“slip rule” - the SCZ can admit new evidence. All this uncertainty makes the rules of evidence in
Zambian Courts unpredictable. See Judge Phiri’s paper to State Advocates on the shortcomings of
evidence e rules in Zambia [2005]. There is an Evidence Act (Cap 43) but it has only 9 sections and is
very poor. Section 2 does usefully define a “document” as “Document includes any device that records,
stores or disseminates information”. This brings IT into Zambian law. This is the age of IT, terrorism,
hackers, cell phones and other electronic gadgets and the evidence rules must keep pace with these new
realities, as they are doing e.g. in UK. See: SCZ judgment on computer generated evidence in the
Pilatus Engineering case.
(f) Other Types of Evidence: In everyday language, there are a of other types of
evidence that are mentioned e.g. oral evidence, forensic evidence, computer
generated evidence, scientific evidence, documentary evidence, etc. In practice, all
these terms actually refer to evidence that falls in one way or another into the
above five categories already referred to above. The advocate has to develop the
skills to identify (i) the issues in the case, (ii) what evidence he has and (iii) what
principles are applicable to this evidence as the various types of evidence are not
fully distinct from each other but overlap i.e. hearsay evidence in the form of a
document.
The Evidence Act Cap 43 - defines the word “document” and provides for the
admissibility (rules of admissibility) of documentary evidence and trade, business or
provisional records in criminal cases.
The Evidence (Bankers Books) Act Cap 44 - Essentially this Act provides for the
mode of proof entries in banker’s books, the mode of verification, the orders that a
court can issue to inspect a banker’s book and the restriction of disclosure by a banker
or an officer of a bank.
The Application of the Rules of Evidence between categories
The most important point for counsel to remember always is that there is a distinction
to be made between the application of the rules of evidence relating to the production
and admission of evidence. Further, there is a distinction in the weight to be attached
to admitted evidence that falls within each of the above categories/sub-categories.
First: Identify the matters in issue
Second: What evidence do you have pertaining to each matter?
Third: Assess the evidence to ascertain if it has the sufficient:
(a) standard2 and (b) weight to use in your case
E.g. a court can convict on the basis of one witness giving direct evidence so long as
that witness’s testimony is clear and satisfactory in all respects. Otherwise it has to be
supported/corroborated by other corroborating, independent evidence. What is “clear
and satisfactory” is a ripe area for cross-examination. This, each type of evidence has
its own rules of application. However, for all categories there are four general
standards that have to be satisfied for the production and admission of evidence.
General Standards Applicable to all Categories of Evidence.
Counsel has to show that the evidence he presents to court conforms to these general
standards through questions to witnesses and their answers to these questions.
(a) That the proposed evidence is relevant. This rule can be very complex in
practice. E.g. in rape cases, there is the defence of consent. Defence lawyers
use private investigators to get evidence on the complainant, to show that the
complainant is “liberal” or “loose” and so cast doubt on her accusation of a
non-consensual sexual relationship with the defendant. The question raised
here is how far should this go? Can the defence raise anything relating to the
complainant’s sexual history? What is relevant and what is not? Similarly, the
complainant can raise evidence from the defendant’s past showing a
disposition to high sexual activity. In each case counsel has to be industrious.
(b) That the proposed evidence is authentic/genuine.

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Proves the matter beyond reasonable doubt in criminal cases, on a balance of probabilities in civil
cases.
 (c) That the proposed evidence is from a competent source. This is very
important as, if the source is incompetent, the evidence is unreliable. See CPC
on spouses, family members etc.
(d) That the proposed evidence was at one time or another in the custody of the
witness. I.e. the witness had access to it, otherwise it is hearsay.
Note: these standards give protection to both sides/parties in a trial.
Exhibits
Exhibits are evidence and every advocate must know how to manage exhibits both
before and during trial. Exhibits in any trial (criminal or civil) must invariably fall
into one or more or more of the five categories of evidence and their sub-categories.
In other words, the basic rules of evidence relating to production and admission
before court must always be applied i.e. there must be proof of (i) competence, (ii)
relevance, (iii) authenticity and (iv) custody. Failure of such proof will render the
exhibit inadmissible and it will be discarded or have no probative value to your case.
Proof of competence etc. is obtained through the advocate by his examination of
witnesses through which exhibits are invariably introduced into court. Thus to
establish the competence of a witness to testify ask:
1. What is your name?
2. What is your age3?
3. What is your address
4. What is your occupation?
For expert witnesses:
5. As a state pathologist what do you do?
6. How long have you been a state pathologist?
7. Where did you qualify as a state pathologist?
These are “foundation” questions that must be asked in an examination in chief first to
establish competence, relevance, authenticity and custody of witnesses and their
exhibits. Exhibits and witnesses go hand in hand as exhibits are brought to court
through the examination of witnesses.
The trial court will and must always exercise reasonable control over the proceedings.
However, the convenience or order of presenting witnesses and their exhibits always
remains with the advocate who must balance that convenience or order with the
primary objective of presenting evidence including exhibits in a logical and easily
understood fashion. [Should not coach witnesses]. The advocate must plan the order
of calling witnesses and their exhibits to best demonstrate the flow of his case. Thus,
the investigating officer has exhibits “post facto” i.e. after the fact. Do not call
him/her first. He/she should be called much later after others have been called to give
credence to the exhibits connected to their testimony. It is also good for the first
witness to be a very strong witness for your case to take the steam out of the other
side and set a good momentum for your case.
The rules and sub-rules relating to the mode of proof (e.g. no leading questions) or
order of examination of witnesses are too numerous to list here but suffice to say that
these rules and sub rules are designed to achieve the following:
(i) To have the questioning of witnesses and the presentation of their exhibits
effective in order to assist the court to ascertain the truth.
(ii) To avoid needless consumption of time.

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To establish e.g. that the witness is over 18.
(iii) To protect the parties in a dispute including accused persons and their witnesses
in criminal cases from harassment or undue embarrassment or prejudice.
[Note: pleadings define the issues in a civil case before trial so as to save time at trial.
Information from the DPP serves the same purpose in criminal trials.]
An examination of the many attendant rules reveal that the whole issue of the
admission of exhibits as evidence can be reduced to two practical questions which
must at all times be resolved by each advocate and by the court.
Question One: Is this individual item of evidence admissible?
In resolving this question, the advocate must ensure that the court is persuaded to
make the following findings:
(a) That the item originates from a competent source.
(b) That the item is logically relevant – in order to qualify as logically relevant:
a. The evidence must have some logical connection to the facts in dispute
or matters in issue in the case. I.e. the evidence must have a tendency
(connection) in reason to increase or decrease the probability that one
of the disputed facts exists. I.e. the evidence must be material.
b. The evidence must be authentic
(c) The evidence, including exhibits, must be legally relevant. To resolve the
question of whether evidence is legally relevant the following sub-questions
must be resolved:
a. Are there internal probative dangers that outweigh the probative value
of the evidence that can tempt the court to decide on an improper
basis? What is probative danger? E.g. is the evidence unduly
prejudicial, embarrassing, time consuming or distracting (red herring)
to the court.
b. Is there some extraneous reason to exclude the evidence or exhibit e.g.
lawyer/client privilege, the witness is a spouse etc.
Question Two: When considered cumulatively (i.e. in toto) are all the items of
evidence sufficient to prove the fact is issue.
In other words, is there sufficient probative value in the evidence to support the
judgment in a particular way. Although, strictly speaking, this question is ultimately
resolved by the court, each advocate in the case must try to persuade the court to
resolve the question of the sufficiency of evidence in his/her favour on behalf of the
client.
How Evidence is Presented in Court
An outline of the steps an advocate should take in order to introduce any item of
evidence and to make it admitted into court is as follows, but note that if you have
agreed bundles in a civil case these steps are not needed. If however the bundles are
not agreed, and in criminal cases, you need to follow the following steps. Steps 1 to 3
are steps relating to the production of exhibits, steps 4 and 5 relate to the admission of
exhibits into evidence:
Step One:
The advocate must make the witness say something about the intended exhibit after
which the party proposing it shows the intended exhibit to the opposing advocate.
Step Two:
The intended exhibit must be handed over or shown to the witness by the party
proposing it. In turn the witness must be made to specifically refer to the intended
exhibit, without announcing
Step Three:
The advocate must ensure that the witness sufficiently identifies the intended exhibit
after which the intended exhibit must be marked with some unique
mark/symbol/number to identify it. In Zambia the following are used “ID 1”, “ID 2”,
“ID 3” etc. Whilst some judicial officers expect the advocate to make an application
to have an exhibit marked as such, this should not be necessary, so long as the court is
satisfied that the witness has sufficiently identified it.
Step Four:
The proposer of the intended exhibit must lay the necessary evidential foundation for
its admission as evidence. Depending on what the intended exhibit is and how it fits
into the trial, the advocate must establish through the witness(es) the necessary
foundation for its admission into evidence. At the minimum the evidential foundation
must include the following:
(a) Authenticity i.e. the exhibit is what it purports to be.
(b) Custody i.e. that at one time or another, or at the current time, the witness had
custody of the exhibit. Note: Exhibits are produced by the witnesses who have
custody of them.
(c) Relevance i.e. the exhibit tends to prove or disprove one of the propositions in
the case or any matter in issue.
(d) If the intended exhibit is a document, that it is not hearsay and that it does not
contain hearsay.
(e) If the intended exhibit is a document, that it is the best or primary evidence. If
it is secondary, it must be shown that primary evidence is unavailable.
Step Five:
The proposer of the intended exhibit must offer it into evidence. The magic question
is “Do you wish to produce this item as part of your evidence?” Thus step is simple
but also easily forgotten. [Similarly, if an information is change and a new plea to the
new charge is not taken by the court, this can be grounds for nullifying the
proceedings/appeal]. The item will then be admitted into evidence if there s no
objection and it will then be marked with an exhibit number e.g. “Exhibit P1”,
“Exhibit P2”, “Exhibit P3” etc. Note: if one intended exhibit is not admitted e.g.
because of a successful objection, and was identified as, say, “ID 2” omit “Exhibit
P2” from your numbering of exhibits as this will avoid confusion, especially if there
are many intended exhibits and admitted exhibits.
Step Six:
Objections to the admission of items as exhibits must be made, argued and decided
upon soon after the offer is made.
Step Seven:
If he item is admitted as evidence that exhibit or relevant portion of it will be read out
and published in the court room by the witness who offered it. The exhibit will then
remain part of the court record and must then be considered by the trial court in the
final analysis.
Documentary Evidence - Primary and Secondary, Public and Private.
Evidential challenge of documentary evidence. Section 2 of the Evidence Act Cap 43
defines the word “document” as follows:
“Any device by means of which information is recorded or stored and books, maps,
plans and drawings”
It is important to see the elements of proof to ensure that the evidence is admitted.
Public documents normally require no authentication \. In contrast, execution of
private documents must normally be proved by strict proof i.e. calling the author(s) to
testify as to the truth of the document or calling attesting witnesses or proof by
handwriting or proof by signature. How is authenticity to be shown? Handwriting or
signature are proved by one of the following methods:
(a) calling the writer or
(b) calling a witness who saw the document being written or signed, or
(c) calling someone who is acquainted with the handwriting i.e. a secretary,
friend, family member etc.
(d) comparison of handwriting and signature by an expert, or
(e) by admission of the parties i.e. where parties agree.
Note: Comparison of handwriting and signature by an expert is called a forensic
expert. Handwriting tools and tool mark experts.
Sleep rule: only rule allowing the Supreme Court to take fresh evidence in a matter
already decided. Involved a Travel Agency whose managers were deported on false
documents (forged deportation order) and their business obtained by fraud.
Besides proof of execution, the contents of the document must be proved by primary
or original documentary evidence. I.e. you have to have the originals to prove the
contents. By primary evidence we mean the production of the original documents in
court. However, secondary evidence may, in certain circumstances be allowed. These
circumstances include the following:
(a) Where the original document is shown/proved to have been lost or destroyed.
(b) Where it is inconvenient or physically impossible to produce the original
document - but must lay the foundation for admittance of secondary evidence.
(c) Where the original document is held/is in possession of a stranger to the
proceedings who rightly refuses to produce it on grounds of privilege. (A non
privileged stranger may be compelled to produce the document under a
subpoena duces tecum (a compulsion to produce a document) or by a
summons to witness.)
(d) Where the original document is held or is in the possession of the opposing
party who refuses to produce it after a notice to produce is issued and filed.
The foundation for admitting secondary evidence is the notice to produce.
[Note: A notice to produce requires the opposing party to produce the original
document in court. However, a notice to produce can only be used in a trial
without pleadings but you want the other side to produce an original document
during trail. If there are pleadings then documents should have been obtained
during the pre-trial exercises of discovery and inspection.]
(e) Where the proceedings are interlocutory or preliminary i.e. proceedings are in
chambers - secondary evidence may be admissible as most evidence is by way
of affidavit. [Note: chamber applications commenced by summons or
originating notice of motion with supporting affidavits. Affidavits have to be
answered - they “fight” each other. Note also, you can challenge the certified
record of the court by affidavit. If the judge/magistrate does not respond to the
affidavit, through another affidavit in opposition, the challenging affidavit will
succeed. All witnesses who notice that the record is incomplete must file an
affidavit]
Where the contents of a public document must of necessity to be proved (e.g. a public
document is alleged to be a forgery - see travel agent case where deportation order
was forged), these may be proved by the production of an examined copy by a witness
who compared it with the original or by production of a copy certified by a public
officer who has had charge of the original. In addition there are a number of statutes
that provide that where a document is produced purporting that it is from a certain
public office, the document will be accepted as evidence whether or not it has been
certified or authenticated in the usual way. In this category are documents that bear
the signatures of magistrates, judges, the DPP, the Attorney General, the
Commissioner of Lands, the Registrar of Lands, a coroner, a medical doctor,
Government Gazettes, State Pathologists etc.
In summary there are four usual methods of proving private documentary evidence.
Cases:
Grant v. S.W. and Co. Properties Ltd. [1975] CH 185; [1976] All ER
Derby and Co. Ltd. V No. 9 [1981] 2 All ER 901
Shamwana v The People [1981] ZR 44, 111
H and Another v Scherring Chemicals Ltd. and Another [1983] All ER 839
Augustine Kakembwa v. D. Mabolwa and Attorney General [1981] ZR 127
Methods of Proving Private Documents
1. Production of documents that speak or prove themselves. I.e. documents that
require no evidence to prove what they are or their origins. E.g. production of
a written contract where the contract between the parties is the issue.
2. Strict proof. I.e. calling the maker or author to identify the document or a
witness to its being made or executed, or where the author or witness to its
being made/executed cannot be found, by calling a handwriting expert.
3. Admission or agreement as to the documents by the parties through their
pleadings or in default of pleadings, in criminal cases, through confessions.
4. By court orders. I.e. where the court has discretionary powers to issue such
orders e.g. under ss. 6,7,8 of the Evidence (Bankers Books) Act. Cap. 44.
Presumptions and Judicial Notice
These are two additional methods of proof i.e. under certain circumstances, counsel
can establish facts otherwise than by evidence.
Judicial Notice
The trail court can, at the invitation of counsel, and sometimes must, take judicial
notice of certain matters that are so notorious. Lord Denning: “Facts that are so
notorious such as the difference between night and day.” Matters that can be taken
judicial notice of include (a) the law; (b) procedure; (c) statutes; (d) diplomatic or
other privileges; (e) matters of the Constitution; (f) political and administrative
matters; (g) customs/customary law (power to appoint assessors - Chibesakunda
Chieftainship case, customary marriage issues); (h) other matters of common
knowledge ranging from the course of nature to the Highway Code and which side of
the road cars drive in Zambia c.f. DRC.
Presumptions
These are also an alternative method of proof where they apply. It is worth noting that
the law provides for some presumptions, whereas others are provided by practice.
Presumptions provided for by law are generally irrebuttable, unless otherwise
provided, whereas presumptions of practice are rebuttable. There is a wide range of
circumstances that give rise to presumptions of both types. These include:
1. Presumption of innocence - until proved guilty in a court of law – from the
Constitution - the highest form of presumption
2. Presumption of sanity
 3. Presumption of lawful marriage - upon proof of co-habitation
4. Presumption of legitimacy - upon proof of marriage of parents
5. Presumption of death - under proof of absence for 7 years.
Statutory Presumptions e.g. in the Penal Code and CPC
S. 200 of the Penal Code relates to the offence of murder and you need “malice
aforethought”. Malice aforethought deemed (i.e. presumed) to be present if one or
more of 4 facts set out in section 204 the Penal Code are proved.
Also forgery in s. 342 of the Penal Code - there must be an intention “to defraud or
deceive”. Intent to deceive is presumed to be present if facts in s. 344A can be proved
and intent to defraud is presumed to be present if facts in s. 345 can be proved.
Also Corrupt Practices Act - offences in s. 29 and presumptions of corrupt intentions
set out in s. 46.
Conventional Business Documents and Computer Generated (Unconventional)
Business Documents
An area of production of documentary evidence that must be mentioned is the
distinction between conventional business records and computer generated records.
An increasing number of cases require this latter type of evidence. As discussed
above, all documentary must generally be authenticated in order to qualify for
admission as evidence in a court of law. Proof of authentication is a necessary
foundation for admission. In practice, authenticating an ordinary business record is a
relatively simple matter, though often and easily mishandled. An examination of
decided cases on this type of evidence shows that proof of proper custody is
sufficient authentication for such records and thus a sufficient foundation for its
admission as evidence. It is thus sufficient for a witness to be made to show, through
questions and his answers to them during examination in chief, that:
(a) He/she was privy to the business in question;
(b) He/she is familiar with the business’s filing system for such documents;
(c) The record shown to the court was taken from the correct file; and
(d) The witness recognizes and identifies the intended exhibit as the record that
was taken from the correct file.
Computer generated (unconventional) business records4 on the other hand require a
more complex foundation in order to prove that they are authentic. This if so for a
number of reasons:
(a) The process of storing, processing and generating data/documents by
computer is beyond the understanding of most people.
(b) Unlike ordinary records that can be physically stored in files, cabinets, etc.
computer generated records are not so filed and there is no difference between
the original printout of the document and copies made subsequently. Thus
there is no distinction between primary and secondary computer generated
evidence and between copies and duplicates. There is no way of telling which
document came first from the printer unless the document itself is
programmed through the computer to tell you e.g. through a “footer”.
(c) This type of evidence is relatively new and has developed subsequent to the
time when the main principles of the law of evidence were propounded.

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Consider a computer as a very expensive and intelligent pencil that can be used by many people for
both legal and illegal purposes.
There are two methods of proof of this type of evidence. The first and easiest is
through judicial notice (but a proper foundation for this has to be made). This is so
simply because computers and computer related devices are so widely used and
accepted such that the proposer of such evidence will not normally need to establish
the validity of the machine’s underlying theory and the reliability of the actual
machine or instrument used5. This approach is widely used in developing jurisdictions
such as Zambia because of the simplicity of the method of proof. There has been a
reluctance and a laxity in these jurisdictions in applying the full authentication
requirement to computer generated records. Instead both the courts and the bar have
been content with proof of mere custody of both the computer and the computer
generated evidence and proof that the business, firm or individual has successfully
used a computer system to generate such records that now are offered as evidence.
In more complex litigation, the first method of proof becomes completely inadequate.
For this reason it is essential that both the courts and the bar follow and apply the
developments in this area of documentary evidence from the more advanced
Commonwealth jurisdictions. A study of cases in those jurisdictions shows that this
type of evidence requires mush more extensive proofs before it qualifies for
admission as evidence. The proposer of computer-generated evidence is required to
lay the necessary foundation to authenticate the evidence by, inter alia, the following:
(a) Proof that the particular computer used is reliable;
(b) Proof that the data or information input procedures are dependable;
(c) Proof that proper procedures were followed in order to obtain the read out or
print out (e.g. passwords and/or other access protocols).
(d) Proof that the read out or print out before the court has distinctive features of
recognition either in format or content (e.g. font, style, company “headers and
footers”, signatures, initials etc.)
(e) If the read out or print out cannot be interpreted by a lay person or the court
due to some symbols or terminology, then the proposer must call an expert
witness in the area concerned to explain to the court the meaning of the
symbols/terminology before the document can be offered and accepted into
evidence.
The purpose of these rules is to eliminate the possibility of admitting faked evidence.
One demand of justice in both criminal and civil procedure is that any possibility of
admitting and relying on fabricated evidence or evidence that has been grossly
interfered with by a party intending to rely on it is eliminated.
Objections and Motions
Objections and motions always accompany evidence. There are two main types under
both criminal and civil law regimes. The first are pre-trial objections and motions and
the second are objections and motions made during trial. [Post trial motions (but not
objections) are permissible if they are clearly provided for by the law. The most
common one a Motion to Arrest Judgment, whether under the CPC/Archibald
(criminal) or under the Supreme Court Rules (civil).

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Note: evidence involving machines e.g. tape recordings. There are two basic foundations to lay i.e.
that the underlying process of generating the tape or document is valid and correct and second that the
actual machine used to produce the tape or document is reliable. If you are counsel questioning such
machine-generated evidence, attack these two foundations i.e. the process used and the machine used.
Bomb scarce case in 1990s: many tapes used to produce one tape with the suspects voice on it. Did not
bring the actual machine used to tape and edit the tapes to court to prove its reliability nor did not
establish the validity of the actual process used to do the taping/editing. Evidence was not admitted.
Pre-trial motions must always be accompanied by an affidavit while motions made
during trial are made orally (viva voce) i.e. counsel rises to make his objections and
then his motion indicating what he wants to be done. Pre-trial objections however, do
not usually require an affidavit but are usually contained in a Notice of Intention to
Object that, in civil cases, is usually incorporated in the bundles of documents as they
are being prepared and indicate that a party will object to the admission of a document
at trial. Objections can also be made to the court and to the other side and can be
made by a Notice to Raise Preliminary Issues. Where an objection is raised through a
Notice, it is advisable that the Notice be accompanied by a statement of facts by way
of an affidavit.
The Requirements of an Objection or Motion are as follows:
Each one of them must be:
(a) Reasonable
(b) Specific - stating clearly what is objected to and why and what is asked for
(c) Timely - not too early or too late - this depends on circumstances.
(d) Made with Courtesy to the trial court.
The practical approach to raising a god objection can therefore be summarized as
follows:-
(a) The advocate making the objection addresses (with courtesy) the court i.e. a
magistrate (your Honour or Worship), judge in chambers (Judge) or judge in
open court (My Lord/Lady).
(b) The advocate indicates that he is raising an objection that may be on an issue
of procedure/format (e.g. a leading question in examination in chief) or a
substantial objection to the content of the evidence offered into court by the
other side (e.g. it is hearsay). The aim of the objection is to prevent unfair
evidence from being heard against your client.
(c) The advocate making the objection specifies clearly what he is objecting to i.e.
the particular word(s), phrases, or questions etc. The objection must be
specific so that the court is clear on what it must make a ruling (and the other
side must first be allowed to respond to the objection and so also must be clear
what is being objected to).
(d) The maker of the objection must specify the legal ground(s) for the objection
i.e. the evidentiary doctrine that is being violated by the other side, again so
that the court and the other side know what to respond to.
(e) The maker of the objection specifies the motion that he wants the court to
make e.g. to quash the evidence being tendered before it. The maker is
inviting the court to make a very important interlocutory ruling and it must
hear both sides before doing so. An error may well be the basis of an appeal or
mistrial being declared.
Revision
Evidence - its nature (anything that tends to prove or disprove a fact in issue) and
categories of evidence. Know how to apply the rules of evidence to the 5 main
categories and their sub-categories.
(a) Direct evidence - perception - the strongest form of evidence - but perceptions
vary.
(b) Indirect/Circumstantial evidence - stricter rules for admissibility - strong and
compelling - only one logical conclusion can be drawn from it.
 (c) Best Evidence - rule now only applies to documents - originals must be used
but if only secondary evidence is available you must lay the necessary
foundation for its admission.
(d) Documentary Evidence - Public, Private, and Business Records - Methods of
proof - for private documents strict proof (call author, witnesses, expert,
someone who knows the handwriting etc.), admitted by statute e.g. bank
records, court order, admittance by parties, document speaks for itself.
Document defined in s.2 of the Evidence Act.
(e) Hearsay - generally inadmissible - but not a strict rule there are exceptions that
have evolved by way of practice over many years e.g. dying declarations,
expert opinion, informed lay opinion (e.g. a person saw a man entered a bar
and allowed to testify that in his opinion the man was drunk a hour later, also
a lay person may confuse what he sees e.g. an AK47 and a SHE but may still
be allowed to give an opinion about what he believes from what he saw), res
gestae (statement must be contemporaneous and spontaneous with no time for
thought to fabricate it), declarations of pedigree, and exemptions that arise by
statute & public documents eg. Title Deeds are conclusive proof of ownership.
Exhibits
These are anything that can be shown to the court. For their admissibility they must
satisfy the four standards of relevance, authenticity, competence and custody.
Foundation questions are posed to the witness through whom the exhibit is offered to
lay the necessary foundation. Six steps to produce and admit:
(a) Make the witness say something about the intended exhibit after which it is, as
a matter of courtesy, shown to the other side.
(b) The intended exhibit must be handed to the witness who must sufficiently
identify it
(c) The intended exhibit is then marked e.g. “ID 1”
(d) The advocate must then lay the foundation for its admission as evidence i.e.
the intended exhibit is legally and logically relevant, it is being offered into
evidence by a competent witness who had custody of it and that the exhibit is
authentic i.e. it is what it purports to be.
(e) Ask the witness what he wants done with the exhibit i.e. offer it into evidence
as an exhibit and then mark it as an exhibit i.e. “Exhibit P1”
(f) The exhibit must then be published in open court e.g. by the witness being
asked to read the relevant parts of the document. [Note: anything published in
court that is not so formerly admitted is illegally published and you cannot
stop cross-examination on an intended exhibit.]
Conventional and Computer Generated Evidence - how to prove these
Objections and Motions (Continued)
Some objections will claim violation of substantive evidentiary doctrines or rules. The
four elements of a good objection are as follows:
 My Lord/Lady/Your Honour ….
 I object
 To any testimony by the proposed witness
 On the ground that this witness is e.g. incompetent to be a witness.
Further Examples
 My Lord/Lady/Your Honour ….
 I object
 To the admission of that proposed exhibit
 On the ground that there has been insufficient authentication.
 My Lord/Lady/Your Honour ….
 I object
 To the admission of that copy of the document
 On the ground that it is not the best evidence.
 My Lord/Lady/Your Honour ….
 I object
 To that question
 On the ground that it calls for improper6 opinion evidence
 My Lord/Lady/Your Honour ….
 I object
 To that question
 On the ground that it calls for incompetent hearsay evidence
 My Lord/Lady/Your Honour ….
 I object
 To that question
 On the ground that it calls for privileged communication
Other types of objection made during the trail relate to matters of form rather than
substance. E.g.
 My Lord/Lady/Your Honour ….
 I object
 To that question
 On the ground that it is vague and ambiguous
 My Lord/Lady/Your Honour ….
 I object
 To that question
 On the ground that it is leading the witness
 My Lord/Lady/Your Honour ….
 I object
 To that question
 On the ground that it is a compound7 question
 My Lord/Lady/Your Honour ….
 I object
 To that question
 On the ground that it has already been asked and answered
 My Lord/Lady/Your Honour ….
 I object
 To that question
6
Some opinion evidence may be “proper”.
7
Many questions in one - not sure which one witness is answering.
 On the ground that it is argumentative
 My Lord/Lady/Your Honour ….
 I object
 To that question
 On the ground that it assumes facts not in evidence
After the objection has been made there will be a debate/argument and the judge will
make a ruling on the objection i.e. either allow it or not. It is good practice if the other
party believes that the objection is justifiable to say e.g. “I will rephrase my question”
i.e. do not press a bad point. Note: you can ask “objectionable” questions e.g. leading
questions and if the other party is asleep you may get away with them - this is part of
the art of advocacy.
The same elements apply mutatis mutandis, to motions. I.e. The maker:
(a) Addresses the court
(b) Indicates that he is moving a motion or application
(c) Specifies what he is moving to strike
(d) Specifies
If the motion is granted (after arguments) the maker requests the court to make a
specific order to cure the defect if possible or quash/disregard as appropriate. Note:
with an objection there is a ruling; with a motion there is an order.
Relevance, Opinion Evidence and Hearsay
The first rule of evidence is called the relevance rule. This rule states that only matters
that are relevant to the case may be proved by evidence. In this connection, the first
practical step in any attempt to present evidence before a court is for counsel to
determine the exact parameters of the case and the issues that it raises. The facts in
issue are always relevant. Facts that are regarded as relevant to the facts in issue, i.e.
facts that are collateral to the facts in issue can be relevant and may be proved by
evidence in appropriate cases. Generally, facts that an ordinary person may consider
relevant are often not legally admissible in evidence as they are regarded as being
unduly prejudicial to the accused in criminal cases or they unnecessarily widen the
scope of the case in civil actions. Collateral facts are actions, omissions, statements or
declarations that accompany the facts in issue to explain them. These collateral facts
are admissible in evidence as forming part of the events (res gestae8). It does not
matter if these collateral facts, statements or declarations were authored by the
witnesses themselves or by other persons. One test to be applied (others are that the
evidence must be logically and legally relevant) to such collateral evidence is that
such actions, omissions, statements or declarations must be substantially current with
the facts in issue so that there is no time to allow fabrication of evidence to occur i.e.
the issue of comtemporaneity and spontaneity. A typical example is a dying
declaration made when the person is labouring under the compelling pressure of fatal
injury or a hopeless expectation of death. This type of hearsay evidence is admissible
as an exception against the hearsay rule, the common law principle being that dying
people never cheat or lie.
Opinion Evidence: Strictly speaking, opinion falls under the category of hearsay
evidence and in some cases circumstantial evidence for the simple reason that the
opinion makers conceive them after the event has been perceived by bothers with

8
The People v John Nguni [1977]
their own senses. E.g. evidence of an investigating officer who tells the court after
examining the evidence of others “I made up my mind …..” I.e. I formed an opinion.
Whatever an investigating offer does is “post facto”. When cross-examining such an
officer, a skilled advocate will test his opinion i.e. test the grounds upon which the
officer formed the opinion to bring the charge. Other opinion evidence and
conclusions drawn by other witnesses are on their own inadmissible and will fail as
evidence and the case will flop if such evidence is not supported by some other
category of evidence.
Expert opinion9 evidence10 ) Types of Opinion evidence:
Lay opinion evidence ) All may be admissible as exceptions in
Informed opinion evidence ) appropriate circumstances, BUT there must
Formal opinion evidence ) be supporting evidence or corroboration
Generally the common law has doubts about the trustworthiness of opinions. There
are historical reasons for this position. For these reasons the common law prefers that
witnesses restrict their testimony to observed facts or date perceived by one or more
of the witness’s 5 senses. The courts will then draw inferences or conclusions from
the given facts or data. These inferences drawn by the court may agree or disagree
with the witness’s opinion (but the court must use judicial reasoning in drawing its
own inferences and conclusions).
The prohibition against the admission of opinion evidence is, like that of hearsay
evidence, a general not an absolute rule. There are a number of situations where the
law permits various types of opinions as evidence.
E.g. 1: A lay witness as opposed to an expert witness, may express an opinion on a
subject if that witness is not able to verbalize all the perceived data and communicate
it to the court. I.e. he sees or hears something but cannot fully explain what he saw or
heard, he may be allowed to express an opinion (e.g. he may not be able to say that
the car e\was traveling at a precise speed but can express the opinion that it was too
fast). Indeed it is usual for an ordinary witness to fail to articulate all the perceptions
that led him to make a conclusion and it is in such situations that the common law
allows a lay witness to voice an opinion that will be admitted in court as evidence.
[Note: assessors give their opinions].
E.g. 2: The trial court itself often lacks the knowledge or skill to draw the proper
inference from the information or data given in evidence if the subject matter is
technical or scientific. In such situations the law allows the admission of the opinion
of experts in the technical/scientific field in issue. This is expert opinion evidence.
Where there are two or more conflicting expert opinions, the court is not bound by
either of them and there are a number of options available. The court may:
(a) Choose one opinion and reject the other
(b) Call for additional expert opinion evidence
(c) Reject both conflicting opinions and arrive at its own opinion and
decide the matter in issue as a question of fact.
The advocate must lay a proper foundation for the expert opinion evidence in order to
persuade the court. E.g. What do you do? How long have you done this job? Where
9
Opinion Evidence can conflict e.g. two doctors may conclude that death was by different causes.
10
Mulenga case: Mrs. Mulenga dressed as a registered nurse & obtained entry to husband’s mistress’s
house from maid. Gave injection to mistress’s baby who died. Drove off and dumped nurse’s uniform
in pit latrine. Fireman broke pit latrine and retrieved uniform. Fireman was called to testify but
(nonsensical) objection was made that he was not an “expert”. Phiri (prosecuting) was not calling him
as an expert witness but as a witness. Nevertheless, objection upheld and evidence was excluded.
did you train? What qualifications have you got in this field? Do you have any
international experience? Have you any publications in this field Etc. If you make
insufficient foundation, you may loose your case because the other expert is better
founded by counsel for the other side.
Formal Opinion Evidence: E.g. police officers make conclusions arising out of their
investigations/interviews. These are opinions. In such criminal cases, such opinions
while admitted as evidence must be tested as the police can and do very easily
manufacture evidence and the freedom of the individual is at stake and the standard of
proof is higher. Cross-examination of such formal opinion evidence is very important.
Note: Whatever should have been done but has not been done by the investigating
officers (e.g. visiting the crime scene, taking fingerprints etc.), will be interpreted by
the court in favour of the accused. There is a lot of advocacy work required when
dealing with opinion evidence.
Examining Witnesses
This is the only way or medium through which you will get evidence on the record.
[A] Laying the foundation for Evidence: The most important procedural rule od
evidence is that the proposer of any evidence must present a sufficient foundation
before offering the evidence e.g. the advocate proposing a letter into evidence must
present proof, through questions and answers, of its authenticity, relevance to the
matters in issue and it having been in the custody of a competent witness, before it is
offered into evidence. Similarly an advocate intending to rely on a written statement
or document (or even an unwritten statement), must present proof of who made it,
where it was made, when it was made, to whom it was made, how it can be
recognized or identified, and in whose custody it was last seen by the witness. In
criminal trails, if the document or statement is incriminating or contains an admission,
the lawyer must further present proof that it was made freely and voluntarily without
force, coercion, promise or reward. These kind of proofs are part of the “foundation”
for the admission of that evidence. Thus such evidentiary foundation is a condition
precedent to the admission of evidence in a court of law. Failure to present a
foundation or leading insufficient foundation will often lead to successful objections
and the exclusion of vital evidence and the eventual loss of the case and indeed
wasted time and resources. Failure to present sufficient evidentiary foundation is
actually an admission of incompetence on the part of the advocate.
There are three important practical rules of evidence that the advocate must observe
as he drafts each line of questions to the witness, these being simplicity, brevity and
proper case preparation. Lack of these three present treats to the witness’s evidence.
(a) Simplicity: a lawyer must always use the simplest most easily understood terms
as the lawyer’s duty at all times is to communicate effectively with his witnesses,
most of whom will be coming to court for their first time. Effective
communication requires the lawyer to use simple language without use of the
normal court room jargon e.g. don’t say “leave” when you can use “permission”.
Similarly use “before” rather than “prior”, “after” rather than “subsequent”,
“argument” or “disagreement” rather than “altercation”. Note: a lawyer may be
communicating to his witness through an interpreter. It is important to realize that
that examination of your own witness is a test of how well you can get the best
evidence out of them, rather than the use of the best vocabulary. Reserve jargon
for your submissions to the court.
(b) Brevity: each question to your own witness should be made as short as
possible. The longer the question, the lower the level of understanding by the
 witness. Experience has shown that it is much more difficult for a listsner to
absorb a spoken sentence than it is for a reader to absorb a written sentence.
This is because in a spoken sentence, there is an absence of visual recognition
that is an added advantage. Besides, a long and winding question also makes it
difficult for the court to follow counsel’s line of argument or questions or the
direction of his examination.
(c) Pre-Trail Preparation: It is a cardinal practical rule of evidence that each
advocate must make efforts to prepare evidentiary foundation before trial. If
the advocate often misfires in his questioning or pauses too long in his
Examination in Chief, the examination looses its flow and rhythm. If the
witness is made by the advocate to look uncertain in his answers, there is a
danger that the court may develop disinterest or distrust in the witness’s
memory. The court has the duty to take into consideration the demeanor of
witnesses11 and such opinion of demeanor is not appealable to a superior court.
The SCZ decides on the record and not on witnesses. The advocate should
thus not spoil the demeanor of his witnesses. It is therefore essential to review
the intended testimony with each witness before trial. The witness should be
made to read or study his pre-trial statement if any or read documents that he
authored or received in order to refresh that witness’s memory and pay
attention to detail. During this exercise the advocate should never coach the
witness into saying what that advocate wants to be said. The witness should be
as truthful as possible to the perceived facts in accordance with the oath or
affirmation taken just before testifying. Advocates should also avoid last
minute preparation because if you do so you are very likely to have unpleasant
surprises from the witnesses during Examination in Chief.
Competence of a Witness
The question of competence is a question of fact. One of the most important rules of
evidence is that every witness must be competent to testify as a witness in a court of
law. It is a common law requirement that a prospective witness must be made to
exhibit proof of his or her competence to testify by showing that he or she has the
following abilities:
(a) Ability (and opportunity) to observe;
(b) Ability to remember
(c) Ability to recognize a duty to tell the truth
(d) Ability to relate or narrate.
To demonstrate these abilities in a witness is every advocate’s goal in Examination in
Chief. In cross-examination, the aim is to show that one or more of these abilities is
lacking. If a witness does lack one or more of these abilities then that witness is
incompetent to be a witness. Insane persons or mentally unstable persons are always
caught up under this rule. Similarly children of tender age on account that they have
not fully developed their abilities. Because of this, children are prone to misinterpret
and exaggerate. [Juvenile Act gives guidelines on how a juvenile’s evidence is to be
received - corroboration. But a child of tender age is not defined anywhere. Decided
cases show a variety of ages from 5 upwards of children who have given evidence not
under oath. It is a question of fact in each particular case as it is with mentally
unstable persons.

11
Trial court will record the demeanor and take it into account when making its judgment.
In certain cases, even when a prospective witness is competent in the sense that he or
she possesses the 4 abilities, the law renders them either as suspect witnesses or
incompetent as witnesses in a particular case. The categories of such persons include:
(a) co-accused persons
(b) accomplices
(c) spouses and former spouses where one spouse is accused. E.g. a wife is not a
competent and compellable witness against her husband unless the wife
herself or her children are victims of her husband’s crime or where the spouse
is in a forced common law marriage.
Suspect witnesses - competent, but the court will attach low weight unless it is
corroborated by some independent witness or supported by some other independent
evidence.
Incompetent witnesses - not allowed to testify in the first place.
Evidence of a co-accused or an accomplice is voluntary. However, this type of
evidence is always suspect and in some cases requires corroboration or supporting
evidence of an independent nature from some other independent source. This is so
because these types of possible witnesses are persons with a possible interest of their
own to serve.
In addition, there are two types of person who are vital to the criminal justice system
but may not necessarily be witnesses. These are (a) the informer and (b) the
whistleblower. The two are distinct. The informer will rarely come to court and if he
does (e.g. in State Security cases), he will come under an assumed name given by the
DPP e.g. Mr. Sugar, Mr. Spoon, and Mr. Fork and the informer’s real identity is kept
secret. If you are defending and you revel the informer’s real name, the consequences
are grave. You can be charged under State Security laws and sent to prison for a
minimum of 25 years. One of the highest responsibilities of an advocate is to protect
an informer’s identity. The court is obliged by law not to force the prosecution to
reveal its sources or informers. An informer usually has nothing to do with the court.
The police simply say “I have received information..” but do not have to say where
they got this information. A whistleblower is one who is an insider e.g. an employee,
board member who comes to know things because of his inside knowledge. A bill is
being prepared for a whistleblower law for Zambia. They need different protection
from what an informer requires.
If a co-accused or accomplice is to be turned into a full witness, the prosecution must
obtain a pardon that is in the form of a contract between that co-accused and the DPP.
A pardon wipes out the crime and is a common law practice. The co-accused ceases to
be a suspect and his testimony then has full impact. Defence counsel is not allowed to
cross-examine on the pardon. It is a contract with conditions e.g. that the co-accused
will provide very valuable information of more serious crimes done by bigger fish.