THE RULES OF EVIDENCE IN

GENERAL ARE SAME IN CIVIL AND

CRIMINAL CASES
DEFINE EVIDENCE. “THE RULES OF
EVIDENCE IN GENERAL ARE SAME IN
CIVIL AND CRIMINAL CASES”.
ELUCIDATE.
Rules of evidence in civil and criminal
cases
⚫ Generally, the purpose of evidentiary rules is to assist the
court in establishing the truth between the party's
conflicting versions of the fact in the case. The rules of
evidence are in general the same in civil and criminal
courts, that is to say:

⚫ In both cases the evidence must be confined to matters in

issue.
⚫ Hearsay evidence must be excluded.
⚫ The best evidence must be given.
⚫ Court can attach due weight to the demeanour of a witness,
i.e., the manner in which he gives evidence in the Court.
⚫ Oral evidence must be direct.
⚫ Fact admitted need not be proved.
⚫ Presumption is rebuttable.
⚫ Every person is competent to give evidence unless the
Court considers that he is unable to understand the question
put to him and is unable to give rational answers.
⚫ Law protects all information between wife and husband
and hence no person can compel them to reveal what the
other spouse communicated.
⚫ Lawyers cannot be compelled to disclose the contents of
any document with which they came to know in the course
of their job.
⚫ Evidence has to be weighed and not counted.
⚫ Experts may be called as witnesses. Handwriting and
signature of a person can be proved by an expert.
⚫ Court may compare the disputed document.
⚫ Where there has been a document, nobody can be allowed to
prove oral admission about the contents of such document.
⚫ A judgment, a decree or order, order sheet of Court are public
documents.
⚫ When the contents of a public document are to be proved before
Court, the original need not be produced, a certified copy if
sufficient.
⚫ Judge has to decide as to admissibility of evidence.
⚫ No leading questions can be asked in Examination-in-Chief
unless otherwise than with the permission of court
⚫ Leading questions can be asked in cross-examination.
⚫ The questions in cross-examination must be related to relevant
facts and facts in issue.
⚫ Object of re-examination is to remove any doubt that arose in
cross examination and to enable the witness to clarify any
contradiction.
⚫ New matter cannot not be introduced in re-examination, without
the permission of the court.
⚫ Court is empowered to compel a witness to answer a relevant
question. (Sec.147)
⚫ Court decides when a question shall be asked and when a the
witness has to answer a question. (Sec.148)
⚫ If Court opines that question put by a counsel without reasonable
ground, the court may report the matter to High Court. (sec.150)
⚫ Court shall forbid any question or inquiry which it regards as
indecent or scandalous. (Sec 151)
⚫ Court shall forbid any question which appears to be intended to
insult or annoy a witness. (Sec.152)
⚫ Judge can ask any question he pleases to witness, at any time,
whether it is relevant or irrelevant, and order the production of any
document or thing. (Sec.165)
⚫ Any question put by Judge must be so as not to frighten, coerce,
confuse, intimidate the witness.
⚫ The judge should avoid interrupting a witness, particularly the
defendant, when he is being cross-examined.
Difference
⚫ In both criminal and civil proceedings, the law of evidence has a
number of purposes. However, due to the different nature of
civil and criminal cases, the rules applicable on them may be
different.
⚫ The civil case is one instituted by individual for the purpose of
securing redress for a wrong, which has been committed against
him, and if he is successful he will be awarded money or other
personal relief.
⚫ While, a criminal case is instituted by the government for the
purpose of securing obedience to its laws by the punishment or
correction of the lawbreaker.
⚫ Therefore, since the relief sought as well as the purpose of
instituting civil and criminal cases is different, the existence of
difference regarding the strictnesses of the evidentiary rules
applicable on those two cases seems proper.
⚫ In criminal cases the law of evidence has further important
purpose, that is, the protection given to the accused in
respect to his right to a fair trial. The protection of the
accused against the case being proven against him by
evidence which is prejudicial to his right to and is one of
the main reasons why the law of criminal evidence contains
so many rules which excludes potentially relevant
evidences from being produced before the court
including, for example, the general rule that evidence of the
defendant's bad character or his previous convictions will
not be admitted at trial, different privileges given to
witnesses.. etc . The court may also exercise its
discretionary power to support the defendant's right to a fair
trial by excluding potentially relevant evidences.
⚫ While in civil proceedings, evidence that is relevant and
probative of a fact, which needs to be proved to the court,
will generally be admissible. There are no mandatory rules
requiring the exclusion of evidence in civil cases. This state
of affairs reflects the key difference between civil and criminal
proceeding. Therefore, we can say that the fair trial provision is
not as important in civil case as there is a greater equality in
resources between the parties in contrast with criminal
proceedings in which the power full government in one side and
the weaker accused on the other side are there. Also, whilst
losing civil case may result in the claimant or the defendant
suffering serious damage to his financial resources or property,
he will not loss his liberty, life or suffer the same social stigma
as a person who has been convicted of criminal offence. This is
reasons why, there is huge difference regarding the standard of
persuasion required in civil and criminal cases.
⚫ The main difference regarding evidentiary rules in civil and
criminal cases lies on the required standard of proof. The rules
relating to the standard of proof determines how much proof is
required for a party to persuade the court. The appropriate
standard of proof that will have to be satisfied in a criminal case
is heavier than in a civil case.
⚫ In criminal proceeding, the public prosecutor, in order to
win the case, is required to prove, beyond reasonable doubt.
While in civil case the standard is preponderance of evidence
or probabilities. In legal terms, a preponderance of evidence
means that a party has shown that its version of facts, causes,
damages, or fault is more likely than not the correct version, The
concept of “preponderance of the evidence” can be visualized as
a scale representing the burden of proof, with the totality of
evidence presented by each side resting on the respective trays
on either side of the scale. If the scale tips ever so slightly to one
side or the other, the weightier side will prevail. If the scale does
not tip toward the side of the party bearing the burden of proof,
that party cannot prevail.
⚫ The “beyond reasonable doubt” standard is
constitutionally mandated in criminal cases. However,
“beyond reasonable doubt” means that you must be
virtually certain. The law does not demand that, for
you to find the accused guilty, you be absolutely
certain of his guilt, because there are few, if any, things
in life we can be absolutely certain about.
Who has a burden of proof in criminal
and civil proceedings?
⚫ The general rule in criminal cases is that the prosecution bears the
burden of proving the accused's guilt and the substantive law defines
what the prosecution must prove in order to convict the accused. This
will usually comprise elements of the mens rea and actus reas, for
example, when pursuing conviction for theft, the prosecution must
prove all the elements of the offence as laid down by the Criminal
code (namely a dishonest appropriation of property belonging to
another with the intention to permanently deprive).
⚫ The allocation of the legal burden of proof on the prosecution is
regarded as fundamental expression of the presumption of innocence.
Because everyone charged with criminal offence shall be presumed
innocent until proved guilty according to law. It also reflects an aspect
of procedural fairness in that the prosecution has considerably more
resources at its disposal than the defendants and therefore it should
bear the burden of proving the accused guilt. A practical consequence
of the prosecution bearing the legal burden of proof is that the
prosecutor always opens the case at trial and presents its evidence
first. In discharging its burden the prosecution must disprove any
defense or explanation raised by the accused.
⚫ Whilst the rules of civil evidence do not incorporate the
same enshrined principles as in criminal case (i.e. the
accused in a criminal trial is presumes innocent until
proved guilty by the prosecution), To put the well
established general rule about the incidence of the legal
burden of proof in civil proceedings is that “he who
asserts must prove”. Simply, the legal burden of proving a
fact in issue in a civil trial is on the party that asserts that
fact. Therefore, in civil cases, the burden of proof first lies
in the plaintiff. However, this burden of proof will shift to
the defendant if the defendant admits the allegations and
comes up with positive defence like “counterclaim”. In
such case, the burden of proof lies on the defendant.
⚫ We have discussed the main differences existed between civil
and criminal proceeding regarding evidence i.e. on burden and
degree of proof. However, there are also other differences.

⚫ Less importance is attached to the principle of orality in civil

proceedings, resulting in far greater reliance up on the
admission of evidence in documentary form. Because in civil
cases, most of the claims are raised from contractual, monetary
or proprietary relationships which could mostly be proved by
adducing documentary evidences.
⚫ While due to the very nature of ways of committing a crime, the
public prosecutor mostly proves his allegation by providing an
expert and lay witnesses. And the crime, which could be proved
by documentary evidences, is less in numbers since they are
being committed in a more sophisticated way.
⚫ There is also a difference between civil and criminal
proceedings regarding proof by admissions.
⚫ Firstly, in civil cases, the defendant shall deny each and
every fact alleged by the statement of claim specifically.
And every allegations of fact in the statement of claim, if
not denied specifically or by necessary implication, or
stated to be not admitted in the statement of defence,
shall be presumed admitted and the court shall give
judgment on such admitted facts.
⚫ While in criminal cases, where the accused says nothing
in answer to the charge, a plea of not guilty shall be
entered. This means the silence of the accused of the
accused does not amounts to admission. Moreover,
failure to cross-examine on a particular point does not
constitute an admission of the truth of the point by the
opposite party.
⚫ In civil proceedings, where a party formally admits the truth of
a fact in issue in the case, the fact ceases to be in dispute
between the particles, and as such any evidence to prove the fact
will be ruled as inadmissible on the ground that it is irrelevant.
⚫ To put in another way, judicial admissions are conclusive in
civil cases. And the courts are under obligation to give
judgments based on such admission without requiring the
production of additional evidences.
⚫ While in criminal cases judicial admissions are not
conclusive. Of course, when the accused admits without
reservations every ingredient in the offence charged, the court
shall enter a plea of guilty and may forthwith convict the
accused. However, the court may require the prosecution to
call such evidence for the prosecution, as it considers
necessary and may permit the accused to call evidence.
⚫ Therefore, unlike civil cases, in criminal cases the
task of determining the conclusiveness of judicial
admission is left to the discretion of the court. In
criminal cases, the issue may be the question of life
and death. So the court shall take a due care that an
innocent person not to be convicted and punished. So
that, the courts are expected to critically examine the
reasons behind of the confession. Because sometimes
innocent person may admit the commission of crime to
cover another person, for fame or to be known
throughout the world by his criminal act.
⚫ In criminal cases, admission shall be made without
reservation. When we say the accused admitted, we are
saying that he admitted each and every criminal element of
the alleged offence usually comprise elements of the mens
rea and actus reus .
⚫ However, in civil proceedings the party may admit the
truth of the whole or any part of the case of the other
party. For instance, the plaintiff has instituted suit against
the defendant on breach of contract for the value of 10,000
rupees. Here, the defendant may admit half of the plaintiffs
claim and deny the rest. In such case, the issue (the point of
disagreement) lies only on the non-admitted claims of the
plaintiff and the court shall give judgments on the admitted
amount.
⚫ The rules of admissibility are the same, but certain rules of
evidence are applicable to criminal cases only because the
relevant issues arise only in such cases e.g., dying
declarations, character of accused etc.
⚫ The provisions regarding confessions, dying
declaration, character of witnesses are more peculiar to
criminal law than civil law. Accused is presumed
innocent until proven guilty by the prosecution, evidence
must be to exclude every reasonable doubt regarding the
guilt of the accused, in case of reasonable doubt regarding
the guilt of the accused, the benefit of doubt is given to the
accused not the prosecution, there must be clear proof of
‘corpus delicti’ or the fact of the crime.
⚫ In civil cases, the rules of evidence may be relaxed by the
consent of the parties or by the order of the court e.g., proof
by way of an affidavit.
⚫ But such is not the case in criminal cases where the rules of
evidence cannot be relaxed by the consent of the parties or by
the order of the court.

⚫ In civil cases, it is the duty of the parties to place their

respective cases before the court as they deem best.

⚫ But in criminal cases, it is the duty of the court to record

relevant evidence and to base its judgment upon such evidence
alone.
*******