Evidence: forms of evidence
Overview of the Uniform Evidence Law (‘UEL’)
- The Uniform Evidence Law has been adopted by several Australian jurisdictions:
- Commonwealth: Evidence Act 1995 (Cth).
- New South Wales: Evidence Act 1995 (NSW).
- There are three main forms of evidence:
- documentary; and
- other evidence.
- Testimonial evidence is also known as:
- oral evidence;
- verbal evidence; and
- witness evidence.
- The rules of testimonial evidence are set out in UEL pt 2.1.
- The rules concern:
- who can give evidence;
- how evidence may be given; and
- how witnesses may be questioned.
- Documentary evidence is ‘any record of information’.
- The rules of documentary evidence are set out in UEL pt 2.2.
- Additional relevant provisions are contained in the UEL Dictionary.
- The rules concern:
- what constitutes documentary evidence; and
- how documents may be used in court.
- Other evidence is any evidence that is neither testimonial evidence nor documentary evidence.
- Other evidence may also be known as:
- real evidence; or
- demonstrative evidence.
- The distinguishing feature of other evidence is that the jury can perceive it directly.
- Other evidence includes:
- physical evidence (such as weapons and blood);
- the demeanour of witnesses; and
- views (experiments, demonstrations and inspections).
- The rules of other evidence are found in UEL pt 2.2 and the common law.
- The rules govern:
- the presentation of other evidence;
- how other evidence may be handled by the jury; and
- what inferences may be drawn from other evidence.
Examples of different types of evidence drawn from State of Florida v Zimmerman (Fla 18th Jud Cir, Crim No 592012CF001083A, 13 July 2013)
- The victim’s mother was called as a witness to give her opinion on the identity of a person heard screaming for help in a recording.
- The evidence presented was:
- testimonial (the witness gave evidence directly); and
- documentary (the recording).
- The sounds (cries for help) were not ‘other evidence’ because they were a reproduction from a tape, and were therefore documentary evidence.
- The distinction between forms of evidence can be difficult to appreciate, such as in the case of fingerprints.