(1)
Evidence by a Witness. Where facts are to be proved by observation of
parties or by opinion evidence. Obviously the witnesses put these competing
versions to the court when they give their evidence.
(2)
Real Evidence. Real evidence consists of the thing itself. For example it
is the gun allegedly used in the crime or the location where some events took
place. This can be put before the court. Obviously where the evidence
consists of location the court may need to visit the relevant place or to have
before it an accurate map or proper photographs of the place. Maps and
photographs constitute representational evidence.
(3)
Statement by Lawyers. Where parties are seeking to prove facts by
other means such as deeming provisions or judicial notice, the parties
themselves, usually through their lawyers, state the facts and indicate the
particular means by which the facts are established. This can be done in the
opening address, in the course of the trial, or in the final address to the court.
Step 2: Probability of Truth
Introduction
Faced with conflicting accounts of the facts a court has to resolve the
arguments by each of the parties that their version of the facts is true. Part of
this process is for the court to estimate the probability that each party’s case is
true. This is done in Step 2 -
the court assesses the probability that each
version of the facts is true.
This is the most complex of the three steps and is a mixture of a little science,
some common sense and a lot of guess work. Because of this uncertainty, a
court can accept any version of the facts reasonably available to it from the
evidence. This is why fact finding is so unpredictable.
Nature of Probability
Probability is used by courts in the process of finding facts because fact
finding is
an uncertain task. There is no guarantee that a court or other fact
finder can always get it right. Probability is a way of encapsulating uncertainty
surrounding past events. This is why it can be used for describing the
likelihood that a witness is now telling the truth about events in the past that
they observed.
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This is also why the “logical rules for thinking about facts in
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The part of the fact finding based on observation is discussed in
Christopher Enright Legal Reasoning
Chapter 26 Observing Facts. For a basic
account how the rules of probability are deployed in fact finding see Christopher
Enright Legal Reasoning Chapter 9 Probability.
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