Evidence and Advocacy: Proof, Persuasion, and Courtroom Craft
From facts to findings
Evidence law determines what may be proved and how. Advocacy determines whether it is believed. Candidates must master both, because a question may ask whether a document is admissible and, separately, how to examine a witness about it.
Concepts you must command
Understand relevance and admissibility, the distinction between direct and circumstantial evidence, the rule against hearsay, the exceptions including admissions and dying declarations, the best evidence rule for documents, and the rules on burden and standard of proof. Understand examination-in-chief, cross-examination, and re-examination; the prohibition on leading questions in chief; refreshing memory; and impeaching credit. Understand privilege, confessions, and illegally obtained evidence.
Traps that appear in questions
- Treating all hearsay as inadmissible without checking exceptions.
- Confusing the burden of proof with the burden of adducing evidence.
- Asking leading questions on matters in dispute during examination-in-chief.
- Assuming a document speaks for itself without proof of execution.
- Cross-examining on credit without a foundation.
Rule of thumb
For any item of evidence, ask three questions: Is it relevant? Is it excluded by a rule? If admitted, what weight does it carry? Relevance, exclusion, weight, in that order.
Worked example
A witness testifies that a third party told him the accused was at the scene. The analysis: the statement is hearsay if offered to prove the accused's presence. It may be admissible only to show the witness's state of mind or if a recognised exception applies. The advocate should object at the point of the question, stating the ground, so the record preserves the issue for appeal.