The Basic Principles of Evidence for Investigators by Judge Malcolm Simmons

1. JUDGE MALCOLM SIMMONS

2. Judge Malcolm Simmons Describes The Basic Principlesof Evidence forInvestigators What delegates said about Judge MalcolmSimmons “A thought-provoking presentation by a highly skilled lawyer andpresenter” High CourtJudge

3. Judge Malcolm Simmonsexplained that there are two basic principles of evidence that investigators should have in mind at the start of any investigation: (1) Relevance and (2)Weight

4. 1.Relevance In principle, only relevant evidence should be admitted. Evidence will be relevant if it “tends to prove, or disprove, a fact inissue.” Judge Malcolm Simmons stated that in order to determine whether evidence is relevant – or potentially relevant- investigators mustknow: The elements of proof of the suspected offence(s) and The type of evidence – direct orcircumstantial – that would be relevant to provethem.

5. 2. Weight When discussing the ‘weight’ ofevidence we are, in effect, assessing its reliability and persuasiveeffect. In determining weight the court will normally have regardto:

6. i. The source of the evidence (How does a witness know what he or she is testifyingto?) What is the basis for awitness’s knowledge? Is the witness testifying to what he or she knows for a fact, or what the witness overheard, or what the witness supposes or thinks might have happened? Judge Malcolm Simmons explained that evidence of which the witness has direct personal knowledge is considered to be weightier than information overheard from another orsupposition.

7. ii. Whether the evidence is direct orcircumstantial Judge Malcolm Simmons explained that direct evidence is evidence that tends to prove a fact directly. Direct evidence is usually considered to be the strongest method of proof, but circumstantial evidence – evidence that tends to prove a fact indirectly, or by inference from other facts – also can be quite persuasive if presentedcorrectly.

8. iii. The credibility of thewitness. Judge Malcolm Simmons explained the factors that affect the credibility of a witnessinclude: The plausibility, or the lack thereof, of the witness’s statements when compared to other evidence in the case (i.e., the extent to which the witness’s statement iscorroborated); The consistency or inconsistencyof the witness’s current and priorstatements;

9. Whether the witness’s statements promote his or her self- interest, or are neutral or even contrary to it (the latter are termed “statements against interest’ and are considered to be more credible); Whether the witness has a “reputation for truthfulness” or the contrary, and whether the witness previously has been convicted of a criminal offence (these factors are often admissiblein court to attack the credibility of awitness);

10. Judge Malcolm Simmons has been ajudicial trainer for more than 15 years and he has lectured around theworld.

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