Evidence and Proof (LAWS50037)

Evidence and Proof offers a detailed exploration of how facts are analysed in legal settings, giving equal attention to the way that lawyers think about and communicate factual issues and the rules that regulate how courts resolve factual disputes. The subject provides a foundation for understanding both the rules that regulate the curial resolution of factual disagreements and the way that facts are approached in legal practice and in everyday life.

The core of the subject is the study of mental processes used to explore and resolve factual issues. Specific topics addressed are the development of a theory of the case and a description of inferences that can be used to reason from the evidence to the case. A number of methods for communicating factual analysis, including the use of software, may be studied, with an emphasis on both technical accuracy and the production of useful, readable analysis.

The subject will then explore the main rules that regulate (or purport to regulate) these mental processes (and related physical processes, such as the testimony of witnesses and the admission of documents and real evidence) when factual disputes are resolved by courts. The regulatory topics, comprising the central components of the law of evidence, include relevance, discretionary exclusion; the hearsay rule and its exceptions; the opinion rule and the regulation of expert evidence; and the credibility rule. The subject will also consider the rules that impact on the proof of criminal charges, including the rules on evidence of the defendant’s character and other misconduct; the admissibility of admissions; and the law of criminal investigations. The classes will emphasise the application of these rules to complex, realistic facts and the development of skills to describe the impact of legal regulation on factual arguments that would otherwise be available.

Throughout, the subject will explore the rationales for the rules and practices that surround legal fact-finding, as well as the alternative approaches available from comparative jurisdictions or proposed as law reforms. Students will be challenged to consider not only the limits of legal regulation, but also the limits of logical fact-finding, as a means of providing justice (and, in particular, avoiding miscarriages of justice) in a transparent, accountable, efficient and effective manner.