There are still jurisdictions in which photographs and digital media can only be introduced
by using detours like an expert’s or witness’s statement.
In fact, the traditional list of acceptable means of evidence only contains
witnesses, experts, documents, confessions, and the court’s observations. In the
French tradition, this can be supplemented by presumptions of fact, inferences
made by the court based on undisputed or established facts.
13.4.6.4 Value of Evidence
Evidence is rarely completely reliable, and in most cases some extra considerations
are needed to choose between the possibilities offered by all means of evidence
presented in court.
Free Evidence The doctrine of free evidence leaves the appreciation of all means
of evidence to the court. The court will have to base its decision about the evidence
on the scenarios presented by the parties (or the prosecution and the evidence) and
the likelihood of each of these scenarios in the light of the evidence that has been
produced. The less this appreciation is trusted, the more the judge is curtailed by
rules telling him which evidence to discard and which evidence to believe.
One WitnessA rule found in many jurisdictions is theunus testis nullus testisrule,
stating that nothing can be proven with only the testimony of one witness.
Probative Evidence On the other hand, some types of documentary evidence, like
deeds written by notaries, often have an imperative probative value.
13.4.6.5 Standards of Assessment
Evidence in law is not like evidence in mathematics. Proof in law is a matter of
excluding other possibilities beyond a certain point, being fully aware that complete
certainty about events in the past can never be obtained. Courts therefore developed
criteria to set the required level of certainty.
In criminal cases, it is often said that the facts have to be proven “beyond
reasonable doubt.” That is a high standard, excluding the possibility of a not so
exceptional explanation for the same facts other than that the suspect committed the
crime.
In civil litigation, the standard of proof is usually the preponderance of the
evidence, simply meaning that one party has more proof for its statements than the
other party.
13.4.6.6 Burden of Proof
Fact finding may be structured when a “burden of proof” model is used. In civil law
countries, the rules of evidence indicate which of the parties will have to prove
certain statements.
308 F. Fernhout and R. van Rhee