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Weighing the evidence: Tipping the scales of justice

The Role of Evidence in Law and Society

Citizens call upon the courts to adjudicate a dispute when the parties cannot resolve

the problem between themselves. The justice system is a mechanism to ascertain the

facts that gave rise to the problem, and to provide a fair resolution of the conflict

based on the law, the conduct of the parties, and the circumstances of the case.

The role of evidence is central to this process; each side will attempt to prove

their version of the story using various forms of evidence: documents, objects, and

witness testimony.

In order to distill the truth from the evidence presented, the judge must consider

the body of evidence as a whole, as well as evaluate the persuasiveness of each individual

piece of evidence.

The overarching principles of justice and fair trials are reflected in the rules

governing the collection and use of evidence. As such, it is essential to examine

and understand the nature of evidence, different types of evidence, how evidence

can be used, and the limitations of evidence.

When considering evidence, we must always keep in mind whether it is salient to proving

or disproving a specific allegation. We must be careful to exclude irrelevant evidence

that may be prejudicial to either party. These principles are applicable outside

the confines of a courtroom-they should be incorporated into daily life as we citizens

evaluate the state of affairs and engage in civic participation.

Types of Evidence: Direct and Circumstantial

Evidence comes in various forms: written records, photographs, video or audio recordings,

physical objects, or witness testimony. Evidence may be directly related to the allegation,

or it may be indirectly related circumstantial evidence.

The difference between direct and indirect evidence is illustrated by the following

example: seeing the rain, hearing someone say it's raining (direct), as opposed to

watching people shake water off their raincoats, carrying umbrellas (circumstantial).

Direct evidence, if believed, conclusively establishes a fact. However, because circumstantial

evidence can only establish facts indirectly related to the core allegation, the

truth of the core allegation can only be inferred, not proven with absolute certainty.

Nonetheless, direct evidence does not always outweigh indirect evidence. Even circumstantial

evidence can be damning: in the case of a shooting, finding the suspect holding a

"smoking gun" is convincing evidence that the suspect shot the victim,

even if no one witnessed him firing the bullet. It is rare that a single piece of

evidence will be strong enough to determine the case. More often, the sum of all

the evidence, no matter what type, must tell a coherent and persuasive story about

what really happened.

The difficulty arises when different pieces of evidence contradict each other: you

hear someone say it's sunny and dry, but you see people shaking water off their raincoats

and taking off their wet shoes. This is when judgment must be exercised to weigh

the evidence and choose what to believe.

Judging the Quality of Evidence

For all types of evidence, reliability must be assessed in order for the factfinder

to decide how much weight it should be given. One factor that affects reliability

is testability. Evidence is stronger if it can be independently and objectively verified.

Evidence that rests solely on one person's word is weak, especially if it is unsupported

by other evidence. However, even verifiable evidence must be scrutinized for accuracy.

In a courtroom, the strength and accuracy of evidence is tested through cross-examination.

Each side can present its own evidence and cross-examine the evidence submitted by

the other side. With two conflicting stories, the parties should have access to the

others' facts, arguments and evidence with enough time to counter and defend their

positions. Evidence is reliable only if it has been shown to be correct.

Good Faith vs. Bad Faith

In many aspects of legal and social relations, people are expected to deal with each

other in "good faith". The process of collecting and weighing evidence

is a search for truth, a search that can be easily thwarted when someone acts in

bad faith by hiding evidence or by introducing false evidence.

In common-law countries, the idea of admissibility is used to exclude misleading

evidence. Evidence is admissible if it is relevant, reliable, and not prejudicial

to one of the parties. To be relevant, evidence must tend to prove or disprove some

point at issue. This prevents a party from putting forth unrelated information that

might bias the judge against the other party.

Evidentiary Challenges in Cambodia

Current events in Cambodia provide many examples of the importance of evidence in

ascertaining the truth; these cases also show how evidentiary problems can lead to

a miscarriage of justice.

In many cases related to land and evictions, written records are nonexistent. More

importantly, because of Cambodia's rampant corruption problems, documentation is

not always reliable. As a result, many cases are decided only based on someone's

say-so.

Borei Keila Case

For instance, people awaiting a spot in the new apartment complex being constructed

in Borei Keila must show that they were residents of the community before a certain

date. However, some residents cannot afford to pay a fee for a document from the

community leader. It is likely that people who can pay the "fee" will be

able to obtain a document attesting to their residency whether or not they were in

fact community members for the requisite period.

Even in the absence of bribery, without reliable evidence there is a great risk of

mistake. Although the Borei Keila project was initially praised for its plan to compensate

evicted people with new apartment housing, the problems with apartment allocation

show that good results cannot be achieved without fair adjudication and proper evidence.

A society cannot flourish when the rule of law is not established. Cambodian citizens

must be vigilant, engaged, and thoughtful about what is going on before their eyes.

Citizens must hold public officials accountable, and demand that they act according

to the law, not according to personal whims and power.

Monk Tim Sakhorn Case

Recently, a Khmer Krom monk named Tim Sakhorn was defrocked and has disappeared.

There is much confusion about why Monk Sakhorn was defrocked and whether he was forcibly

deported to Vietnam.

The order to defrock Monk Sakhorn accused him of "undermining diplomatic relations

with Vietnam by trying to establish a religious movement based out of his Phnom Den

commune pagoda." No evidence was given for this claim, and Monk Sakhorn was

never given an opportunity to defend himself. The government also alleges that Monk

Sakhorn broke the rules of Buddhism by having an affair with a woman. Introducing

unsupported allegations about his personal life is an example of prejudicial statements

aimed to discredit Monk Sakhorn and damage his reputation. In a court of common law,

such statements would not be admissible. Moreover, whether or not there was an affair

is irrelevant to the core accusation, and certainly not an offense punishable by

deportation.

The government asserts that Monk Sakhorn voluntary left Cambodia, citing a signed

statement. But others report that he was abducted by an armed group and driven away.

At the time of printing, his whereabouts were unknown. Because conflicting evidence

exists, the document signed by Monk Sakhorn cannot be accepted at face value. To

determine the true story, the public must scrutinize the information it is given.

Instead of relying on one questionable piece of evidence and accepting it as the

truth, citizens must actively consider all the evidence and judge for themselves.

As a rapidly evolving country, Cambodia needs to improve the quality of its recordkeeping,

provide better public access to information, and make judicial and administrative

decisions more transparent. When there is solid evidence, properly examined and weighed,

the public will know that a decision was not based on political reasons or personal

gain. People will respect the legitimacy of the decision, the decision-maker, and

the decision-making process.

Thus, adherence to the idea of principled, impartial reasoning based on relevant

evidence, not extraneous factors, will benefit Cambodian society by promoting the

rule of law, social stability, and public confidence in the justice system and the

government.

Linda HAHN

Intern, Columbia Law School
Theary C. SENG

Executive Director

The Voice of Justice column is a regular feature of the Phnom Penh Post. 

Both the column and the logo are expressions of the Center for Social Development

(CSD) which bears full responsibility for the opinions expressed. 

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