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
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
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
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
Intern, Columbia Law School
Theary C. SENG
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.