The use of real evidence in court: time to trust the common sense of the jury?

The use of real evidence in court: time to trust the common sense of the jury?

Real evidence perhaps is best understood by what it is not: evidence that is neither given by a witness in court nor documentary in form. As such real evidence, while being both tangible and often highly compelling (such as a murder weapon), is also a residual category comprising such assortments of evidence as views, demonstrations and experiments. Real evidence is of course subject to all the usual rules of admissibility such as relevance. But it is the use to which real evidence is put that can lead to controversy and possible appeal grounds. The purpose of this article is to examine the leading cases on the use and misuse of real evidence with a view to recommending (a) legislative reform of the uniform evidence legislation, and (b) statutorily overriding Scott v Numurkah Corporation and Kozul v The Queen at common law. Where real evidence takes the form of an out of court experiment, it is contended that s 53(3)(c) of the uniform evidence legislation should be amended to include an expanded version of the Neilan test at common law, in so far as there should be a presumption that the results of an experiment can be adduced and a jury can make use of what is drawn from the experiment, unless conditions are so dissimilar as to confuse or mislead the jury. Where real evidence takes the form of an in court experiment, it is contended that s 53(4) of the uniform evidence legislation should be amended to allow the court (including, if there is a jury, the jury) to conduct an experiment in the course of its deliberations. The argument is made that the underlying cause of these present restrictions on the use of real evidence is an apparent distrust by the legal profession of the jury’s capacity to properly handle and assess real evidence.

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