A. COURT PROCEDURE
Court proceedings start with complaints, da’awa, by the plaintiff. The specific charge must be read out to
the defendant with care being taken to make sure he or she understands all elements of the charge. If the claim is false it
is ignored. If the claim is true the defendant is asked to enter a plea of guilty or not guilty. Care must be taken to ensure
that the defendant understands and appreciates the implications of a guilty plea. If the defendant pleads guilty, he is convicted
and punishments or other legal sanctions will apply. If the defendant pleads not guilty the plaintiff must produce evidence.
The burden of proof is on the plaintiff. The plaintiff, mudda’i, has to prove his claim, al bayyinat ‘ala
al mudda’e (KS 96: Bukhari K25 B1 & B2; Ibn Majah K13 B7; Waqidi p339). The defendant is considered innocent
until proved guilty. If the plaintiff cannot produce evidence the word of the defendant is accepted on taking an oath, al
yamiin ‘ala al mudda’e ‘alayhi (KS 111: Bukhari K48 B6; Bukhari K52 B20, 19; Bukhari K65 S3 B3; Muslim
K30 H1,H2; Abudaud K21 B13; Abudaud K23 B23, 24; Tirmidhi K13 B12; Nisai K49 B36; Muwatta K36 H8; Ahmad 1:342, 351, 356, 363).
If the plaintiff produces evidence the defendant is allowed the right of cross-examination. The defendant can also introduce
evidence of character as a defense. The plaintiff is not allowed to litigate unless he has full rights to deal with the property
in dispute. He must have a full specific description of the debt or property in dispute.
B. METHODS OF PROVING A CLAIM
Admission of guilt makes the trial quick. Care must be taken in accepting confessions from the psychologically
vulnerable and the mentally sick. The accused that confesses to a crime must be legally competent. Suspicion should be aroused
whenever a person is willing to incriminate himself. Some may be intellectually competent. Some may be covering up for someone
else or may want a speedy trial to avoid public disclosure of details of the crime. In a few cases the person may be guilty
and may want to confess be punished and thus be cleansed, Confession other than voluntary will be rejected. Any evidence obtained
under duress or undue violation of privacy, tajassus, is rejected. Any pre-trial confessions will be rejected if the defendant
was not informed that such statements could be used at the trial.
ORAL EVIDENCE, shahadat
Islam emphasizes evidence-based knowledge and action. The word evidence, shahadat, is one of the most frequently
repeated words in the Qur’an (p. 645-646 2:73, 2:84, 2:133, 2:185, 2:204, 3:52-53, 3:64, 3:70, 3:81, 3:86, 3:99, 4:72,
5:83, 5:111, 5:113, 5:117, 6:19, 6:73, 6:130, 7:37, 7:172, 9:17, 9:94, 9:105, 11:17-18, 11:54, 11:103, 12:81, 13:9, 17:78,
18:51, 19:37, 21:61, 22:28, 23:92, 24:2, 24:4, 27:32, 27:49, 28:44, 32:6, 37:150, 39:46, 40:51, 41:47, 43:19, 43:86, 46:10,
50:21, 50:37, 62:8, 64:1, 64:18, 74:13, 83:21, 85:3, 85:7). Testimony by witnesses is a communal obligation. Professional
evidence is evaluated like any other source of evidence and need not be accepted all the time. In cases of huduud the judge
is not allowed to base his judgment on his personal knowledge of the circumstances of the case. In non-huduud cases the judge
can base his judgment on personal knowledge of the circumstances of the case. Hiding evidence is prohibited, tahriim kitmaan
al shahadat (p 648 2:14, 2:283, 4:135, 5:8, 5:106-108, 65:2, 70:33). Evidence may be direct, circumstantial or hearsay. Circumstantial
evidence cannot be used to convict in cases of huduud. Hearsay evidence is rejected outright. The court must decide on admissibility
of evidence based on regulations developed by the Law. These regulations set out the standards expected in proving a claim
and the burden of proof.
An oath is valid if it is made by a sane adult in the name of Allah and is voluntarily intended. Swearing by Allah,
al hilf bi Allah (MB 1183, KS 110: Bukhari K52 B26; Bukhari K83 B4,5,7; Muslim K22 H 4-6; Abudaud K21 B3; Tirmidhi
K18 B8, 9, 18; Nisai K35 B4,6,10-12; Ibn Majah K11 B2; Darimi K14 B6; Muwatta K22 H14; Ahmad 1:47; Ahmad 2:34, 67, 98, 125;
Ahmad 3:487; Ahmad 5:62; Tayalisi H1896). The oath must be voluntary. An oath is not accepted from one spouse testifying about
another one or the servant about the master (KS 425: Tayalisi H1767)
DOCUMENTARY EVIDENCE, wathaiq
Disputes often arise in mu’amalat it is therefore recommended to have such transactions written and witnessed,
al shahadat fi al mu’amalat (p. 649 2:282, 2:283, 4:6, 5:106, 65:2)
Forensic medicine, qadhau tibbi, provides a wide range of medical or scientific evidence that can be the
basis for conviction.
ATTESTING CONDUCT, CHARACTER WITNESS
The court can accept as evidence attestation of good character of the defendant that makes it unlikely that he
committed the crime in question. Such character witnesses must themselves be persons of good character. Women can attest to
each other’s good character, ta’adiil al nisa ba’adhuhunna al ba’adhu (MB 1179) as well as
men can attest for the good conduct of others character, tazkiyat al rajl rajulan (MB 1180)
C. CONDITIONS FOR ACCEPTING EVIDENCE
QAT’I AND NOT DHANNI
The evidence must be proof beyond any doubt. Theoretically the level of certainty required is that of yaqiin
where no doubts are possible about the judicial conclusion. In practice this is not possible and judgment is based on preponderance
of evidence that is equivalent to the usuli concept of ghalabat al dhann. The type of punishment involved also determines
the level of proof needed. In case of huduud cases a level of proof no less than yaqiin is required.
CAPACITY TO TESTIFY
A distinction must be made between legal competence of a witness and capacity of a witness to testify. A legally
competent witness may fail to testify due to illness.
ACCEPTABLE WITNESS, ‘adl:
There are condition of acceptability of a witness, ishtiraat al ‘adl fi al shuhuud (p 794 2:282, 5:95, 5:106).
Conditions of a witness: (a) free with full civil liberties, hurr (b) legally responsible, mukallaf (c) can
speak (d) mentally awake (e) of upright character (f) outwardly respectable ie has social respectability, mur’at
(g). There are special considerations for testimony by children before puberty (MB 1181), by the blind, shahadat al a’ama (MB 1177).
Testimony of the following types of witnesses is not accepted: (a) Committed major sin and did not repent (b) persists
in committing minor sin (c) has no social respectability, muruat (d) testifying for son or father (e) can benefit from
outcome of trial (f) can avoid loss from outcome of trial (g) testifying against an enemy (h) testimony about his own act
There is condemnation of a witness for injustice, shahadat al juur (MB #1175) and the false witness, shahadat
al zzuur (MB 1176, p. 648 6:19, 6:144, 6:150, 25:72; KS 96: Abudaud K23 B14, Nisai K31, Ibn Majah K13 B6, Ahmad 2:82,
Bukhari K52 B9)
The defendant may give testimony voluntarily. He however has a right of silence as a privilege against self-incrimination.
There is an assumption that a silent person may have an innocent reason for not wanting to testify. The burden of proof is
on the prosecution.
D. PHYSICIAN COURT TESTIMONY
OBLIGATION OF PHYSICIAN TO TESTIFY
The physician has an obligation to testify about facts that he came to know in the course of his work. If he refuses
to testify he is committing the crime of hiding/concealing evidence. The obligation arises if the physician is asked to testify.
He is not obliged to volunteer as a witness.
JUSTICE vs PROFESSIONAL CONFIDENTIALITY
Patients may lose trust in physicians who testify in court. This affects the quality of medical care because patients
then no longer give full information to physicians needed for proper quality care
E. CRITERIA OF ASSESSING EVIDENCE There is a difference in criteria of proof needed for civil and criminal cases. In civil cases the criterion is balance
of probabilities. In criminal cases the standard is proof beyond any reasonable doubt. The crime of zina has an even higher
level of proof. Four witnesses must be able to describe the act of coitus in detail before a conviction can be returned. The
criteria used in assessing hadith can be applied to evidence in court. Dhabt is
used to refer to rigor in memory. Jarh and ta’diil refers assessing the reliability of the witness. 'Adl is a term is used by scholars to hadith to refer to a Muslim
who is an adult, intellectually competent, who does not commit major sins, and does not repeatedly commit minor sins, and
who has no trait that destroy social respectability, muru'at. The internal consistence of the evidence can also be used.