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ISLAMIC MEDICAL EDUCATION RESOURCES-03

0104-PLEAS, (DAWA), AND EVIDENCE, (SHAHADAT)

Lecture for 3rd year medical students on 7th April 2001 by Professor Omar Hasan Kasule Sr.

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, iqraar

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.

 

OATH, yamiin

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)

 

MEDICAL EVIDENCE

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).

 

UNACCEPTABLE WITNESS

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

 

FALSE WITNESS

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)

 

VOLUNTARY TESTIMONY

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.

Professor Omar Hasan Kasule Sr. April 2001