Circumstantial Evidence and Its Admissibility in Criminal Proceedings: A Comparative Analysis of the Common Law and Islamic Law Systems

Abstract

There are two basic forms of evidence that may be admitted in courts of law; one, direct evidence which does not require any inference to arrive at a conclusion to be drawn from the evidence, and this includes eye witness and confession, and two, indirect evidence which is also known as circumstantial evidence, which requires an inference to be made in order to arrive at a conclusion to be drawn from the evidence. The perception among the public is that circumstantial evidence is an inferior form of evidence which carries less weight than direct evidence. One sometimes hears persons who have been convicted of an offence affirm their intention to appeal against a conviction as the evidence was only circumstantial. The situation is worse when it comes to its admissibility under Islamic law. The general perception is that circumstantial evidence is inadmissible in criminal proceedings under Islamic law system. This paper, therefore, examines the significance and admissibility of circumstantial evidence in criminal proceedings. It makes a comparative analysis of the Common law and Islamic law systems. It finds out that circumstantial evidence is admissible in all cases in Common law system, while in Islamic law system; Muslim jurists hold different views with regard to its admissibility in Huduud and Qisaas cases. It draws a conclusion that although Muslim jurists hold different views, the soundest view is its admissibility in all cases including Huduud and Qisaas. This is because what is important in a conviction is proof which satisfies court that the accused is guilty of the crime against him or her, and circumstantial evidence is among the proof. As a general rule, the value of circumstantial evidence lies in its cumulative value; while a single item may not be enough to satisfy court of the guilt of the accused, several items taken together may carry enough probative force to justify a conviction.

Keywords: indirect evidence, circumstantial evidence, inference, Huduud, Qisaas, cumulative value, probative force.