2.

1 Digital Evidence related to Oral Evidence

Generally, spoken evidence given by a witness in court, usually make under oath are Oral
Evidence. Oral evidence includes evidence that, by reason of any disability, disorder, or other
impairment, a person called as a witness gives by writing or by signs or by way of any device. In
broad terms, there are two types of oral evidence; testimony and hearsay.

According to Section 3 of the Evidence Act Myanmar (1872), oral testimony refers to
statements given by witnesses in relation to matters under judicial inquiry, as permitted by the
court. These statements are considered testimonial evidence. From such testimony, facts beyond
what is recorded in documentary evidence may be inferred or clarified. Oral testimony refers
to statements made by a witness through spoken words. Nevertheless, in cases involving a mute
or speech-impaired witness, testimony may also be given in writing or through gestures or other
physical actions, and still be regarded as oral evidence.

Due to the inherent weaknesses and potential for alteration in oral testimony, it is
generally considered less reliable than documentary evidence. Hence, the common legal
expression: “Oral testimony is but a spoken word.”
Despite its limitations, approximately 90% of judicial decisions rely on oral testimony as
the primary form of evidence in legal proceedings.1

Video-Conferencing

The facility of producing evidence by recording it through the process of video-

conferencing has been permitted in criminal cases. The Court expressed the view that there
cannot be any plausible objection for adopting the same procedure in civil cases also. But
necessary precautions must be taken as to both identifying of witnesses and the accuracy of the
equipment used. Where a witness of a party requests that the evidence of a witness may be
recorded through video conferencing, the court should be liberal in granting such a prayer.2

1
ဦးသက်ဖေ ၊ သက်သေခံဥပဒေ၏သိကောင်းစရာများ၊ တတိယအကြိမ်၊ ၂၀၁၈
2
International Planned Parenthood Federation v Madhu Bala Nath, AIR 2016 Del 71, paras 14, 15 and 16.
 When using evidence through live video or live television links to give statements, the
court must consider whether the communication follows the law in that location. The court will
also check how secure the technology is, whether there is any risk of information being
intercepted or deleted, and if the communication method can ensure privacy and security. By
considering these factors, the court may allow a statement to be given through live video or live
television links.3

Hearsay
Under the provisions of Section 60 of the Evidence Act, hearsay evidence is generally
inadmissible when presenting oral testimony. However, it's important to note that not all hearsay
is inadmissible. The nature of hearsay evidence is that the individuals providing it was not
personally witness or experience the events related to the case. Instead, they are individuals who
heard information indirectly from someone else who was an intermediary to the event.
Direct witnesses, who saw the event firsthand, can provide more accurate and reliable
information than those who heard it indirectly. Those who provide hearsay only relay what
others have told them. They cannot know for certain whether the person who told them actually
experienced the event, or if they are relaying the information truthfully. Therefore, information
heard indirectly is often unreliable and hearsay testimonies are often vague or ambiguous.
Nevertheless, hearsay evidence is often the closest form of evidence to the original source
when direct testimony cannot be presented. In such situations, it becomes unavoidable to use
hearsay evidence. This is precisely why the Evidence Act includes provisions for the
admissibility of certain types of hearsay evidence.
To determine when hearsay evidence is admissible, we must refer to Section 32 of the
Evidence Act. Hearsay evidence that falls within the scope of this section is admissible as
evidence, despite being hearsay.

32 Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be
found, or who has become incapable of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which under the circumstances of the case appears to the
Court unreasonable, are themselves relevant facts in the following cases:-

3
ဦးသက်ထွန်း ၊ သက်သေခံအက်ဥပဒေဆိုင်ရာမှတ်စုကြမ်း၊ ၂၀၂၀
When it relates to cause of death;
(1) When the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases in which the cause of that
person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when
they were made, under expectation of death, and whatever may be the nature of the proceeding in
which the cause of his death comes into question.
or is made in course of business;
(2) When the statement was made by such person in the ordinary course of business, and in
particular when it consists of any entry or memorandum made by him in books kept in the
ordinary course of business, or in the discharge of professional duty; or of an acknowledgment
written or signed by him of the receipt of money, goods, securities or property of any kind; or of
a document used in commerce written or signed by him; or of the date of a letter or other
document usually dated, written or signed by him.
or against interest of maker
(3) When the statement is against the pecuniary or proprietary interest of the person making it, or
when, if true, it would expose him or would have exposed him to a criminal prosecution or to a
suit for damages.
or gives opinion as to public right or custom, or matters of general interest;
(4) When the statement gives the opinion of any such person as to the existence of any public right
or custom or matter of public or general interest, of the existence of which, if it existed, he would
have been likely to be aware, and when such statement was made before any controversy as to
such right, custom or matter has arisen.
or relates to existence of relationship;
(5) When the statement relates to the existence of any relationship by blood, marriage or adoption
between persons as to whose relationship by blood, marriage or adoption the person making the
statement had special means of knowledge, and when the statement was made before the
question in dispute was raised.
or is made in will or deed relating to family affairs;
(6) When the statement relates to the existence of any relationship by blood, marriage or adoption
between persons deceased, and is made in any will or deed relating to the affairs of the family to
 which any such deceased person belonged, or in any family pedigree, or upon any tombstone,
family portrait or other thing on which such statements are usually made, and when such
statement was made before the question in dispute was raised.
or in document relating to transaction mentioned in section 13, clause (a);
(7) When the statement is contained in any deed, will or other document which relates to any such
transaction as is mentioned in section 13, clause (a).
or is made by several persons and expresses feelings relevant to matter in question.
(8) When the statement was made by a number of persons, and expressed feelings or impressions on
their part relevant to the matter in question.

According to the Evidence Act (1872), Oral evidence must be direct. The person who has
direct knowledge of the fact in question must come to Court and give evidence. One person must
not repeat the statements of another as to what the other saw, heard or perceived, or as to the
opinion that other holds.
But this rule is subject to the exceptions mentioned below in which statements are
admissible.
When a witness begins to repeat, as a truth, the statement of another person, he must be
stopped. If the party examining the witness wishes to use the statement as evidence he must
show that it is admissible under one or another section (s.136). The like rule applies to
documentary evidence (s.144); documents must be produced, except in circumstances in which
secondary evidence is admissible (s.64) And when oral evidence refers to the existence or
condition of any material thing the Court may require such thing to be produced (s.60).4

In summary, all oral testimony generally needs to be direct evidence. However, if a

witness is deceased, cannot be found, is in a condition where they cannot give evidence, or if
summoning them to court would incur excessive cost or delay, hearsay evidence can be
presented if it aligns with the eight exceptions outlined in Section 32 of the Evidence Act.
Currently, under the 2015 amendment to the Evidence Act, oral testimony is permitted
via video conferencing. This means that witnesses who would otherwise incur significant cost or

4
The Law of Evidence by The Late Sir Arthur Eggar, P-24
delay when summoned to court under Section 32 can now provide direct testimony using video
conferencing. This significantly increases the value of oral testimony.
However, in Myanmar, its use is still very limited, except for some child-related cases.
An analysis of this low usage reveals reasons such as technological difficulties or a lack of
internet connectivity. Another point is the shortage of technically proficient staff to assist courts
in obtaining evidence through video conferencing. In conclusion, I believe that establishing
Digital Forensic Departments and employing technically skilled personnel in courts would
greatly facilitate the examination of electronic evidence and the process of taking testimony via
video conferencing.