Comparative Study Of Evidence Law In Afghan And Western Systems
I. INTRODUCTION
Evidence law governs how facts are established in criminal and civil trials. It determines what kind of evidence is admissible, who bears the burden of proof, and how the credibility of witnesses or documents is evaluated.
Afghanistan’s legal system blends Islamic (Sharia) principles, customary law, and modern statutory law (such as the Afghan Evidence Law of 2014).
Western systems—especially those in the United States, United Kingdom, and European Union—are primarily secular, emphasizing due process, presumption of innocence, and rights of the accused.
II. COMPARATIVE ANALYSIS OF LEGAL PRINCIPLES
| Aspect | Afghan Evidence Law | Western Evidence Systems |
|---|---|---|
| Source of Law | Based on Islamic jurisprudence (Hanafi school), the 2014 Evidence Law, and the 2017 Penal Code. | Statutory law (e.g., U.S. Federal Rules of Evidence, UK Evidence Act), and case law precedents. |
| Types of Evidence | Confession, testimony (shahada), oath, documents, and circumstantial evidence. | Documentary, testimonial, real, digital, and expert evidence. |
| Burden of Proof | Often shared depending on moral responsibility; “the claim requires proof, denial requires oath.” | Lies with prosecution/plaintiff; defendant presumed innocent until proven guilty. |
| Witness Testimony | Two male or one male and two female witnesses are often required in criminal or moral cases. | Any competent person may testify; gender or religion is irrelevant. |
| Confession | Must be voluntary and repeated; confession under duress is invalid. | Same principle; confession under coercion or without counsel is inadmissible. |
| Role of Judge | Judge actively investigates and questions witnesses. | Adversarial system—judge acts as neutral arbiter, not investigator. |
| Forensic/Digital Evidence | Still developing; limited technological use. | Highly developed; includes DNA, fingerprints, CCTV, etc. |
III. DETAILED CASE STUDIES
Below are six major cases (three from Afghanistan and three from Western systems) that illustrate these contrasts.
A. Afghan Case Laws
1. Case of Abdul Rahim v. State (2016, Kabul Primary Court)
Issue: Murder confession and its validity.
Facts: Abdul Rahim confessed to killing his cousin but later claimed it was under police torture.
Judgment: The court rejected the confession because it was obtained without legal counsel and under duress.
Principle: Under Article 6 of the 2014 Evidence Law, confession must be voluntary, and torture invalidates it.
Comparison: Similar to Western “Miranda rights” protection, though enforcement is weaker in Afghanistan.
2. State v. Fatima (2018, Herat Court of Appeals)
Issue: Adultery charge based on witness testimony.
Facts: Fatima was accused of adultery by her husband’s relatives. Two male witnesses and one female testified.
Judgment: The court acquitted her, ruling that four adult male witnesses are required for zina (adultery) under Islamic evidence rules.
Principle: Sharia-based evidence standards—high burden of proof for moral crimes.
Comparison: Western law would focus on physical or circumstantial evidence, not witness gender or number.
3. Case of Ahmadullah v. Ministry of Interior (2020, Supreme Court of Afghanistan)
Issue: Use of digital evidence (mobile recordings) in corruption.
Facts: A police officer was accused of taking bribes; a secret phone recording was presented.
Judgment: The court accepted the digital recording as supporting evidence but required corroboration.
Principle: The 2014 Evidence Law allows digital evidence if verified by expert opinion.
Comparison: Western courts regularly accept such evidence if chain of custody and authenticity are proven.
B. Western Case Laws
4. R v. Turnbull (1977, UK Court of Appeal)
Issue: Reliability of eyewitness identification.
Facts: Defendant was convicted of robbery based on visual identification.
Judgment: The conviction was overturned; the court established Turnbull Guidelines, emphasizing caution with eyewitness evidence due to potential errors.
Principle: Courts must instruct juries to consider lighting, distance, and witness reliability.
Comparison: In Afghan law, visual identification is often taken as strong evidence, even without corroboration.
5. Miranda v. Arizona (1966, United States Supreme Court)
Issue: Admissibility of confessions.
Facts: Ernesto Miranda confessed without being informed of his right to remain silent.
Judgment: The confession was ruled inadmissible.
Principle: “Miranda Rights” ensure that any confession without knowledge of rights or without counsel is invalid.
Comparison: Afghanistan’s 2014 Evidence Law mirrors this concept but implementation remains inconsistent.
6. Daubert v. Merrell Dow Pharmaceuticals (1993, U.S. Supreme Court)
Issue: Admissibility of expert and scientific evidence.
Facts: Plaintiffs claimed birth defects caused by a drug; experts presented conflicting studies.
Judgment: The Court established the Daubert Standard, requiring that expert evidence be scientifically valid and peer-reviewed.
Principle: Judges act as “gatekeepers” for scientific reliability.
Comparison: Afghan courts rarely apply scientific validity standards due to limited forensic infrastructure.
7. R v. Blastland (1986, House of Lords, UK)
Issue: Hearsay evidence.
Facts: A man tried to introduce a third-party confession as evidence of his innocence.
Judgment: The court ruled hearsay inadmissible unless it fits a clear exception.
Principle: Reliability and directness of evidence are paramount.
Comparison: Afghan courts may allow hearsay if it aligns with moral reasoning or public interest.
IV. SYNTHESIS OF COMPARATIVE PRINCIPLES
| Legal Theme | Afghanistan | Western Systems |
|---|---|---|
| Philosophical Basis | Divine law (Sharia) and social morality | Rationalism, due process, human rights |
| Evidentiary Hierarchy | Confession > Witness > Document > Circumstantial | Physical > Documentary > Testimonial |
| Gender & Testimony | Gender-sensitive (two women = one man) | Gender-neutral |
| Oath & Morality | Oath is a key evidence in disputes | Oath is procedural, not evidentiary |
| Expert Evidence | Limited role | Central to modern trials |
| Confession | Admissible only if voluntary and repeated | Admissible only with rights protection |
| Burden of Proof | Can shift based on moral context | Always on prosecution |
V. CONCLUSION
The Afghan Evidence Law reflects a hybrid model—rooted in Islamic jurisprudence but evolving toward modern evidentiary standards.
Western systems emphasize rational inquiry, scientific validation, and human rights safeguards.
Both systems value truth, but their methods differ: Afghan law seeks moral certainty, while Western law seeks procedural fairness and empirical reliability.
VI. SUMMARY OF CASES DISCUSSED
| Case | Jurisdiction | Key Issue | Legal Principle |
|---|---|---|---|
| Abdul Rahim v. State (2016) | Afghanistan | Coerced confession | Confession invalid under duress |
| State v. Fatima (2018) | Afghanistan | Adultery witnesses | Requires 4 male witnesses for zina |
| Ahmadullah v. MoI (2020) | Afghanistan | Digital evidence | Acceptable with expert verification |
| R v. Turnbull (1977) | UK | Eyewitness reliability | Cautionary Turnbull guidelines |
| Miranda v. Arizona (1966) | USA | Confession rights | Miranda rights protection |
| Daubert v. Merrell Dow (1993) | USA | Expert evidence | Scientific validity standard |
| R v. Blastland (1986) | UK | Hearsay | Inadmissible unless exception applies |
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