Document Type : Research Paper

Author

• Badie Fathi

Assistant Professor, Private and Economic Law Group, Allameh Tabataba’i University, Tehran, Iran

Abstract

This article delves into the distinct roles and implications of indices in evidence law within civil, criminal, and administrative lawsuits. While Iranian myths and epics, such as the story of Siavash and the Prophet Joseph in the Quran, exemplify the use of presumptions and indices as evidence, there has been limited scholarly focus in Persian on the differences between these two concepts. This paper aims to analyze these concepts, clarify their respective functions, and explore their impact on legal proceedings. Despite the legislative tendency to conflate indices with presumptions, it is important to recognize that they hold different positions within the hierarchy of evidence.
Historically, presumptions and indices have served as evidence in judgments, suggesting their long-standing use in various legal systems. However, Persian literature lacks an in-depth analysis of how these concepts differ from traditional forms of evidence. This article seeks to fill that gap by exploring the terminologies involved and their specific applications in lawsuits. Although legislators often pair indices with presumptions, a distinction exists: indices do not carry the same weight as presumptions.
 
Literature Review

In Persian legal literature, numerous books on evidence law explain the probative value of presumptions. Dr. Nasser Katouzian, for example, has written articles on the subject in the Journal of Law and Political Science (Summer 2004, University of Tehran, pp. 125-154). However, there is little discussion of the distinction between presumptions and indices, nor an exploration of the probative value of indices.
Materials and Methods

This study adopts a descriptive-analytical approach and utilizes library research methods to examine the relevant data. The aim is to assess the differences between presumptions and indices, analyze their respective roles in legal proceedings, and discuss how these differences affect the application of evidence law in practice.
Results and Discussion

Today, judicial decisions—particularly in criminal procedures—often rely on indices. This widespread use of indices underscores the need for a deeper theoretical analysis of their function. While many assume that there is no meaningful difference between indices and presumptions, it becomes evident that these two concepts differ significantly within the law of evidence. Indices are ranked lower than presumptions in terms of their evidentiary value.
Although legal scholars have paid comparatively little attention to this distinction, indices have been extensively utilized in practice by judges and investigators. This practical usage warrants a more comprehensive theoretical understanding. This article aims to clarify the position of indices within evidence law, compare them with presumptions, define indices and their types, and explore their value at various stages of criminal, civil, and administrative proceedings.
Conclusion
A presumption is generally comprised of two or more indices. Indices are ranked lower than presumptions in the hierarchy of evidence, and, like presumptions, they can be categorized into indices of facts and indices of law. Unlike presumptions—whether rebuttable or irrebuttable—indices can always be rebutted.
The identification and evaluation of both indices and presumptions depend heavily on the judge’s experience, intelligence, and expertise in the relevant field. To protect legitimate rights and freedoms, as well as uphold the presumption of innocence (a legal principle stating that every person should be considered innocent until proven guilty), it is advisable to avoid treating a single index as a presumption. Generally, a claim should not be proven with only one index but rather through a combination of two or more indices.
In some cases, such as when the law specifies that certain documents or business records must be provided as positive evidence, or in family law cases where a husband's refusal to take a drug test is used as evidence to support his wife's claims, indices may play a crucial role. In such scenarios, failure to provide the relevant document or an unreasonable justification for not taking the drug test can serve as indices that influence the court’s decision.
Indices function differently at various stages of legal proceedings. In criminal cases, indices can justify actions such as arraignment, arrest, and the issuance of search warrants. However, until an index rises to the level of a presumption and convinces the judge’s conscience, it cannot lead to a conviction.
In civil and administrative cases, indices that do not reach the level of a presumption may establish urgency in issuing provisional orders, suspending execution, or delaying the enforcement of a judgment. However, they cannot result in a final judgment convicting the defendant. It is important to note that legislators have occasionally misapplied indices and presumptions in legal statutes. Such errors can impact the fairness and clarity of legal proceedings, highlighting the need for a more refined understanding of these concepts within the legal system.

Keywords

• Evidence Law
• Presumption
• Indices
• Witness

Main Subjects

• Code of Criminal Procedure