Law of evidence assignment

Question 1 Introduction

In law of evidence, a person’s “character” is understood as his propensity or disposition to behave in a certain way. This is different from habit and more like behavioral traits that are more deeply ingrained. “he has a bad character” usually means that he is given to wicked acts, and if one were asked to justify such a statement one would usually refer to incidents of past bad conduct by the person in question.

The is however an older meaning to character, namely a person’s reputation. In the school for scandal, for example, the word is constantly used in this way. When the hypocrite Joseph surfaces is discovered trying to seduce lady Teazle, he says that his character is ruined, which shows that until one is found out there may be a divergence between one’s character in this sense and one’s “real” character or disposition1.

The general rule is that the prosecution may not adduce evidence of the accused bad character but the accused may adduce evidence of his own good character. This rule is subject to same exceptions in the criminal procedure act 51 of 1977. In this part of the assignment the law governing character evidence, its inadmissibility, its admissibility or exception, relevant statutes and cases will be discussed to show why the ample of the accused violent nature, cannot be adduced as eviden1ce in court. Good character

The accused is always unfitted to adduce evidence of his own good character either by calling a witness to testify to it or by testifying to it himself. A witness who testifies to the accussed’s good character may, in theory speak only of his reputation, but when an accused testifies he cannot give evidence about others say about his reputation; he may only say that his conduct has been good in certain respects.

When the accused gives evidence of his own good character it is therefore normally recital to his previous good acts2. In Rv Rowton (1865), 169 ER 1497 (CBP.418), a school master was charged with indecent assault, several witnesses gave him “an excellent character, as a moral well conducted man” the crown (prosecution) called a in reply a witness, a former student, who stated that in my opinion” the accused’s character was “that of a man capable of the grossest indecency and the most flagrant immorality.” The issues before the court were,

  1. What does reputation mean?
  2. Was the crown entitled to reply to evidence of good character of the accused?

Was the answer improper? Holding, the court ruled

  1. General reputation in the community
  2. Yes, yes conviction quashed.

The court’s reasoning was, evidence of character means evidence of general reputation in order to understand the tendency and disposition of a man’s mind towards committing or abstaining from committing the crime to which he is accused3. Any evidence of good character of the accused should be restricted to the man’s general reputation and must not extend to the individual opinion of a witness.

Any evidence called to rebut this evidence of good character must be of the same general description showing that the man’s general reputation is bad. An accused can adduce evidence of his own good character and only, only then can the prosecution be allowed to adduce evidence of his bad character to rebut his evidence. Bad character

Unless the accused puts the matter in issue by adducing evidence of his good character, the prosecution is not ordinarily entitled to lead evidence solely for purpose of proving his character to be bad. Under section 197 of the criminal procedure act 1977 the grounds upon which the accused may be cross-examined to show bad character. Where the accused does adduce evidence of good character the prosecution is entitled to try to set the record straight1. This may be done in three ways;

a) Cross-examination of the accused Section 197 (a) he or his legal representative asks any question of any witness with a view to establishing his own good character or he himself gives evidence of his own good character, or the nature or conduct of the defence is such as to involve imputation of the character of the complainant o2r any other witness for the prosecution. He may be cross examined upon his misconduct or previous conviction.

b) Cross-examination of character witness A witness who testifies to accused’s good character may be cross-examined to test the accuracy of his evidence and in England, it has been said he may even be asked whether he is aware of the accused’s previous convictions. In the leading case of R v Winfield the court of criminal appeal went as far as to say that the witness might even be asked about convictions which are irrelevant to whether the accused is likely to have committed the offence charged.

c) Evidence of bad reputation Although it is most unusual, the prosecution may counter evidence of good character by calling a witness to swear to the accused’s bad character. In R v Rowton the accused was a school master charged with indecent assault on a pupil. He called witnesses to his good character, the prosecution replied by calling a witness who said; “I know nothing of the neighborhood’s opinion but in my opinion and my brothers who were also pupils of his, is that his character is that of a man capable of grossest indecency and the most flagrant immorality”. The conviction was quashed on the ground that the witness’s own opinion was inadmissible. Previous convictions

Section 211 of the criminal procedure act 1977 states that; “Except where otherwise expressly provided by this Act or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such3 proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no accused, if called as a witness, shall be asked whether he has been so convicted”.

Previous convictions which are irrelevant merely to show bad character would also be inadmissible at common law. On the other hand, a previous conviction would be admissible if, relevant to an issue under the similar-fact rule and this principle is presumably “expressly” provided for in the CPA by section 252, which incorporates the rules of English law in force 30th may 1961.

The commission of prior offences may be relevant to show that the accused had knowledge of the particular fact and so rebut the defence of ignorance. In R v Killer and parker the accused were charged with theft by false pretences in selling with pieces of glass diamonds. Evidence that they had previously attempted to sell glass diamond was held to be admissible to rebut their defence that they genuinely thought they were selling diamonds. Conclusion

In conclusion the ample evidence showing the violent nature of the Accused X will not be admissible because of the general rule against giving evidence of bad character of the accused person. However with the provisions of the criminal procedure act 51 of 1977 in section 197, should the Accused X or his legal representative or his witness adduce evidence to show his good character, I as the public prosecutor will be allowed to adduce evidence of his violent nature, to rebut the evidence of his supposed good reputation.

As far as the previous conviction is concerned, the general rule does not allow me to adduce evidence of his previous convictions but this is also subject to some statutory exceptions in this case because Accused X is being tried for the offence I may adduce evidence to show that he is a habitual offender.

Question 2 Hearsay rule

Introduction Hearsay is “second-hand” information. It occurs when a witness testifies not about something they personally saw or heard, but testifies about something else told to them or said they saw1. Hearsay usually i4nvolves an attempt to get the some crucial fact entered into evidence that cannot be entered into evidence by any other means. The constitutional due process danger that this represents is that it deprives the other side of an opportunity to confront and cross-examine the “real” witness who originally saw or heard something.

Care must be taken to avoid hearsay from consisting of rumors, gossip, or scuttlebutt. There are times when hearsay is the right thing to do- as in cases where a young child has been molested, and the times when hearsay is the only thing to do, as in cases where the original witness has died or is unavailable2. Hearsay is dangerous evidence, and there are basically four dangers of it: Perception, memory, narration and uncertain. (i) The main reason behind the exclusion of hearsay rule.

The reason behind hearsay evidence rule can be seen by comparing the acceptance of direct evidence and hearsay. Direct evidence is given under Oath (with potential criminal liability for “perjury” if the testimony is subsequently proven false) In adducing direct evidence (that is, recollection of a witness In court) the court considers how the witness would have perceived the event at the time, potential ambiguities, and the witnesses sincerity. These can be tested in cross-Examination. A statement reported in hearsay is not generally subject to these safe guards. The person making the original statement was not testifying under oath, and was not subject to cross Examination.

Even assuming that the witness reporting the original statement does so completely truthfully, it remains possible that the person making the original statement was lying, joking or exaggerating. It is also possible that the witness testifying at a trial misunderstood the original statement. The court has no way to assess these possibilities, except via testimony of the witness reporting the hearsay. Although hearsay rule is directed only at references to statements asserted for the truth of their contents, the courts were alive to the dangers of circumstantial as well as direct evidence.

The hearsay rule operates in two ways:

(a) it forbids using credit of an absent declaring as the basis of an inference, and

(b) it forbids using in the same way the mere evidentiary fact of the statement as having been made under such circumstances3.

The nature of the genuine of allowing a court to make an appropriate inference about the nature of such evidence has led to misunderstanding about the nature of hearsay. A different rationale can be found in the requirement of justice that the accused is entitled to face his or her opponents. The principle finds support in the European convention of human rights [articles 6 (1) and 6 (3) (d)] and in the United States the sixth amendment of its constitution (it’s principles tracing back to raleigh’s trial). (ii) Five common law exceptions to hearsay rule

1. Dying declarations

This is one of the oldest exceptions to the hearsay rule at common law. The basic assumption, be it right or wrong, is that the solemnity surrounding the act of dying, or a belief that one is dying, tends to impel truthfulness. Of course, this is an imperfect assumption, but the law since ancient times has long held that the risk of admitting a deceitful dying declaration is far outweighed by the need to protect the public from homicidal criminals who might go free if unidentified by any other means.

Most state-level evidence rules restrict this exception to murder trials only, and some states actually require death, not just the belief of immanent death, and yet other states have had controversies involving victims that 5lapse into coma or recover from critical injuries. Courts always have the right to grant as much value or weight to a dying declaration as they see fit.

Before a dying declaration can be admitted into evidence, the circumstances surrounding the death, and more importantly, the events leading up to the defendant's role in conduct that might have led to the death or dying declaration, need to be described in detail. In practice, medical doctors and other experts may also be called to testify about states of consciousness that preceded death, but it is highly unlikely that the court will overturn years of precedent in the face of any expert testimony suggesting that people sometimes lie before dying1.

2. Spontaneous or excited utterances

This is an English common law exception to the hearsay rule that dates back to the mentalist psychology inherent in utilitarian philosophy. The reader will remember that utilitarian philosophy is based on the principle that all human behavior involves planning, reflection, and self-interest. Eliminate that reflection and you've got behavior that isn't always self-interested, and more likely to be sincere and trustworthy. The law has always recognized immediacy as a sign of truth. It takes time and reflection to lie. Also, according to the law, it takes a shock of some momentous occasion to elicit a spontaneous utterance.

The Federal Rule of Evidence (Rule 803) on this matter prefers to call such things "excited" utterances, and defines them as "statements made to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition." In practice, this exception usually involves 911 calls or quick police responses where the victim is found hysterical, in great pain, frightened, and/or bleeding profusely, as with a domestic violence, battery, or rape incident. In such cases, the court will usually allow the police officer to testify on behalf of the victim, and such testimony is not considered hearsay, but "the event speaking and not the speaker" (Pennsylvania v. Zukauskas 1983).

3. Res gestae or present sense impression

Where the res gestae exception exists, a party is allowed to admit evidence which consists of, among other things, everything said and done in the course of the incident or transaction that is the subject of the trial. The evidence admitted under res gestae can be hearsay or non-hearsay. For example, a firearm confiscated by police in the course of arresting a drug dealer can be taken as part of the usual transaction of drug dealing, or, to give another example, pornography confiscated from a child molester might be taken as inferring the victims were shown pornography.

The idea of res gestae is that some words and condu6ct are so closely associated with an occurrence that they can be considered part of the "whole story" and as such their report does not violate the hearsay rule. A voir dire hearing is usually required before res gestae evidence can be admitted, and in order to spare the court from being presented any prejudicial matter. There is a bit of variation in how different states and judges handle res gestae exceptions, and the modern trend is to use the less confusing "present sense impression" exception.

4. Admissions and declarations against one’s interests

These involve long-established common law exceptions to the hearsay rule, and consist of various types, of which admissions (acquiescing in the statement of another or remaining silent in the face of accusations) are a special type. It may be helpful to think of this category of exceptions as similar to the way police investigators go about obtaining admissions or "soft" confessions. There are two main types of declarations against interests -- against pecuniary interest and against penal interest. The rationale behind this group of exceptions is the legal system's confidence in the notion of "probability of truthfulness."

When a person says or writes something that isn't exactly in their best interests, the legal system assumes that those statements probably would not have been made unless they were true. At least such statements would be trustworthy if corroborated by other facts, and FRE 804(b)(3), which governs this exception, requires some corroborating facts. For example, if an arson-for-profit case involves the testimony of a co-worker who says he heard the boss say "this place would be better off burnt down," and the boss denies ever saying this, the testimony of the co-worker would be admissible as hearsay if there were corroborating facts such as evidence that the business was doing badly.

This is an example of declaration against pecuniary interest, since the co-worker might be held liable in civil court by the insurance company for their part in the arson-for-profit scheme. What are much more common, however, are declarations against penal interest, in which the hearsay witness is at risk of being charged as a co-conspirator to the crime1. In fact, declarations against penal interest are so common that at least one commentator (Davenport 1972) has called this exception the "co-conspirator exception."

5. Business and public records

The law assumes that organizations and individuals create records for a reason, and have a vested interest in seeing that they are accurate. There are two ways to get such records admitted into evidence, either under the awkward authentication rule of documentary evidence or under the business records exception to the hearsay rule.

Most lawyers prefer the hearsay exception route, and it can be said this is the most expanding area of hearsay exceptions. All sorts of records can be admitted: school records, medical records, financial records, and computer records (to name a few). The absence of records can also be used to make hearsay inferences about the conduct of an organization or individual. About the only type of record that is excluded are police investigatory records where police have extracted second-hand information.

Rap sheets and arrest records are, also, for the most part, excluded, especially in criminal trials where such evidence would be unfairly prejudicial. Previous arrest records are widely used, however, in sentencing hearings and civil trials. To be admissible, hearsay records must follow the best evidence rule by being recorded in the normal course of doing business and at the time the business was conducted. Computer records best satisfy this rule, and the field of computer forensics has opened the door to a vast number of possibilities in this area.