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Published: Fri, 02 Feb 2018
Evidence and witnesses
R v Kearley (1992) 2 AC 228. The defendant was convicted of an offence of drug trafficking. One of the central pieces of prosecution evidence was that large numbers of people had telephoned the defendant’s house asking for drugs. On appeal, the defense argued that this evidence was inadmissible Hearsay — the police were reporting statements made by persons unknown, who could not themselves be called as witnesses. The court of appeal rejected this argument, on the grounds that the police reports were evidence of the caller’s beliefs about the defendant, not of the truth of the allegation that the defendant was a drug dealer. The defendant appealed to the House of Lords. The majority view of the House of Lords was that this telephone evidence was not excluded by the hearsay rule, so far as it went to show that a pattern of behavior was associated with the defendant. On this view it was not the visitor’s statements that were evidence of the matters stated, but that their behavior was evidence of their state of mind. However, the majority view was that, if evidence of the caller’s state of mind was not excluded by virtue of being hearsay, then it was still inadmissible, because it was logically irrelevant.
Contemporaneous statements that reveal the state of mind of the person is an element of res gestae. These include facts which show or constitute motive, preparation to any fact in issue are relevant. Motive is that which induces a person to act in a certain way. The state of mind is inferred from the circumstances and relations. R v Blastland  AC 41. B was convicted of murder. One of the issues that he sought to use in his defense that another person (M) had expressed knowledge of the murder before it was revealed to the public was held to be inadmissible. M was not called to give evidence, so at the trial it was held that if evidence of M’s statement were adduced by D, it would be Hearsay. The House of Lords accepted that, as what was at issue was M’s state of mind, not the facts stated by M, this evidence might escape the hearsay rule.
Motive is usually used in connection with Criminal Law to explain why a person acted or refused to act in a certain way—for example, to support the prosecution’s assertion that the accused committed the crime. If a person accused of murder was the beneficiary of a life insurance policy on the deceased, the prosecution might argue that greed was the motive for the killing.
Proof of motive is not required in a criminal prosecution. In determining the guilt of a criminal defendant, courts are generally not concerned with why the defendant committed the alleged crime, but whether the defendant committed the crime. However, a defendant’s motive is important in other stages of a criminal case, such as police investigation and sentencing. Law enforcement personnel often consider potential motives in detecting perpetrators. Judges may consider the motives of a convicted defendant at sentencing and either increase a sentence based on avaricious motives or decrease the sentence if the defendant’s motives were honorable—for example, if the accused acted in defense of a family member.
In criminal law, motive is distinct from intent. Criminal intent refers to the mental state of mind possessed by a defendant in committing a crime. With few exceptions the prosecution in a criminal case must prove that the defendant intended to commit the illegal act. The prosecution need not prove the defendant’s motive. Nevertheless, prosecutors and defense attorneys alike may make an issue of motive in connection with the case.
For example, if a defendant denies commission of the crime, he may produce evidence showing that he had no motive to commit the crime and argue that the lack of motive supports the proposition that he did not commit the crime. By the same token, the prosecution may produce evidence that the defendant did have the motive to commit the crime and argue that the motive supports the proposition that the defendant committed the crime. Proof of motive, without more evidence tying a defendant to the alleged crime, is insufficient to support a conviction.
A hate Crime is one crime that requires proof of a certain motive. Generally, a hate crime is motivated by the defendant’s belief regarding a protected status of the victim, such as the victim’s religion, sex, disability, customs, or national origin. In states that prosecute hate crimes, the prosecution must prove that the defendant was motivated by animosity toward a protected status of the victim. Hate-crime laws are exceptions to the general rule that proof of motive is not required in a criminal prosecution.
In Civil Law a plaintiff generally need not prove the respondent’s motive in acting or failing to act. One notable exception to this general rule is the tort of Malicious Prosecution. In a suit for malicious prosecution, the plaintiff must prove, in part, that the respondent was motivated by malice in subjecting the plaintiff to a civil suit. The same applies for a malicious criminal prosecution.
Statements which accompany and explain a relevant fact that is, if the act is admissible so is the statement. Evidence of an indirect nature which implies the existence of the main fact in question but does not in itself prove it that is, the existence of the main fact is deduced from the indirect or circumstantial evidence by a process of probable reasoning. The introduction of a defendant’s fingerprints or DNA sample is an example of circumstantial evidence. These facts must explain the circumstances surrounding and under which an offence was committed or which provided an opportunity for the taking place of the events. Circumstantial evidence is evidence in which an inference is required to connect it to a conclusion of fact. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need for any additional evidence or the intervening inference. On its own, it is the nature of circumstantial evidence for more than one explanation to still be possible. Inference from one piece of circumstantial evidence may not guarantee accuracy. Circumstantial evidence usually accumulates into a collection, so that the pieces then become corroborating evidence. Together, they may more strongly support one particular inference over another. An explanation involving circumstantial evidence becomes more valid as proof of a fact when the alternative explanations have been ruled out.
Circumstantial evidence allows a Trier of fact to deduce a fact exists. In criminal law, the inference is made by the Trier of facts in order to support the truth of assertion (of guilt or absence of guilt). Testimony can be direct evidence or it can be circumstantial. If the witness claims they saw the crime take place, this is considered direct evidence. For instance, a witness saying that the defendant stabbed the victim is direct evidence. By contrast, a witness who says that she saw the defendant enter a house, that she heard screaming, and that she saw the defendant leave with a bloody knife gives circumstantial evidence. It is the necessity for inference, and not the obviousness of a conclusion, that determines whether or not evidence is circumstantial. Circumstantial evidence from which the defendant’s guilt may be inferred (Note that an inference of guilt could be incorrect if the person who actually fired the weapon was somebody else.)On the other hand, the additional circumstantial evidence of the defendant’s fingerprint on the trigger would dovetail with this piece to provide corroborating evidence.
Explanatory and identification facts; these are facts which may not constitute a fact in issue but which may be regarded as forming parts of the facts in issue in that they accompany or tend to explain the main facts such as identity, names, dates, places, description, circumstances, and relation of the parties or any other explanatory facts. It is an important element of the res gestae and provided for under s.8 of the Uganda evidence Act. Eyewitness identification, in criminal law, is evidence received from a witness “who has actually seen an event and can so testify in court”. In the United States and in the United Kingdom, the identification made by a putative witness must be further confirmed by a police lineup, also referred to as an identity parade, before the witness testimony may be presented as evidence in criminal proceedings.
Identification parade is a group of persons including one suspected of having committed a crime assembled for the purpose of discovering whether a witness can identify the suspect. One of the most troublesome areas in the law of evidence is that of identification. A defendant will very frequently not contest that an offense was committed, but deny that he was the person who committed it. If he does, then the prosecution will have to lead evidence that identifies him as the perpetrator. Most often, this evidence is an eye-witness account. However, such accounts are notoriously unreliable. It is desirable to hold an identification parade if the witness has already given sufficient information for a tentative identification to be made. However, in practice the witness may be able to recognize the perpetrator, but not describe him well enough for the police to determine who he is. In such a case, the Evidence Act s.8 allows the police to take the witness to the place where she saw the perpetrator, or where he is likely to be, so that she can pick him out. However, where practical, the police should record a description before undertaking this exercise. The reason for this is that witnesses usually want to be helpful, and there is a strong compulsion to pick somebody, so it is useful to have an alternative description as a comparison.
In the R V Turnbull (1977) 1977 QB 224, the Court of Appeal laid down important guidelines for judges in trials where identification evidence was disputed. Warning that has to be given to juries in identification cases:
a) Amount of time the suspect was under observation by the witness
b) Distance between suspect and witness
c) Visibility at the time the witness saw the suspect
d) Obstructions between suspect and witness
e) Knows suspect or has seen him/her before
f) Any particular reason for the witness to remember him suspect
g) Time lapse since witness saw suspect
h) Error or material discrepancy in the description given by witness
The Turnbull guidelines should always be followed by judges where the possible mistaken identification of an accused is an issue. Even where an accused has admitted being present at the scene of an offence, there will still be occasions where a judge should give such a direction, as required by the guidelines (R v Thornton 1995). Where voice identification is an issue, the Turnbull guidelines should be used to direct the jury to the ‘quality’ of the evidence (R v Hersey 1998).
While a key piece of evidence in a case, pre-trial identifications are unreliable pieces of evidence. Eyewitness identifications were used in 75% of the cases overturned by newly available DNA tests. Unfortunately, misidentifications will continue to happen and juries will continue to give them too much weight during deliberations because of the general public’s mistaken belief in their accuracy.
Numerous studies have shown just how unreliable pre-trial identifications can be. 20% of the time the witness selects someone other than the suspect. If the witness does not recognize the suspect or is not 100% certain, it is highly likely that they will guess because 90% of the public expect the suspect to be present, despite being told that he might not be.
Often, the witness only saw the suspect for a brief moment, and depending on the circumstances, additional factors may be present that further impact the reliability of the identification. Such factors include, but are not limited to: lighting conditions; the duration of the event; violence; the age, sex and race of the perpetrator; the length of time between the event and the identification and the acquisition of post-event information that may distort the memory.
Photo arrays also present a few unique reliability problems. For example, the witness may have trouble discerning the suspect’s height and weight and the photograph might be old.
Under s. 9 of the evidence act of Uganda common intent is where there is reasonable ground to believe that 2 or more people conspired together to commit an offence or actionable wrong, anything said, done or written by any one of them in reference to their common intention is relevant against the other conspirators for the purpose of proving the existence of the conspiracy
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement. There is no limit on the number participating in the conspiracy and, in most countries, no requirement that any steps have been taken to put the plan into effect (compare attempts which require proximity to the full offence). For the purposes of concurrence, the actus reus is a continuing one and parties may join the plot later and incur joint liability and conspiracy can be charged where the co-conspirators have been acquitted or cannot be traced. Finally, repentance by one or more parties does not affect liability but may reduce their sentence.
There must be a real agreement with the parties having agreed all the major details of the “crime” or “crimes” (not including other inchoate offences) to be committed within the territorial jurisdiction of the court, and the parties must “intend” or “know” the facts which make the conduct criminal even where the full offence is strict. Thus, the mens rea of conspiracy is a completely separate issue from the mens rea required of the substantive crime: Attorney General ex parte Rockall (1999) Crim LR 972 where the issue of corruption in public office was complicated by the presence of the presumption of corruption in s2 Prevention of Corruption Act 1916 unless the contrary is proved in respect of payments to persons in public employment (a provision that probably breaches the human rights requirement as to a presumption of innocence).
The so-called Wharton’s rule (also known as “Concert of Action Rule”) regarding conspiracies is relatively simple: Unless the statute specifies otherwise, when two people are required to commit a crime, such as gambling or prostitution, there can be no charge of conspiracy where only two people are involved. The reasoning behind this rule, which has been enacted in many states, is that conspiracies, by their very nature, bring together individuals with different resources and abilities. This group action is dangerous. However, where there are only two people involved in a crime that requires two people to commit it, there is no concerted group action. To prosecute gambling or prostitution as a conspiracy, most states require that more than two people be involved.
The conduct of the alleged party is an element in determining whether the fact is res gestae or not. Under s.7 (2) Evidence Act 1909 (Ch 6) The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to that suit or proceeding, or in reference to any fact in issue in the suit or proceeding or relevant to it, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if that conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent to the fact in issue or relevant fact. The conduct of a person concerned in a crime would become relevant if his conduct is related with the incident. To regard a conduct to be relevant it must be closely connected with the incident concerned. If the Court considers some conduct to be relevant then the conduct must help the Court in arriving to a conclusion in the controversy. The conduct must have a bearing over the decision. If so happens, then, notwithstanding the conduct was previous or subsequent, it shall be thoroughly scrutinized by the Court. A conduct to become relevant under section 7(2) need not become simultaneous or spontaneous, that is to say with that very incident. It may become subsequent and previous to the main fact in issue. For example complaints of the deceased made before two months of his death becomes admissible. Though conduct forms important evidence under the scope of section 7 it must be remembered that other than direct conduct, if seen by witness, will not be of definite bearing over the case. A conduct which is not directly linked to the facts in issue but some or the other way connected to it is as good as circumstantial evidence which will be difficult for the Court to prove. Therefore it is imperative that the Court scrutinize the conducts mainly previous and subsequent very carefully and thoroughly. If two similar incidents have taken place in similar period of time and a person is connected with one and not the other which has come for decision before the Court, in these circumstances, Court should prepare itself to avoid any kind of judicial errors that may take place.
In Bhamara Vs State of M.P AIR 1953 Bhopal 1: In this case a person X was cultivating his land. Another person Y was passing by the land. He called X to chat with him. During the interaction some hot words were exchanged and altercation ensued. X battered in the head to Y. Two bystanders namely A & B rushed to that place. Seeing other people coming to that spot X tried to escape but was caught by C. The conduct of escaping of the accused was held a very relevant subsequent conduct.
Mistri Vs King Emperor AIR 1938 (6) ALJ 839: A person was charged for the murder of a girl. During the investigation the accused took the police to a place and pointed out and produced some ornaments which the deceased was wearing at the time of the incident took place. In the trial of the accused the facts that he took the police to locate the place where the ornaments were kept hidden and that the accused given the ornaments to the police were allowed to be proved under section 8 of the Act as these facts showed the subsequent relevant conduct of the accused.
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