Characteristic of a Witness In Criminal Proceedings - Dissertation Example

?To what extent is a characteristic of a witness taken into account in criminal proceedings? To establish accurately the character integrity of a witness, and the trustworthiness of evidence, is an essential aspect in all successful rulings. Every rational individual could be a witness; however, the trustworthiness of his/her testimony will depend on his/her interest in proclaiming or covering the truth. The integrity of a witness, therefore, should only be questioned when there are connections, familiarity, or resentment, existing between him/her and the accused.1 Evidence from only one witness is not adequate because while the defendant refutes what the witness corroborates, truth stays undecided. The integrity of a witness is inferior, as the crime’s heinousness is superior. Experts on penal laws have taken on a different belief, that the trustworthiness of a witness is superior, for the criminal act is more unspeakable.2 In view of the above, this essay tries to answer the question: “to what extent is a characteristic of a witness is taken into account in criminal proceedings?” In order to clearly illustrate the arguments, this paper includes case law and statutes that govern the role played by witnesses in criminal cases. The author uses extensive library research and literature review. Role of Witnesses in Criminal Cases One of the objectives of criminal law is to make sure that the public honour the legal system in general and avoid perpetrating crimes. But, if an individual perpetrates a criminal act, their culpability should be determined through a properly established process and a justified penalty must be given. Criminal law specifies the provisions for implementing procedures in criminal cases, lays down the groups sanctioned to perform these procedures, the kind of procedures and the outcomes of violating the prerequisites of the law. As specified by the Law on Criminal Procedure, one of these processes is the evaluation of witnesses.3 The notion of witness should be viewed from two perspectives. Firstly, the identity and character of the witness, and, secondly, the reason the witness is involved in the trial; in short, the focus of the witness’ evidence should be determined. Criminal law permits and mandates the pertinent groups to determine the accuracy of evidence so as to take appropriate actions or make judgments.4 Evidence can be verified through a variety of ways, such as interrogating of witnesses. The interrogation of witnesses is strongly governed by a chain of legal prerequisites verifying the identity and character of the witness, those who should not be allowed as witness, the duties and rights of a witness, the handling of witnesses by officials carrying out the procedures, the interrogation methods, the principles, the assessment of the capacity of the witness to testify, the methods to document evidence, and the outcomes of breaching the abovementioned prerequisites.5 Evidence from a witness is a statement by an individual who is not the focus of criminal procedures. The statement is given to the group carrying out the procedure which will exercise it to assess the evidence on account of which the judgment shall be given. For example, the statement can be raised by the court in passing judgment, the prosecutor when making a decision whether to impeach, and by the accused when petitioning against the charges.6 Hence, witnesses play a very important role in criminal cases. Their importance goes above legal systems and is not confined to a specific form of bureaucratic structure or stage in the growth of a legal system. Even though recognised in different periods and territories as a useful and justifiable ground in which to establish a criminal sentence, evidence given by witnesses has long been dealt with doubt. Witnesses could bend the truth, overlook relevant details, recall events inaccurately or simply misunderstand an incident. In addition, witness may be influenced or manoeuvred and their testimony may hinge on the questions which will be thrown at them. This clarifies the fact that witness evidence is not just greatly debated, but also independently controlled in the different doctrines and legal prerequisites which protect the right to a fair trial.7 The key method of policing witness evidence in the contemporary period is to regulate the way in which the testimony is heard and interrogated. Concepts like questioning and confrontation are hence usually described in relation to defence rights and technical conditions: the officials are obliged to make sure that the defendant is granted the technical rights to confront, or question, witness who present implicating testimonies.8 Such rules also possess an important evidence-related aspect. If the defendant is not, or is not adequately, granted the right to question the evidence given by a witness, the issue surfaces as to what degree that testimony can be exercised in the decision-making process. In several instances, it might be required to avoid making a judgment based on unverified witness testimonies.9 Character Witnesses Whether aimed at judgment or character, evidence from a character witness should illuminate the truth. The issue is not whether certain evidence is factual, but whether the main witness is an honest individual, and the Rule does not consider character witness evidence suggesting that s/he has heard the main witness and does not think that s/he is saying the truth.10 Dissimilar from character statement given to confirm behaviour during the incidents, the use of evidence in relation to credibility is to aid in evaluating character or behaviour at proceedings, so character evidence should illuminate honesty during proceedings. If the main witness is an accessory, particularly is s/he is the accused in a criminal trial, denouncing evidence by a character witness must be ruled out if it hinges on, or has been influenced by, feelings about the guilt of the accused of the alleged crime.11 Character evidence calls for a ‘basis’. The character witness, for reputation evidence, should be familiar with the neighbourhood where the main witness resides or works. The witness giving evidence about reputation does not have to live or work in that particular neighbourhood provided that s/he has a sufficient familiarity with that neighbourhood.12 The ‘basis’ condition for a character witness who is to present his/her judgment of the main witness is basically that s/he is acquainted with the main witness for a significant duration of time on a professional or personal way. In case the accused whose integrity as a witness is questionable, it is at best uncertain that the prosecutor must be allowed to hit back using individuals who became familiar with the defendant while carrying out fact-finding duties.13 Actual issues emerge at this point on satisfactoriness of foundation for a judgment on integrity. There is a large possibility that the judgment of the individual on trustworthiness is governed by, or included in, the individual’s certainty about the defendant’s guilt, and it is highly possible that the individual’s evidence will communicate to the jury the thought that it should indict the defendant for the alleged offence because s/he is a disagreeable person.14 One side may not give statement about the dishonest character of a second party until the second has presented evidence. As a rule, disparaging the defendant’s credibility requires cross-examining on earlier bad behaviours and indictments, but using character witnesses to present judgment or reputation statement is just as appropriate. A character witness, in general, cannot establish a witness is dishonest by bearing witness to particular actions. Testimonies against a witness’s character should put emphasis on dishonesty. Evidence of other characteristics, like demonstrating that witness is easily irritated or angered, is immaterial in assessing the possibility that s/he gives credible evidence in court. Apparently, there are no automatic set of laws, and symmetry matters: more freedom in exercising character evidence is proper for major witnesses, where other proofs of truthfulness is absent, and when character evidence appears highly evidential.15 As shown, character witness is one of the most problematic and debated domains of evidence law. It is mainly of value in criminal trials. Its relevance to civil trials is somewhat rare and restricted. Civil law continues to be uninfluenced by statutes and, thus, remains a being of common law.16 The relevance of character witness to criminal proceedings, in contrast, is multifaceted, usual, and frequently important to the result of the case. In view of the 2003 Criminal Justice Act’s thorough reorganisation of the law, independent statutes relate to proof of bad character and proof of good character.17 The latter is untouched by the Act and remains under rules of common law. The former is currently ruled completely by statute. The Act’s bad character prerequisites were officialised on December 2004.18 The defendant’s character has been an important concern in criminal proceedings, whether the defendant has in his/her life thus far preferred to adopt the character of someone with more temperate personality. If the defendant is an individual that has a record of good character, is that piece of information to be considered on his/her behalf on the matter of innocence or culpability, and if ever, to what degree and how? If s/he is an individual that has a record of bad character, what value, if any, could the prosecution obtain from the piece of information to indicate culpability of the crime currently charged? Such issues create critical concerns both over admissibility and relevance.19 Another issue, even though the bounds which divide it remain partly unclear, in spite of reforms in law in recent times, is what impact bad or good character has on the witness’s trustworthiness as regards to testimony presented by him/her on oath at a court proceeding. This issue is of great significance, but if the defendant is the witness under consideration, also has a clear, though less immediate impact on the final matter of innocence or culpability.20 In order to better understand these issues one should start with the definition of the term ‘character’. The 2003 Criminal Justice Act introduces the very first legal definition of ‘character’. ‘Bad character’ is defined in Section 9821 as: References in this Chapter to evidence of a person’s ‘bad character’ are to evidence of, or a disposition towards, misconduct on his part, other than evidence which--- (a)has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence. 22 The term ‘misconduct’ is defined in Section 112 as “the commission of an offence or other reprehensible behaviour.”23 The Act did not try to give a definition of good character. It would appear that bad character might be established by proof of particular actions perpetrated by the individual under consideration, as well as but not confined to earlier charges, and by reputation evidence, which is exclusively maintained as an evidence process of bad character by the Act’s ss. 99(2) and 118(1).24 The Act introduces full legal statute for the approval of proof of bad character in criminal trials. The witnesses’ bad character, as well as that of the defendant, may hold some bearing either to the issue of the witness’s integrity or the issue of culpability. In accordance to the common law, witnesses are under impeachment by being questioned regarding their bad character, under the authority of the jury to prevent too much questioning for the sake of the right to fair trial.25 Nevertheless, cross-examination as regards to matters applicable only to integrity are under the purported ‘finality rule’, which states that, “subject to some important exceptions, although a party may cross-examine on collateral issues, he must accept the witness’s answers on such matters as final, i.e., he may not adduce extrinsic evidence to contradict those answers.”26 On the contrary, if the matter which is the focus of the cross-examination is pertinent as well to an important matter in the case, like the matter of culpability, proof to oppose the testimonies of the witness could be adduced. The borders between evidence pertinent to credit and evidence pertinent to important matters are not constantly fully definite.27 In view of the 2003 Criminal Justice Act’s s.99, the finality rule should be viewed to have been abolished in to the extent that it relates to bad character evidence. The rule of common law on impeachment is applicable to all witnesses, excluding the defendant in a criminal trial.28 There are rare instances where in the bad character of an individual who is neither a witness nor an accused become applicable; for instance, where the defendant argues that his/her behaviour was planned as an honest dispute against blameworthy actions of another; or in instances where s/he argues that an accomplice perpetrated the crime accused, and tries to prove evidence of other crimes or bad behaviour on behalf of that disputation.29 The application of bad character evidence for the intent of impeaching a witness has constantly been limited to assaulting the witnesses’ integrity. Section 112(3)(a) expressly articulates the principle that a side is not allowed to impeach his/her own witness’s credit by common proof of bad character.30 Above all, other legal requirements considerably transformed the common law as regards to witnesses who are plaintiffs as well in trials for sexual crimes. The prerequisites in effect at present are those stated in s.41 of the 1999 Criminal Evidence Act and Youth Justice, on account of which there are rigid restraints on questioning about, or the confirmation of proof about the sexual actions of the plaintiff.31 The set of laws enclosed in this section are explicitly stated by the 2003 Criminal Justice Act’s s. 112(3) (b).32 Proof of sexual conduct is not proof of bad character; in spite of the extent of the meaning of ‘bad character’ stated in the 2003 Criminal Justice Act, it could in several instances be classified as culpable action, thus that there could be a certain form of overlap; still, proof of the sexual deeds of the plaintiff remains under s. 41 of the Act of 1999.33 Proof that an individual has been charged of a crime is permissible for the intent of establishing that the individual perpetrated the crime of which s/he was charged on account of the 1984 Police and Criminal Evidence Act’s ss. 73 and 74.34 The indictment of another individual could be pertinent to the culpability of the defendant, for instance where the defendant is accused with owning smuggled products, and the indictment of the offender is permitted for the intent of establishing that the products at issue are smuggled.35 The acceptability of proof of bad character of individuals besides the defendant is stated in the 2003 Criminal Justice Act’s s. 10036: (1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if37--- (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which--- (i) is a matter in issue in the proceedings, and (ii) is of substantial important in the context of the case as a whole, Or, (2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if38--- (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial. On the other hand, there is no straightforward meaning of ‘good character’ for the intents of the rules founded in R v Vye.39 For instance, earlier charges will not automatically render a defendant a ‘bad character’; especially if they are charges for minor crimes which bear no weight to integrity and occurred in the past. In such cases, the jury has the power to decide whether or not to act in compliance to R v Vye, but it should act in ‘absolute’ terms if the earlier charges can simply be considered as immaterial or of no importance as regards to the crime accused.40 Nevertheless, it does not mean that direction will be granted accordingly to individuals whose bad character is inadequate in terms of probative bearing to be permitted against them. A direction of good character is proper in the circumstances of individuals who the jury decides to be handled as though they are fully free from any form of bad character.41 In criminal trials, the defendant is permitted to confirm proof of his/her good character. It could be established either by character witnesses or in interrogation of witnesses summoned for the prosecution. The defendant in R v Rowton, indicted with licentious attack on a male child, used character witnesses.42 It was believed that this evidence must be restricted to reputation evidence of the defendant and must not admit evidence of certain commendable actions of the defendant nor statement of the witness’s view of his/her character. Even though this case was resolved before the 1898 Criminal Evidence Act, particularly, Section 1 of the Act which made the defendant a qualified witness for his/her own defence, the principle would seem to be valid even in cases where the good character evidence is presented by the defendant him/herself.43 Hence despite the fact that in the usual case the defendant would be a lot better capable to present proof of his/her character as shown by certain deeds of commendable behaviour, in contrast to his/her reputation evidence, s/he should limit him/herself to the evidence of reputation. Nevertheless, even though R v Rowton has not been conclusively repealed, at present it is not, in actual fact, rigorously followed.44 The rule of the common law within which in criminal trials reputation evidence is permissible for the intent of establishing his/her character has been protected and placed on a legal form by 2003 Criminal Justice Act’s section 118(1).45 R v Vye is the primary agent on how to orient judges about the defendant’s proof of good character. The law, before R v Vye, was indecisive in the following areas46: (a) whether a judge is under a duty to direct the jury about evidence of the good character of the accused and (b) if so, whether he should direct them not only that the evidence is relevant to credibility (the first limb of the direction) but also that it has a probative value in relation to the issue of guilt, in that a person of good character is less likely to have committed the offence (the second limb).47 In cases where directions of good character are needed according to R v Vye, it is not obligatory for the jury to employ any specific kind of terms, though they may be sensible to decline stating that the judges are allowed to consider the evidence, which indicates that the judges have an option whether or not to consider the evidence for the intents under consideration.48 Likewise, it is a grave error in direction to say to the judges that they can take into account good character or, that good character may help them on the issue of trustworthiness or credibility.49 The House of Lords, in R v Aziz, has decisively stated that the expression ‘pre-trial answers or statements’ does not denote fully exonerating testimonies, but merely varied testimonies which are presented as proof of the facts they enclose.50 Hence a defendant who does not present proof but depends on fully exonerating testimonies is not given the right to a first limb direction. In addition, R v Aziz stated that a defendant who is given the right to good character directions according to R v Vye will maintain that right by planning an attack on a fellow defendant.51 A direction of good character will be of particular importance in all situations where in it should be provided and for that reason, even though the absence of direction will not automatically make a charge risky, with each case to be evaluated with regards to its own evidence, it will seldom be plausible for an appellate judiciary to state that this absence of direction might not have influenced the result of the proceedings.52 Nevertheless, the defendant’s good character should be specifically used, in cross-examination of the witnesses of the prosecution or by evidence of defence, and it is the obligation of defence counsel to make sure that a direction is given; if the defence failed to bring up the issue, the jury is not mandated to bring it up itself.53 It is definite that character is appropriately categorised as either good or bad. The character of an individual, at common law, comprised his/her repute in his/her community only, even though the law in this case was perhaps not conclusively established until Rowton (1865) Le & Ca 510.54 Reputation involves basically the build up of hearsay evidence about the widely held character of an individual, but not essentially the individual’s true character. It could be rooted in personal and momentary opinions, on gossip and speculation, and could be influenced by any form of bias.55 At present, people perhaps consider gauges of an individual’s real character, in contrast to his/her known character, for instance proof of his/her notorious tendency to act in particular ways, or proof of earlier charges of crimes, as more credible types of character evidence. However, in the course of Rowton, there were undeniable explanations for the clearly prohibitive and antiquated perspective it supported.56 During that period, the defendant remained a weak witness in his/her own behalf. If s/he wanted to prove his/her good character, s/he may do so by using character witnesses. There were hardly any credible accounts of previous behaviour. In contrast, it was a period of restricted social mobility. Individuals were predisposed to reside their entire lives in the same neighbourhood, or at best within a fairly small geographical expanse.57 The collected views of individuals who had been acquainted with the defendant his/her entire life was not an irrational foundation for shaping an opinion regarding character, and the reality that it was a collection of diverse personal opinion at best lessened the possibility of biased and one-sided opinions of the defendant to a certain degree. It could reasonably be thought of as more credible than inaccurately recalled or assumed evidence of earlier incidents in the life of the defendant, and as less prone to be prejudiced than the witness’s personal view, and so, Rowton ruled out these types of evidence in support of reputation evidence as major character evidence.58 Since the jury permitted the defendant to establish proof of his/her character, yet it did not grant the same to the prosecutor apart from disproving evidence established by the defendant any bias resulting from the use of evidence of reputation tended to benefit, rather than impair, the defendant. However, immediately after the resolution of Rowton the statutory setting started to transform to a particular degree that the meaning of ‘character’ was forced to transform with it.59 Better accessibility of more and more credible records and heightened social mobility diminished the clarity or logic of the idea that reputation was the most credible type of evidence of character. The 1898 Criminal Evidence Act transformed the situation at once. The Act rendered, for the first time, the defendant a capable, albeit not compellable, witness in his/her own defence.60 This major development in criminal proceedings required a number of conditions to handle the degree to which a defendant who presented proof may be questioned about his/her character, whether or not s/he confirmed proof of it either by the recently offered chance to give testimony about it him/herself or by using character witnesses. As modified by succeeding statutes, the Act’s s. 1(2) and (3) presented a comprehensive set of laws, the purpose of which was to grant the defendant a partial ‘protection’ against this form of questioning.61 1... (2) A person charged in criminal proceedings who is called as a witness in the proceedings may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to any offence with which he is charged in the proceedings.62 (3) A person charged in criminal proceedings who is called as a witness in the proceedings shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than one with which he is then charged, or is of bad character, unless— (i) the proof that he has committed or been convicted of such other offences is admissible evidence to show that he is guilty of the offence with which he is then charged63; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or the deceased victim of the alleged crime64; or (iii) he has given evidence against any other person charged in the same proceedings.65 The outcome of this condition was that, albeit the defendant may be questioned without restriction to establish his/her guilt of any crime indicted, s/he was provided a protection against questioning about any other criminal actions and about his/her character, and such protection may be removed merely in the provisions laid out in part (3).66 There was a particular level of court disgruntlement about the fact that the definition and scope of evidence of character diverged as between the legislative system which ruled the matter of cross-examination of the defendant in instances where s/he chose to present proof, and the common law perspective, which maintained its power over the notion of character for common intents as well as evidence presented by the defendant to establish his/her character. However, the shift was a reasonable and perhaps crucial one. It is not actually plausible to question a defendant about his/her character exercising merely the medium of reputation. Successful cross-examination requires that the one who conducts the questioning be given the leeway to examine certain acts, as well as earlier charges.67 Similarly, section 99(1) of the 2003 Criminal Justice Act eradicated the rules of common law regarding proof of bad character, and cancelled any disparity between proof of bad character affirmed in questioning of the defendant and proof of bad character affirmed in other means, but the Act holds no relevance to proof of good character, and it is noteworthy that ss. 99(2) and 118(1) sustain reputation evidence as a way of affirming bad character.68 In summary, one individual in one proceeding cannot have the role of both defendant and witness. Likewise, the judiciary cannot conduct different proceedings against several defendants with the intent of cross-examining them as witnesses in proceedings against other offenders. The witness’s role is incompatible with other roles played by one individual in the criminal proceeding and has priority over any other, because witnesses, not like other stakeholders in the trials, are unique. A witness is a normal individual capable of presenting evidence lucidly and speaking to the prosecution. The law does not specify any boundaries on who can take the role of a witness; it only stipulates that it can be any individual who knows his/her civil liberties and is capable of testifying and communing with the court.69 In view of the connection between defendant and witness, the connection of the witness to the criminal act, the way in which the witness gained knowledge of the facts, the witness’s individual character and a string of other components, witnesses can be differentiated into a number of categories. This differentiation is useful for the statutory conditions instituting the duty to present evidence and the outcomes to arise if particular cross-examination procedures are breached, or if an individual has been questioned who should not have been admitted as a witness.70 Conclusions Character witness, as has been discussed, are called to convince the judges that an individual committed an action in harmony with his/her character. Almost all states exercise evidence of reputation as character evidence. For instance, if an individual is known to be honest, the judges may surmise that s/he is presently speaking the truth. This is anecdotal proof, and the judges will make a decision about the relevance of the evidence of character. Embedded in the discussion of character’s definition is the assumption that an individual’s past bad or good character is pertinent to the subject matter of innocence or culpability as regards to the fact that an individual of past good character is believed to be less inclined to perpetrate a certain crime, whereas an individual of past bad character is believed to be more inclined to do so. Word Count: 5, 007 Bibliography Academic Works Acker, J. & Brody, D., Criminal Procedure: A Contemporary Perspective (Jones & Bartlett Learning 2004) Allen, C., Practical Guide to Evidence (Taylor & Francis 2008) Brody, D. & Acker, J., Criminal Law (Jones & Bartlett Learning 2009) Emanuel, S., Criminal Procedure (Aspen Publishers Online 2009) Friedman, J., Friedman’s Practice Series: Evidence (Aspen Publishers Online 2009) Gardner, T. & Anderson, T., Criminal Evidence: Principles and Cases (Cengage Learning 2009) Gibson, B. & Watkins, M., Criminal Justice Act 2003: A Guide to the New Procedures and Sentencing (Waterside Press 2004) Goode, S. & Wellborn, O. III, Courtroom Evidence Handbook (Thomson/West 2008) Hails, J., Criminal Evidence (Cengage Learning 2011) Imwinkelried, E., Evidentiary Foundations (Lexis Nexis 2008) Ingram, J., Criminal Evidence (Elsevier 2011) Jackson, J. & Summers, S., The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (Cambridge University Press 2012) Keane, A., The Modern Law of Evidence (Oxford University Press 2008) Mueller, C. & Kirkpatrick, L., Practice under the Rules (Aspen Publishers Online 1999) Murphy, P., Murphy on Evidence (Oxford University Press 2007) Mowbray, A., Cases and Materials on the European Convention on Human Rights (Oxford University Press 2007) Plucknett, T., A Concise History of the Common Law (The Lawbook Exchange 2001) Pollock, F. & Maitland, F., The History of English Law Before the Time of Edward I (The Lawbook Exchange 2007) Tapper, C., Cross and Tapper on Evidence (Oxford University Press 2007) Cases R v Rowton [1865] 169 E.R. 1497 Legislation European Convention on Human Rights (ECHR) Federal Rules of Evidence (FRE) 2003 Criminal Justice Act 1898 Criminal Evidence Act Read More