The Law of Evidence - Essay Example

The Law of Evidence The law of evidence does not stop with the guarantee of the truthfulness of the evidence. They also require that the non-expert witnesses testify according to their personal knowledge and in what they call "language of perception." Witnesses must testify in a highly conventional style, quite difficult to master, often enforced by the judge's orders, "Just tell us what you saw" or "Just tell us what you did." The court is not interested in the witness's interpretations of what occurred, or his opinions of states of affairs he could not perceive through one of his five senses (McKay and Colman, 1991). That would, of course, "usurp the province of the jury" and threaten the Rule of Law by resolving the dispute according to criteria other than those embedded in the instructions. This basic requirement, more a first principle than a rule of evidence, is of much deeper significance than any of the specific exclusionary rules that are usually thought to constitute evidence law. Within the Received View, the importance of testimony in the language of perception runs even deeper. Our daily conversations and descriptions of events are suffused with opinion, interpretation, and evaluation. Often we are allowed only to agree with the leading questions of our conversation partners, questions themselves suffused with assumptions, opinions, interpretations, and evaluation (Pattenden, 1986). Such conversations are about matters of interest but are, much more, occasions by which the speakers constitute and reform their relationship, an enterprise often well served by the sharing of opinions and judgments. The factual accuracy of the accounts is usually of less significance than self-revelation and invitations to reciprocity. By contrast, testimony in response to non-leading questions in the language of perception provides the jury exactly what it needs to decide the case according to the norms embedded in the instructions: an artificially stripped-down, value-free account of the witness's perceptions (Allen, 2005). These perceptions are a kind of "prime matter," as Aristotle put it, utterly plastic to both the jury's empirical generalizations and, more important, to the legal norms embedded in the instructions. Testimony in the language of perception reduces the likelihood that the jury will simply adopt the moral or political judgments smuggled into the "descriptions" by an authoritative or sympathetic witness. It is often suggested that the vigour with which the rule against hearsay is still applied in criminal cases is attributable to the phenomenon of trial by jury in criminal trials on indictment. Juries, it is said, cannot be expected to assess properly the reliability of hearsay evidence on a case-by-case basis, and thus it is preferable that a blanket ban on such evidence be maintained. Concern about the ability of juries to handle hearsay evidence was particularly prevalent in the 19th century, but its influence on current hearsay doctrine is still evident. 'It is probably no accident', Tapper has pointed out, 'that the hearsay rule is the same in both civil and criminal proceedings where the mode of trial is the same, whether in both cases by judge and jury as in the United States, or by judge alone as in South Africa; but different in England and Scotland, where the form of trial is quite different in civil and criminal proceedings.' Further, in Continental jurisdictions, where very little reliance is placed on jury trial, there is no rule against hearsay of the sophisticated variety that exists in England. In Germany, for example, there is no formal ban on oral hearsay (although, in practice, such evidence is usually adduced only if the maker of the statement is unavailable, or to supplement her or his testimony and written hearsay is, subject to minor exceptions, freely admissible. France, like Germany, does not have a formal hearsay rule. The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the analogous Confrontation Clause to follow the lead of evidence law. There have always been dozens of defined exceptions to the hearsay rule. Many jurisdictions also now have "catch-all" exceptions for hearsay that simply seems "reliable." Recall too that out-of-court statements are inadmissible only if offered for the truth of the matter asserted. This raises what we now know to be issues of multiple relevancies. Outof-court statements can be offered for purposes other than the truth of what was asserted, and, once admitted, are usually considered for all purposes. The deferential principles of relevancy law that allow those other purposes to be logically quite weak and the ability of advocates to tailor actual theories in order to render desirable evidence logically relevant together reduce the actual bite of the hearsay rule. The best evidence rule, the requirement of authentication, most of the law of competence, and the hearsay rule all serve to ensure that evidence upon which a juror may decide a case is reliable. At a level below the rhetoric of judicial opinions, reliability is really a form of relevance. Evidence that is utterly unreliable is really irrelevant: it really does not render a fact that is of consequence to the litigation any more or less probable than it would be without the evidence. The Received View suggests that all these rules contribute to the factual accuracy of the value-free narrative on which the juror must then perform the task of legal categorization. Indeed, they can be understood quite well, almost exhaustively, from the perspective of the Received View. On the other hand, there are severe problems with this open system of free proof: in fact, the very problems that the Received View understands the law of evidence to address. The evidence that a competent, interested advocate may present may be the most powerful evidence, but its persuasive power may stem from its invoking political or moral norms other than those embedded in the instructions. This power may derive from passion or emotion. The Rule of Law requires the trial judge to aggressively patrol the evidence for materiality, and the jury must be kept from basing its decisions on evidence that is unreliable. There are situations where the devices of the adversary trial are inadequate to assess properly the reliability of evidence. Obtaining contradictory evidence in the short time frames of the trial may not be possible. Better to exclude this sort of evidence completely through the use of our familiar exclusionary rules of evidence. To this call for the development of a comprehensive scheme of evidence law articulated through the common law method, the next stage of our dialectic brings a powerful objection. Evidence law addresses every possible event that could find its way into a criminal or civil courtroom from the booming, buzzing confusion of the world. Further, the law of evidence has to be sufficiently simple for advocates and judges to retrieve and apply in the second or so within which most evidentiary decisions take place in the trial courtroom. An enormously complex and refined set of "hard law" rules and exceptions, and exceptions to exceptions, necessarily enforced by reversal, seem unworkable even with the most perspicuous categories and the wisest judges. The Materiality of Truth Logical relevance focuses on the link between the evidence offered and the proposition the proponent of the evidence seeks to prove (Cross and Tapper, 2004). Evidence is logically relevant if that link is supported by "experience or science," or, somewhat more technically, if that link, which constitutes the "probative value" of the evidence presented, is secured by a "major premise" that exists in the common sense (the "web of belief") and which a reasonable jury could conclude was applicable to the evidence submitted. For example, if the proponent wants to submit evidence that the defendant had consumed five beers within a half hour of a shooting of which he is accused, he or she will invoke the commonsense generalization, "Generally and for the most part, people who consume large amounts of alcohol will be less inhibited for a period of time after drinking." It is materiality, however, which the Received View emphasizes as the key to assuring that the trial renders operational the Rule of Law. A lawyer will be permitted to present evidence before the jury only if the proposition he or she seeks to prove is one that is germane to the case under the applicable law (Munday, 2005). For example, under the traditional law of "independent covenants" applicable to an eviction action for nonpayment of rent, a landlord's failure to maintain the premises up to code will not excuse the tenant's nonpayment of rent; thus the tenant will not be permitted to introduce evidence of the deplorable condition of his apartment. To do so would tempt the jury to decide the case based on moral or political norms other than those embedded in the instructions and will thus endanger the Rule of Law. Even in cases where the proponent of the evidence can demonstrate its materiality by pointing to an element of a claim or defense specified by the legal rules, the judge may still exclude the evidence if this legitimate value of the evidence is "substantially outweighed" by the threat of the jury's considering the evidence under a norm other than that contained in the instruction. Thus the version even of the factual truth that the jury sees will surely not be the "whole" truth: it might be called the "legal truth" or, to beg most of the important questions for the moment, a "political truth." The law of evidence contains the most obvious set of rules that make the contemporary trial what it is. More easily overlooked, especially by scholars whose principal interest is the extent to which the law of evidence promotes or hinders accuracy in fact-finding, is the pervasive effect of the law of professional responsibility on the trial. Just as surely as the law of evidence, legal ethics, both as a set of precise disciplinary rules and as an expression of the ethos of the practicing bar, forms a decisive part of the constitutive rules of the trial. Someone who is interested in answering the question "What is a trial" cannot leave them out of account (McKay and Colman, 1991). The prohibitions on a lawyer's making a false statement, however undetectable, or presenting false evidence, however effective, are examples of the way in which the constitutive rules of the trial incorporate the lawyer's "natural" or full knowledge of events. They are, in a sense, limitations on the trial's artifice. By contrast, other constitutive rules require that a lawyer put aside his own full knowledge and judgment and defer to the trial's artifice. By prohibiting a lawyer from alluding during trial to "any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence," the rules enjoin, as a matter of ethical obligation, deference to all of the policies embedded in the law of evidence (Pattenden, 1986). An attorney may neither assert a personal knowledge of the facts, except under those very rare occasions on which a trial attorney may testify, nor state her personal opinion as to "the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused." It is only what can be proven subject to the public rules of the trial that affects the outcome. The Law of Evidence The law of Evidence describes the Received View's as the contribution of the Rule of Law. Evidence law is, after all, a vast body of doctrine that has developed over centuries, and, despite recent simplification and rationalization, it still bears many vestigial organs from that evolution (Allen, 2005). Here, an ounce of history truly is worth a pound of logic. Although all of evidence law cannot easily be understood as emerging deductively from one or two generative principles, its broad purposes have a unity. The law of evidence provides the "grammar" of the trial. Only those truths that can be said "grammatically" can become part of the legal world. A very important part of the significance of that grammar is incorporated in the Received View's understanding of evidence law, but other important aspects are omitted. Recall the perspective of the Received View. The requirement that a witness testify in the language of perception lies close to the heart of the law of evidence. A witness's testimony, with narrow exceptions, must be the report, under oath, of an event that the witness once saw, touched, tasted, felt, or heard and now remembers. Only thus, the Received View states that the norms embedded in the instructions, and not the moral and political beliefs of the witness, will be used to decide the case. There are deep reasons why most evidence has "multiple relevance," some legitimate and some illegitimate. The illegitimate inferences may invoke substantive moral or political norms outside the instructions for the ultimate decision of the case, or may involve lines of reasoning from a party's "character" for example, or from a hearsay statement that the law of evidence determines insufficiently reliable on which to base a purely factual determination that must be made if the trial of fact is following the norms in the instructions. Recall that evidence may be excluded only if its probative value is substantially outweighed by the dangers of unfair prejudice, such as that from an "illegitimate inference," and one can understand the inevitability of evidence whose significance can overwhelm the substantive legal norms by invoking alternative values (Munday, 2005). Psychiatric Evidence The manner in which the psychiatric evidence was received and commented on in the press during the trial revealed very clearly the ambivalence of society towards the intervention of psychiatry in matters of criminal behavior (Pattenden, 1986). This ambivalence is, of course, compounded by the fact that our adversarial system of justice does not lend itself readily to the discussion or deliberation of complex and finely drawn issues of intent and motivation. Psychiatrists, in their day-to-day practice, are accustomed to dealing with grey areas of motivation and far less with the black and white issues of fact demanded by the constraints of the justice system. Some people have suggested that the psychiatrists were "wrong-footed" in court; they were certainly subjected to a good deal of criticism, if not ridicule. On going over the various press accounts of the case, this appears to have been quite ill founded, given the constraints already referred to and the fact that journalistic accounts are inevitably highly selective. Where the court is asked to establish matters that are so far eliminated from the court's incident, expert opinion on those matters is permissible. The fields in which expert evidence is allowable will generally be those in medical industry like a pathologist's judgment as to the cause of death, or in the field of science, as the explanation of the collected information employing a sound level meter with a rate of recurrence analysis etc. On the other hand, there is repeatedly a fine line between those matters that do call for expert's opinion (Pattenden, 1986). The court used the law of psychiatric evidence in the case of R v Turner. In this case, the psychiatric evidence is exclusively complexities in that the courts have chosen that this law often pacts with issues of human nature and behavior inside the perimeters of the norms, which the court can verify itself without expert psychiatric evidence. Conclusion From the above mentioned definitions and terms, it imperative that as a reasonable and intellectual being, an engineer is presumed to know the intricacies and technicalities of the law. Under the cardinal principle that ignorance of the law excuses no one, every person is presumed to know the law. Therefore, you cannot free yourself from liability for the simple reason that you are not aware of the law. Laws before they take effect are publicized in order to notify the whole world. Thus, as person of right mind, you are presumed to have been notified and therefore you cannot excuse yourself from the binding effect of law for the reason that you don't know the law. Hence, as an engineer, you are bound to know the law because you are presumed to have been notified by the said law. Even if your knowledge of law is medial, you are presumed to have understood it, therefore, when you violate a law, you cannot use your ignorance of the law as defense to free you from liability. The law maybe harsh but the law is the law! If there is one general theme that emerges from the diverse issues examined, it is that the strict application of the hearsay rule is, potentially, much more far-reaching than is commonly realized. In order, however, to reach particular results considered to be desirable, courts have resorted on occasion to what one commentator terms 'hearsay-fiddles'. These involve, inter alia, the deliberate turning of a blind judicial eye to hearsay issues where considerations of necessity and convenience suggest that a piece of cogent, but technically hearsay, evidence should be left to the jury. 'Hearsay-fiddles' have been resorted to, for example, in cases involving evidence of the identification of persons. Decisions such as McLean demonstrate, however, that in analogous cases not involving the identification of persons, the hearsay rule has been applied with full vigor. Mechanisms such as the 'unsafe and unsatisfactory' test may also be utilized to ameliorate the harshness of a strict application of the hearsay rule. We have seen that the exclusion of evidence of a third-party confession may in certain circumstances be held to render a conviction unsafe and unsatisfactory. However, here again, an inconsistency arises from the fact that the use of the 'unsafe and unsatisfactory' mechanism has apparently been confined to evidence of third-party confessions, and has not been extended more generally to exculpatory hearsay evidence sought to be adduced by the defense. Even if they were employed more generally and consistently, devices such as 'hearsay-fiddles' and the 'unsafe and unsatisfactory' mechanism do not represent a satisfactory solution. The use of 'hearsay-fiddles', for example, gives the law an air of hypocrisy, while the device of declaring a conviction unsafe and unsatisfactory at the appeal stage is inadequate compensation for the failure of the law to develop proper principles for application at the trial stage. What is clearly preferable is an approach which requires trial judges to determine admissibility by reference to whether the four 'hearsay dangers' are, in the context of the particular case, sufficiently low to render the evidence reliable enough for the jury's consideration. References Allen, Christopher. (2005) Practical Guide to Evidence, 3rd Ed. Cavendish Publishing Limited. Cross and Tapper. (2004) Evidence, 10th Ed. LexisNexis Butterworths. McKay and Colman. (1991) Excluding Expert Evidence: A Tale of Ordinary Folk and Ordinary Experience. Crim LR 800. Munday, Roderick. (2005) Evidence, 3rd Ed. Oxford University Press. Pattenden, Rosemary. (1986) Conflicting Approaches to Psychiatric Evidence in Criminal Trials: England, Canada and Australia. Crim LR 92. Read More