The Court Decisions Over the Last 25 Years - Case Study Example

Court decisions THE COURT DECISIONS OVER THE LAST 25 YEARS OR SO REVEAL A REMARKABLY CONFUSING APPROACH TO THE PURPOSE OF CROSS EXAMINATION UNDER S1 (f) (ii) CRIMINAL EVIDENCE ACT 1898 Cross examination is defined as “the examination by the adverse party of a witness at the conclusion of the direct examination of such witness”.1 Its purposes are to test the witness’ accuracy and truthfulness and freedom from bias and interest as well as to elicit from him all such important facts bearing upon the issues of a particular case. 2A look at court decisions over the last 25 years will bear out the truth behind the statement of the title of this paper. The court decisions on cases that involve crimes against property and some crimes against the national interest are easy to fathom and understand but lately, especially the last two decades, court decisions that require adjudication of cases in which the good or the bad moral character of the defendant is relevant to the resolution of the facts in issue, had been murky and muddled that students of law are often left befuddled. This is to be expected as the allowance of evidence of the bad or good moral character of the accused is fully in the discretion of the judges.3 Some jurors disallow hearing of evidence of the character of the accused on the pretext that it is irrelevant to the case. According to Elliott, “evidence is relevant when it has a tendency in reason to establish the probability or improbability of a fact in issue”4 Relevancy or the materiality to the issue of fact raised in the pleadings is extremely important because if evidence is relevant as well as competent, then that evidence is admissible. What is then relevant and thus Court decisions 2 admissible is therefore, dependent on the juror’s discretion. All that the court has to say after it refuses admittance of evidence is that it does so “in the interest of justice by virtue of Criminal Justice Act 1988 section 25(1).5 Wigmore’s Axiom of Admissibility which is supposed to facilitate the judges’ exercise of their discretion to allow or disallow admission of evidence as to the good or bad character of the accused merely confuse the judges and everybody else. According to Wigmore, what can be admitted are only facts with rational probative value unless some specific rule clearly forbids its admission. Again the term ‘rational probative value’ is dependent on the interpretation of each judge. The Alfred Altmore Pope Foundation case tersely expresses this dilemma: No precise and universal test of relevancy is furnished by the law but the determination of whether particular evidence is relevant rests largely on the discretion of the court, which must be exercised according to the teachings of logic and everyday experience .6 Because of this discretion, court decisions have become confusing as each discretion reflects the juror’s discretion and personal approach to the purpose of cross examination. Presuming that the defendant’s good or bad moral character is relevant to the facts in issue and thus admissible, the prosecutor still will have to face the gargantuan task of successfully eliciting answers from him. First block is the constitution’s privilege against self-incrimination which provides that “no person shall be compelled to be a witness against himself”.7 Any person under investigation for the commission of an offence shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any Court decisions 3 confession obtained in violation of this section shall be inadmissible in evidence” (Constitution). This provision of the Constitution finds expression in Sec. 1f of the Criminal Evidence Act 1898 which states that “ a person charged in criminal proceeding 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 the one with which he is then charged, or is of bad character”. The reason for the self-incrimination provision of the Constitution is to deter the inhuman practice of compelling the prisoner to furnish the evidence for his conviction and to deter extortion of unwilling confessions which will directly link him to the commission of the crime.8 As to sec1f of the Criminal Evidence Act, the purpose is to shield him from involuntary committing the crime of perjury and if he is so forced to answer, this would be tantamount to extortion of confession by duress .9 The second block to eliciting answers from the defendant as to his good or bad moral character is the rule in evidence itself which states that character evidence is not generally admissible. This rule is not only frustrating for the prosecutor and the plaintiff but also to the judge as well who naturally wants to get to the bottom of it all. Because there are exceptions to the rule, some judges give the go-signal for admissibility of evidence for good or bad moral character when any of the tiniest tinge of appearance of any exception comes to the fore. Other judges are strict and only do so when the exception has become totally clear and incontrovertible. Court Decisions 4 And here lies the confusion of court decisions. As judges vary in their treatment and adjudication of these exceptions, the more the court decisions become frustratingly confusing and the more court decisions diverge when it comes to approaching the purposes of cross examinations. The defendant may be called upon as a witness in the proceedings. And as such, his good reputation and the veracity of his statements may only be admitted if such good reputation and veracity are assailed or impeached. And only then can testimony sustaining his good character Be admitted as evidence. Without the attack on his character, he cannot be allowed to prove that he possesses good character, which is material in certain cases such as oral defamation, theft, robbery, acts of lasciviousness, malicious mischief, seduction, grave threats and coercions, serious physical injuries and even murder. At the outset, the prosecution will have difficulty in immediately proving the bad moral character of the accused especially when such is very pertinent to successfully impute him in the offence charged. He can only do so, when the accused, in his defence, tries to prove his good moral character. Only then can the prosecution introduce evidence of such bad moral character. Without it, the prosecution is totally helpless with the possibility that his case against the accused might be stunted and weakened. “Where the accused calls evidence as to his character….. he puts his whole character in issue”.10 The prosecutor calling the accused as a witness, furthermore, is not allowed to assail his credit by asserting that he is of bad moral character. This is the tenor of Sec1f of the Criminal Evidence Act 1898. The prosecutor’s alternative is to contradict him by other evidence and to show that the witness-defendant has tricked him into calling him to the stand. The prosecutor Court Decisions 5 may also assail his veracity by claiming inconsistencies of his statements vis-à-vis statements given in other proceedings. Sec 1f (ii) of the Criminal Evidence Act shows that the defence may assail the bad moral character of the offended party, even if he or she is already dead, the litigant himself or the witnesses of the prosecution. This is allowed by the rules of court as long as the evidence of bad moral character tends to establish the probability or improbability of the offence charged. When the accused or his lawyer does this, he is now open to the possibility of his bad moral character being questioned in court and be deemed admissible whenever, he is called upon as a witness.11 But we have to stress that only the defendant’s bad moral character can be proved. The accused cannot proffer evidence of his good character in his defence, unless such has been impeached by the other party. If this confusing enough, then we should expect confusion in court decisions because the rules in this matter are already confusing. Still, however, a “trial judge has discretion to refuse to permit such cross examination even though it is permissible under proviso f(ii)”.12 The reason why the prosecution is not allowed at the outset to assail the character of the accused and may only do so upon the assertion of the accused that he is of good moral character is to avoid unfair prejudice to the defendant who could be convicted by reason of the fact that he is a person of bad character and not because he is guilty of the charge imputed against him. If the prosecution is not allowed at the outset to prove the bad character of the accused, the accused may at any time, prove his good moral character. The only requisite is that this good moral character must have a direct connection to the moral trait involved in the offence charged. Court Decisions 6 The rationale behind it, is the relevancy of the defendant’s in cases wherein his good character may evidence the improbability of his doing the act charged. Examples of such cases are perjury, false testimony and estafa where the person’s moral trait for honesty or probity is involved. 13 Because proof of the defendant’s good character may be the key to resolving the issue of whether he is guilty of the crime charged, his good character must be proved as it affords presumption against the commission of the crime. This presumption is rooted from the improbability that ‘a person may not be guilty of such crime when he has relentlessly and consistently “pursued an honest and upright course of conduct that it is very unlikely that he will depart from it and do an act so inconsistent with it”.14 As stated in section 1f(ii) of the Criminal Evidence Act, the accused may also establish his own good character by eliciting such from the witnesses of the prosecution. 15 However, any attempt to do so, whether successful or unsuccessful, will make him open to attack of his own bad moral character. The admissibility of such attack, is also discretionary upon the court. Some jurors open the possibility of such attack at the least attempt to elicit his own good character from such witnesses. Other jurors wait for a successful elicitation before making admissible attack on his own bad character. The result is a mishmash of court decisions that take opposing approaches to the purpose of cross examination. Some decisions are favorable to the accused while others are unfavorable to him, because of this discretion in admissibility of evidence as to his bad moral character. The total effect is that many of these decisions run contrary to the purpose of cross examination which is to elicit from all the witnesses, including Court Decisions 7 the accused called upon as a witness, all important facts bearing upon the issues of a particular case. To illustrate how a juror’s decision to strike out admission of the good moral character of the accused may change the outcome of court decision, we take into consideration a case of theft. If a judge allows testimonies that accused had repeatedly returned money that he accidentally found including money worth millions, chances are the case against him be considerably weakened. But if such judge disallows such testimonies, the accused most likely will face a grim decision. In the Gutler case, “in a prosecution for larceny, the evidence of character should be confined to defendant’s reputation for honesty and integrity “ .16 These two situations comprise confusion in court decisions. It should be stressed that testimony of good character of accused does not always insure positive outcomes because the outcome depends upon the nature and circumstances of the crime charged and upon the probative force of the proof presented as to the guilt of the accused. If accused is charged with a crime that presumes cool deliberation on the part of the accused and such relates to the actions of daily life, evidence of good character is strong. But when the crime is out of the ordinary that must have been induced by motives not usually on the mind of the accused, evidence of good character is weak.17 If it is clear through solid evidence that accused committed the crime, then evidence of good character will not prevail. An acquittal cannot be hoped to be obtained by accused despite his previous good moral character and exemplary conduct. “When a court believes that an accused is guilty beyond reasonable doubt of the crime Court Decisions 8 charged, it must convict him notwithstanding evidence of his good character and previous exemplary conduct”. So many errors of lower courts stem from the fact that, these courts allow the prosecution to present witnesses to testify as to the bad character and reputation of the accused. This is grossly erroneous when the defence had not put to issue his character. Sec. 1f (ii) of Criminal Evidence Act 1898 rules that the prosecution is not permitted to touch upon the character of the accused in the original case and only after the accused “has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character”. Such attempt to show his good reputation as well as the calling of witnesses and the adducing of evidence to support it is the hint for the prosecution to disprove it by showing to the court how bad his character and reputation is. By also attacking the character of the prosecutor or the witnesses for the prosecution or the deceased victim of the alleged crime “ (Sec. 1f (ii) Criminal Evidence Act 1898), then that will be the time allowed by the court for the prosecution to adduce evidence of his bad character. The reason for this is that if the prosecution is allowed to do that in the first instance, the accused would be a goner right from the start and he “might be overwhelmed by prejudice and emotion, instead of being convicted by that affirmative evidence which the law requires .18 Determination of relevancy and thus admissibility of the good or bad character of the accused at the cross examination level and the highly discretionary nature of such determination is not only the cause for the confusing approach to the purpose of cross examinations but also the “mode of proving character assuming it to be properly probable either as an evidentiary fact or an issue” .19 According to Wigmore, there are 3 ways of proving character. The first, is “personal opinion as to the moral character of an accused party”. The second is specific conduct of the party exhibiting character”. Both the first and the second are inadmissible in evidence because both involve undue prejudice. The third one however, which is reputation in the community is admissible. This basis of reputation, though, is a source of conflict which produces conflicting court decisions. And the crux of the conflict is whether reputation or character can be based solely on the testimony of witnesses testifying in the case. Some jurors are of the opinion that reputation is tantamount to the esteem in which the accused is held by the witnesses. But others take a different stand. According to them, “the character of a person is what he really is, rather than what he is reputed to be, hence that the accused should not be confined to his reputation for a certain trait involved in the charge .20 In the case of Morewood v Wood where evidence of reputation was offered, the Judges of the Court of King’s Bench were equally divided on its admissibility.21 Sec. 1f of the Criminal Evidence Act talks about acts committed by the accused in the past or past conviction or past offence by which accused was charged in court. These constitute conduct as evidence. The rule on this is that these are not admissible “but the court may hear it to prove a specific knowledge or intent, a scheme, habit, custom, or system “22 The rationale behind this rule is that whatever the accused did in the past that is similar to the one of which he is now charged with is no guarantee that he committed this present crime. “This is so, because, subjectively a man’s mind and even his modes of life may change; and, objectively, the conditions under which he may find himself at a given time may likewise change and thus induce him to act in a different way. Besides, if evidence of similar acts are to be invariably admitted, they will give rise to a multiplicity of collateral issues and will subject the defendant to surprise Court decisions 9 as well as confuse the court and prolong the trial. 23The rule rejecting the idea that if the accused has committed a crime at a particular time, he must have committed a similar crime at another time is called res inter alios acta .24The fact that it is inadmissible but the court has given the prerogative to hear these past crimes or past conviction is a potential source of conflict and confusion and may produce conflicting court decisions that run contrary to the aim of a cross examination. REFERENCES Alfred Altmore Pope Foundation v New York, 138A. 444, 106 Conn. 432. Best, M.W. 1854, A treatise on the principles of evidence and practice as to proofs in court, Hodges and Smith. Canceni v People 16 N.Y. 501. Chamberlayne, C.F. 1898, Trial evidence :Handbook on evidence, Yale Law Journal Co.,Inc. Elliott, R. 1892, Elliott on Evidence, Yale Law Journal Co., Inc. Fisher v Ronalds, 22 L.J. 63, C.P. Greenleaf, S. 1842, A treatise on the law of evidence, Yale Law Journal Co., Inc. Gutler v State Law Essays UK, Law of evidence, uk.www.law.essays.uk.com/evidence.php.21k. Maffei, S. 2006, The European right to confrontation and criminal proceedings, Europa Law Publishing. Mitchell v Williams, 11 M. & W.. 217. Morewood v Wood, Powell, E. 1856, The practice of the law of evidence. R v Rowton, Leigh & Co. (1855) 520;540. R v Winfield (1939) 4 All E.R. 164. Selvey v Director of Public Prosecutions, (1968) 2 All E.R. 497, H.L. Underhill, H.C. 1894, Underhill on Evidence, The Yale Law Journal Company, Inc. Wigmore , J.H. 1904, Wigmore on Evidence, Yale Law Journal Co. Inc. Read More