Accessing Evidence
1. A) this term privilege would refer to specific types of communication or information about which particular individuals are not compelled to testify. It simply means that certain individuals are privileged from testifying in case they are called upon to do so by judge, jury, tribunal or any other investigating body.
Since colonial times of the common law of the British, two types of testimonial privileges have been in existence in the United States. These comprises of the
i) attorney-client privilege-: this is a privilege which give the client privilege to disclose all the information to his lawyer without fear. It protects legally the communications between clients and their attorneys hence, keeping their communications confidential. This promotes open and honest communication between the two. By so doing, it reduces disobedience to law as well as chances of illegal character which might be intentional or non-intentional. Exceptions to this privilege occur. For instance, if the attorney deems it necessary that the disclosure would prevent adverse impending crime whose outcome may be death or serious bodily injury, the attorney is allowed to execute that. Furthermore, he may do it for self defense from his negligence on certain circumstance.
ii) The spousal privilege:-this is more often referred to as the husband and wife privilege. It consists of two separate parts of privileges: the marital confidences privilege and the spousal testimonial privilege. In the marital confidences privilege, there is protection of confidential communication between a husband and a wife. Within its application, a court does not allow one spouse to testify against the other on matters concerning confidential communication of their marriage. It's application are determined by two facts. First, a third party must not be presnt during te communication and secondly, the communication should have been intended to be confidential by the two parties. This privilege is not extended to parties before marriage and after divorce. Under the spousal testimonial privilege, there is prevention of any party of the defendant's spouse to testify against the defendant about any topic in the criminal case.
Other privileges which are included in the United States are:-
iii) Self-incrimination privilege: - states that no person shall be compelled in any criminal case to be a witness against himself. This is the only one testimonial privilege for unofficial wittiness which is rooted in the federal constitution. According to this privilege, it is against the constitutional rights. In the broad sense, it embraces the concept of the right to silence. Under such a privilege, a person can refuses to answer question or give testimony against him or herself which is subjecting him or her to incrimination. Thus, a citizen has the right not to answer police questions. However, with the exceptions to it, he must disclose certain details and explanations in specific matters like details of names and address to the police, details of suspected goods. The application of this is exemplified by Gibbs versus the commonwealth in1984.
iv) The deliberative process executive privilege:-it may be seen to be a subset of the executive privilege. it is founded on the basis the that particular executive communications are much personal in nature; and therefore, revelation of them to the public perhaps may suppress honest and frank communication in the future time. The simplest form of it is the common sense- common law principle. This means that not all public business can be transacted completely in the open. To achieve this, the public officials are allowed to have private advice of their subordinates far as conferring among themselves freely.
v) the presidential executive privileges:- this is a presidential claim of the right for preserving the confidentiality of communications , recorded information and documents in the face of legal demands. So, this privilege is invoked by the president when request to submit documents, materials and information that display his/her presidential decision making and deliberations that he deems should remain secret. However, their some clear opening and loopholes where the privilege may be contradictory and dilemmatic. For instance, in the case of Nixon versus sirica.
vi) Physician- patient:-its gist of the privilege lies in that a certain level of trust must be there for physician to gather the necessary information which will enable him to properly treat the patient. There are numerous information and communication which are so private and confidential that can be disclosed by a patient to a physician. Testimonies made by patients to the psychiatrists may be detrimental to cases. So such information needs to be protected from disclosure by the constitution. This is used to protect disclosures of the patient that she/he committed a certain crime. This for example may apply where an underage person appears before a doctor with sexually transmitted disease. Probably the patient would be fearful and reluctant to make known the names of her/his older sexual partners fearing charges of statutory rape.
The spousal, attorney-client privilege, the presidential foreign affairs privileges and the privilege against self- incrimination are absolute and thus no one who may testify about covered information. Testifying only occurs when there is privilege waive by the sources of communication. The deliberative process executive privilege and the presidential executive privileges are qualified for reason based on the fact that the specific criteria are qualified as the only way of communication. (Poythress, 1997)
- B) Public policy issues or public interest that justifies the necessity of privileged relationships.
The concealing of entire information source or some of the information without considerations of how relevant of critical it is in a given legal setting as part of testimonial privileges contravenes with the quest for truth. Although it is said that the legislatures have found out that protection of certain information is or is not more important than an unrestrained quest for accurate results in the judicial procedures, the lawmakers have also been so mindful about the relationships of the parties involved. For instance, the long existing privilege of the attorney- client is widely recognized in the public in all states. This was vividly founded on the concept that a lawyer cannot effectively delegate his client not unless he is wholly informed of all the facts. Hence, the lack of the availability of testimonial privilege to foreclose the public disclosure, perhaps the client would be reluctant and unwilling to reveal to his attorney all the relevant information.
Furthermore, the common law privileges were formed to protect the confidentiality of the source of information. The enactment was based on the overwhelming importance of public concern. It was thus unmistakable significance of the spousal privilege which ensures the legal sanctity of married couples. It bestows both married men and women the capacity to act as sources and keeper of confidences during coveture period. This means that they have a privilege of not having to reveal or fear that the other spouse will be forced to disclose that close information to which each may become an enemy to the other. (Alexander, 2002
2. A) Lay witnesses topics: what they have seen or heard, opinion based topic s about common things according to their perceptions e.g. defendant being upset, furry or drunk; the value of their property, accident scenes regarding speeds of vehicles or skid marks. Simply the topics for lay witnesses involve situations relating to the following:-
i) Speed
ii) Height
iii) Distance
iv) -Sobriety
v) Mental capacity and
vi) -The valuation of property
2. B) Issues considered determining the admissibility testimony of a lay witness
i) Condition of person is not admissible unless the witness gives conversations/ incidents/ facts and circumstances good enough to impress the thinking of a person of common experience.
ii) The witness should have better knowledge of the subject's conditions, meaning that his opinion is not a guess, supposition or speculation. Certain circumstances which allow witness to testify on conditions include conditions of person not being able to walk or crippled or even being in great pain and sick. Thus, opinion testimonies by lay witness are admitted when:-
iv) They are rationally based on the perception of the witness;
v) They are helpful to a clear understanding of the witness's testimony or the determination of facts of issues;
vi) They are not based on the scientific, technical or other specialized knowledge.
3. A) Hearsay refers to a statement, other than one made by the declaring while testifying at the trail or hearing offered in evidence to prove the truth of the truth asserted. Such statement must be extra judicial and must be offered to prove the truth of what the statement asserts. Hearsay rule applies using the concept that a jury cannot be informed of a hearsay statement unless it meets certain requirements.
3. B) Exceptions of hearsay rule
i) Absence of declarant: – when the declarant is unavailable for testimony at the hearing or trial, the hearsay rule become void and is not applicable.
ii) Excited utterances-certain event and condition may excite the declarant. Statements that disclose during these conditions and events of stress are of vain to hearsay rule. Such condition or events include accidents or other dangers requiring help, treatment of patients etc.
iii) Prior statements under oath-statements made during an oath which are as the directive of the court order are not used in hearsay rule.
iv) Dying declaration-interrogation of person on their deathbed
v) Admission against interest:-exception to person's statements when generally the statement is so prejudicial to the person making it. Prejudices are sometime treated as hatred, ridicule and also social disgracing the community. The declarant does not need to be a party of the case.
vi)Record recollection-properly prepared business records which are reliable are exception to hearsay rule. But the need some one with knowledge of the records' to lay a foundation. Police records give substantive evidence against the accused, hence, they restricted under the business record exception. Certain generalized police procedures are admissible within this exception but should not include fact about specific case. (Alexander, 2006):
4. A) Factors used to evaluate the competency of a witness
i) Observation
Sight ability is one of the key factors used to give a competency testimony. This means that children and people with mental disability but in possession of visual ability should not be barred from testifying. However, this does not practically guarantee competent testimony from such individual. For instance, it has been found that very young children and people with mental retardation normally do not have the ability to process all kinds of events and objects.
ii) Memory and suggestibility
Judicial and other legal procedures often seem to take long. Some may take a week, month(s) or even year(s). Then the memory of remembrance as is of great concern in terms of competency issues. Besides the ability to remember, the ability to resist opinion and suggestions from other persons is inseparable to accurate testimony. Good memory is required in more complex cognitive processes than mere recognition memory.
iii) Ability to communicate
Like in any other kind of events and place, communication is very crucial in the judicial institutions. Failure of communications together with communication barriers poses great threat to the complaint and plaintiff. On the witness's grounds, the fact that he might be having very high talent on observation and memory, but void of communication ability render his /her testimony futile to the fact finder. In creation cases, the testimony required specific terms which the witness must be well versed with. One may cite the case of child sexual abuse which requires the child to have a comprehension of the meaning of sexual terminologies and behaviour.
iv) Moral development/ ability to distinguish truth and falsity
When a witness is called upon to give testimony, she/she is supposed to do truthfully. Thus, the ability of the witness to relate his /her event experience is of paramount importance. This is why since long time ago, court have always asked witnesses to take an oath before testifying in the courtrooms. Experimentally, children are lesser prone to lies than the adult age group.
4. B) Change of determining factors of competency
I do believe that the above facts do literally change with age. The key to the application of these is entirely based upon the human mental maturity which involves growth and development as well as physical fitness. As well known maturity occurs with growth and development. These two takes time to happens as time elapses which counts for age. However, certain disabilities do which acts as core to impairing ability to competent testimony do not change with time. If sight is taken as permanent disability in the young child, this would not change with the child is at the old age. Similarly dumbness and mental retardation may not reverse with time. (Alexander, 2002)
Reference:
Alexander, J. (2006): Indiana trial evidence manual: LexisNexis
Alexander, J (2002: The Ethics of Evidence: LexisNexis
Poythress, N. (1997): Criminal Investigation, 7th Edition Retrieved from
http://clem.mscd.edu on 15th November 2008
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