Introduction
Cases of sexual assault entail special evidentiary issues. They reveal a great conflict in scenario where ethics, law and evidence intersect.[1] Given the many numerous evidentiary rape questions, including character evidence, issues of relevance, privilege, cross examination of witnesses, psychological expert testimony, scientific evidence, a typical trial of rape could serve as a primer for evidence. This essay will advise on the evidential issues arising in a case study of Valerie and Donald. Donald is charged with sexually assaulting Valerie, a fellow parent after offering her when both of them dropped off their kids at school. Available evidence point out that Donald in deed raped her. He was in possession of a home address note scribbled by Valerie. Furthermore, hearsay of Mrs Extra, Valerie’s cleaner indicate that that particular day Valerie was scared and shaken. Dr Carr’s medical report also point out that in deed Valerie had tearing and bruising at her vaginal area, which to his opinion was through a violent non-consensual sex. Additionally, further evidence are shown by the Crown Prosecution Service from the received telephone service received by Elizabeth, Donald’s wife about rape. Lastly, Donald also tried raping PC Gently, a police woman pretending to be a parent. Furthermore, it will critically analyse one of the evidential issues arising from the case scenario; hearsay: plaintiff’s sexual history evidence
The law of evidence in United Kingdom govern whether, how, when, proof and for what purpose a legal case may be for consideration before a trier of fact. For it to prevail in court, it requires in the given venue an in depth understanding of the rules of evidence. The rules of evidence vary depending on whether the venue is a civil court, family court, or criminal court and they vary by the jurisdiction. Some of the important rules of evidence involve privilege, relevance, opinions, witnesses, hearsay, Testimony, Identification, authenticity and physical evidence rules.
Brandon[2] indicated that the evidence rules were developed over many centuries and their purpose is to create fairness to both parties, and to disallow raising of allegations without provable fact basis. Perhaps the most significant rules of evidence is the hearsay testimony which is inadmissible. However, in United Kingdom, it is an exception since section 1 of Civil Evidence Act 1995[3] allows specifically for admission of hearsay evidence. Moreover, the legislation also permits hearsay evidence to be applied in the criminal proceedings. Brandon[4] asserted that this makes it impossible for the accuser or the plaintiff to induce family or friends to produce false evidence to support their accusations since in normal circumstance, the evidence would be rejected in the court by the judge or presiding authority.
(a) Advise on the evidential issues arising
The arising evidential issues which are also some of the key concept affecting the use of evidence at a criminal or civic matters trial include the following:
Police and Criminal Evidence Act 1984
PACE aims is to establish a balance between the rights and freedoms of the public and the police powers in wales and England. According to Zander,[5] PACE majorly deals with powers of the police in searching premises and the individuals, including their entry powers to the premises and also in handling of the exhibits they seize during the searches, and suspects treatments once they are in police custody and during interview. Zander[6] asserted that if the particular terms of the Act is not conformed to, criminal liability may arise. Moreover failure to conform to the practice codes while arresting, searching, interviewing or detaining a suspect may lead to inadmissibility of the evidence obtained during the process. Take an example of a case in between Saunders v. United kingdom,[7] the trial judge, Justice Henry, held that the presented transcripts were admissible in the courts stating that the interviews were possible being the confessions as defined in the PACE section 82 (1). The police officers in the case of Valerie verses Donald searched Donald’s desk without search warrant. This was a violation of PACE section 82 (1). Therefore, the evidence presented in the court can be dismissed if the defendants has a reasonable ground or proof to present to the court that the police officers violated PACE hence the evidence inadmissible. This poses as a major evidential issue in the case and may hinder the proceedings of the case.
Relevance and courts control
This is the most basic rule of evidence in that when a party introduces an item in court as an evidence during trial, it must very relevant to the issue or matter before the court. In scenarios where it is obvious the item is not relevant, the arty introducing the item must explain its relevance.[8] Moreover, the court has got control over the evidence flow in a case. The court can request the parties to present evidence related to particular issue, and also limit the evidence use in addition to the extent of cross examination.[9] In the case of Valerie verses Donald, the prosecution introduced several relevant evidences in the court. The sexual assault case has numerous evidences range from medical reports from Valerie’s surgeon, written home address note by Valerie found in Donald’s desk. On the other hand, Donald has allegations of prior sexual relation with Valerie and that Valerie has had numerous sexual affairs with different fathers in the school. Therefore, it is upon the court to control the floe the flow of the evidences from both parties.
Witness competencies
The witnesses are the ways by which the parties in a case during trial introduces evidence. Generally, the court rules require that a party prepare statements of the witnesses for the witnesses it plans to call during the trial. Sherrin and Philip[10] asserted that when the witnesses appears at the trial, his or her statement is limited to what is in the witness statement. Moreover, the other party also has a right of cross examining the witness, and the party which is calling the witness also has the right of further questioning his witnesses about any issue that was raised during the cross examination
The statement of the witness can have exhibits such as photographs or documents, physical evidence or other model. Generally, a witness’ opinion evidence is not admissible in court since they are only to produce factual evidence. However, a witness may relate facts that are relevant as he perceived them.
The witnesses in the case between Valerie verses Donald include Valerie herself, Mrs Extra, Dr Carr, Elizabeth, PC Skulls, PC Hollis and PC Gently. There statements should be in line with what appears on the witness statements. Moreover, the witnesses in the case will have supporting exhibits for the case such as the scribbled home address note found in Donald’s desk, the medical report of the bad tearing and bruising of Valerie’s vaginal area which to Dr Carr’s opinion could have been caused by violent non-consensual sexual intercourse. However, the evidential issue among the witnesses is that their opinion evidences are not admissible in the court unless they are factual and special application has been made in the court to use the witnesses.
Expert witnesses
For the expert witnesses, the rule of “no opinion” is an exception since they are permitted to produce opinion evidence to the matter relevant in which they are qualified to produce as expert evidence. The reason why the experts are allowed to present evidences is because the expert witnesses has a duty of assisting in courts, and this overrides any obligation they might be having to the party who instructed them. In some cases, in fact, the court will need the parties in a case to instruct a joint, single expert to opine on specific matters that are relevant to the case.[11]
The only exert witness is Dr Carr who will be allowed to give his opinion to the relevant matter before the court since he is qualified to give his expert evidence. According to Dr Carr, who examined Valerie and found bad tearing and bruising of the vaginal area, his opinion was that it could only have been caused by violent non-consensual sexual intercourse. He also said that he believes the level of distress manifested by Valerie is consistent with her being the victim of rape.
Hearsay in the criminal cases
The general rule in the criminal cases is that hearsay evidence is not admissible.[12] However, just like in the civil cases, there exists procedures where a party can provide the other party its intent notice of using the evidence in which if granted such notice, the other party has a right of objecting its use by applying for decision to the court as to whether the evidence is not admissible. In case of Al-Khawaja and Tahery v United Kingdom[13] the trial judges convicted both defendants on single hearsay piece. In the first applicant, the consultant physician was charged in court with two counts of assaulting two female patients indecently. One of the complainants before her death during trial time, had made a statement with the police of being assaulted. The preliminary hearing found her statement as admissible evidence hence the applicant was convicted. On the other hand, in the case of R v. Horncastle and others,[14] a judicial committee of seven members dismissed the appeals and unanimously affirmed the court of appeal decisions. The panel was to consider the admissibility of hearsay evidence, on an appeal by defendants against a five judge court of appeal decision. The defendants were convicted based on absent witness statements. Similarly, in the case of Wright v Doe d. Tatham, Tatham[15] was the heir and claimant of the fortune of the deceased. However, in the will, there was a devised portion to a former servant, Wright. The main issue before the House of the lords was whether the deceased, when he wrote the will, had the testamentary capacity. Among the evidence was three written letters to the testator which the author had a belief that the mind of the testator was sound and their admissibility as evidence or they were hearsay. The house of the lords in their ruling held that the letters evidence were inadmissible as hearsay since they implied “Marsden was of sound mind.”[16] In the case scenario, hearsay is also evident from the statement of the Mrs Extra, a cleaner of Valerie. Hearsay is an evidential issue that is evident in the case of Valerie verses Donald. First, the testimony of Mrs Extra, Valerie’s cleaner who will not give evidence is inadmissible in court, because she is a patient in a hospice for the terminally ill makes it a hearsay. Mrs Extra said that when she Valerie that particular day, he response was ‘Leave me alone! I’ve been through hell!’ after which she refused to say more. The statement was not presented in court hence it is a hearsay.
Character evidence in the criminal cases
The rule on the admissible evidence in the criminal cases to prove the bad character of the defendant are different from the applicable rules to other witnesses. According to Safferling, Johannes and Lars,[17] bad character evidence is defined as a disposition toward or evidence of misconduct. That is, other than the evidence having to do with the prosecuted crime in the conduct of the case or in the case. UK, FindLaw[18] asserted that there are multiple circumstances where the prosecution can introduce evidence of bad character of the defendant. For instance, the evidence can be introduced in scenarios where it is relevant to a matter important in issue between the prosecution and the defendant, where both parties have agreed to it, or where the defendant has attacked the character of another person. Stockdale, Christina and Michelle[19] indicated that if the prosecution has intentions of introducing the evidence of bad character of the defendant, it has to give the defendant ad the court prior notice. Moreover, the courts can also allow the introduction of bad character of a witness evidence other than that of the defendant. Unless the parties are agreement, the party intending to introduce the evidence must make an application to the court for leave of doing so. Thereafter, the court will determine as to whether such evidence would have a probative value that is substantial
Evidence of bad character of the defendant is another evidential issue in the case of Valerie Verses Donald. These are evidence of disposition a disposition of Donald toward misconduct, apart from the evidence of having to do with the sexual assault case he is being prosecuted. Bad character evidence is presented by PC Gently who pretended to be a mother with a child at the same school, and stroke up a friendship with Donald. One day PC Gently accepts a lift home from the school from Donald where he stopped the car in a secluded place and grabs her and he was arrested.
Physical evidence
Brandon[20] pointed out that a party in a case can introduce a physical evidence as a separate item of evidence or as an exhibit to a statement of a witness. The physical evidence are in different forms and range from the incriminating objects such as the weapons, drawings, charts, maps, photographs, video recordings among others. The physical evidence in the sexual assault case include medical reports from Valerie’s surgeon, and the written home address note by Valerie found in Donald’s desk
Critically analyse ONE of the evidential issues arising in the question and identified in part
Hearsay: Plaintiff’s sexual history evidence
Hearsay evidence admissibility in criminal proceedings are outlined Criminal Justice Act 2003 part II sections 114-136. Hearsay is defined as a statement that is evidence and not stated during the proceedings.[21] A statement according to West Group, and Sweet & Maxwell[22] is defined as any representation of opinion or fact made by an individual by whatever means, including a representation made in pictorial form, photo fit or in sketch. A “matter stated” in criminal proceedings is one where one of the purposes or the purposes of the individual making the statement seems to have been another person’s cause to believing the matter, or causing another person to act, or even a machine to operate on the premise that the matter is as stated.[23]
The effect of the statement definition is to enable admissibility of the evidence of the “implied assertions.” From the definition of the statement, it reverses the made decision sin the case of R verses Kearley (1992) 2 AC 228[24] whereby the police officer answered personal calls and telephone calls to the home of the defendant from the people who asking for the drugs that the defendant was selling. The wish of the prosecution was to adduce the evidence as a proof that the intended calls recipient was a drug dealer, without the evidence retrieved from the callers. The decision of the House of Lords was that as evidence from the fact that the defendant was a drug dealer, the words of the alleged were just hearsay and therefore inadmissible. The words in the calls do not fall within or are in line with the definition of it being a “matter stated” because the calls purpose was not meant to cause another person to have a belief that the call recipient was a dealer in drugs but simply to ask for the drugs.[25]
With the increasing sexual harassment litigation frequency, defendants are attempting discovering and introducing related evidence of the past sexual conduct of the plaintiff as part of their strategy of defence. According to Great Britain[26] a defendant may attempt using evidence of the sexual history of the plaintiff in supporting the contention that she is a “promiscuous” lady and that in line with her trait, she seduced and solicited the advances of the defendant or in the situation, and she was the sexual aggressor.[27] The defendant may also look for the past sexual conduct evidence with the hope of showing that in accordance to her past behaviour, there is no likelihood that the plaintiff was emotionally disturbed or offended by the conduct of the defendants.[28] Similarly, Zander[29] stated that the defendants may wish to apply the past sexual conduct evidence in attacking the credibility of the plaintiffs as a witness. In the case scenario of Valarie and a Donald, the defendant who is Donald, makes an allegation as part of his defence about the past sexual history of Valerie. After being arrested, Donald now admitted that he had sexual intercourse with Valerie on the 29th April but claimed that she consented. Moreover, he told his counsel, however, that he has had a sexual relationship with Valerie for some time, and that Valerie has had such relationships with a number of the fathers at the school. This is an allegation of discovering and admitting past sexual history and behavior of the plaintiff by the defendant as a defense strategy.
The defendant in sexual harassment seeking to admit or discover evidence of the sexual history of the plaintiff may be doing so in an attempt of playing upon the prejudices of trier of facts, and also in making the litigation uncomfortable for the plaintiff to the point that she Is willing to settle for a fraction of the potential value or even to abandon it. Therefore, Sherrin, Christopher & Philip[30] asserted that it is imperative that the attorney of the plaintiff be prepared in protecting the plaintiffs from improper admission and discovery of evidence about the plaintiffs past sexual behaviour.
The law reforms done in 2007 was intended to increase the rates of convictions for the sexual assault. The reforms proposed that hearsay evidence where the rape victim tells friends or families about an attack that occurred to her/him and not the police to be included and heard in a court of law regardless of whether it was made recently or many days ago. Previously, the admissibility of the evidence was only if the rape complaint was reasonably made quickly after an attack. This implied that a rape victim who kept her experiences secret for many years is disadvantaged in the court.[31]
References
Brownmiller, Susan. Against Our Will: Men, Women, and Rape. [2013]. <http://www.contentreserve.com/TitleInfo.asp?ID={33FDC7C9-B0A5-4753-AAE5-501C03847EE1}&Format=410>.
Mackinnon, Clement. The Sexual Harassment Of Working Women [1979].
Criminal Justice Act 2003, section 114 [1]
UK, FindLaw. “The Rules of Evidence: An Overview.” RSS. December 1, [2014]. <http://www.findlaw.co.uk/law/dispute_resolution/litigation/trial/500249.html.>
Stockdale, Michael, Christina McAlhone, and Michelle Robson. Civil Evidence Act 1995. Newcastle upon Tyne: Northumbria Law Press, [1997].
“R v Kearley.” CaseLaw Wiki. Accessed December 26, 2014. <http://caselaw.wikia.com/wiki/R_v_Kearley.>
West Group, and Sweet & Maxwell. United Kingdom Crime Commentary. Westlaw International. St. Paul, MN: West Group, [1900]. <http://eproxy.lib.hku.hk/login?url=http://www.westlaw.com/signon/default.wl?RS=IMP1.0&VR=1.0&sp=hku-2000&clientID=HKLAWSCHOOLS&cbhf=none>.
Brandon, Jay. Rules of Evidence. New York: Pocket Books, [1992].
Spencer, John R. Hearsay Evidence in Criminal Proceedings. [2014].
Fletcher, Kevin. United Kingdom Selected Issues Paper. Washington, D.C.: International Monetary Fund, [2010]. <http://www.myilibrary.com?id=386535>.
Zander, Michael. The Police and Criminal Evidence Act 1984. London: Sweet & Maxwell Police Review Pub. Co, [1985].
Sherrin, Christopher, and Philip Downes. The Criminal Lawyers’ Guide to Disclosure and Production. Aurora, Ont: Canada Law Book, [2000].
Safferling, Christoph Johannes Maria, and Lars Büngener. International Criminal Procedure. Oxford: Oxford University Press, [2012]. <http://public.eblib.com/choice/publicfullrecord.aspx?p=975552>.
New South Wales. Expert Witnesses. Sydney: New South Wales Law Reform Commission, [2004]
Spencer, John R. Hearsay Evidence in Criminal Proceedings. Oxford: Hart Pub, [2008].
Great Britain. Evidence in Criminal Proceedings: Hearsay and Related Topics. London: H.M.S.O., [1995].
West Group, and Sweet & Maxwell. United Kingdom Crime Commentary. Westlaw International. St. Paul, MN: West Group, [1900]. <http://eproxy.lib.hku.hk/login?url=http://www.westlaw.com/signon/default.wl?RS=IMP1.0&VR=1.0&sp=hku-2000&clientID=HKLAWSCHOOLS&cbhf=none>. ↑
Ibid., [223] ↑
Stockdale, Michael, Christina McAlhone, and Michelle Robson. Civil Evidence Act 1995. Newcastle upon Tyne: Northumbria Law Press, [1997]. ↑
Ibid., [233] ↑
Zander, Michael. The Police and Criminal Evidence Act 1984. London: Sweet & Maxwell Police Review Pub. Co, [1985]. ↑
Ibid., [77] ↑
Saunders v. United kingdom, [1989]
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58009#{%22itemid%22:[%22001-58009%22]} ↑
Sherrin, Christopher, and Philip Downes. The Criminal Lawyers’ Guide to Disclosure and Production. Aurora, Ont: Canada Law Book, [2000]. ↑
Fletcher, Kevin. United Kingdom Selected Issues Paper. Washington, D.C.: International Monetary Fund, [2010]. <http://www.myilibrary.com?id=386535>. ↑
Sherrin, Christopher, and Philip Downes. The Criminal Lawyers’ Guide to Disclosure and Production. Aurora, Ont: Canada Law Book, [2000]. ↑
New South Wales. Expert Witnesses. Sydney: New South Wales Law Reform Commission, [2004] ↑
Spencer, John R. Hearsay Evidence in Criminal Proceedings. Oxford: Hart Pub, [2008]. ↑
[2009] ECHR 26766/05 and 22228/06. <http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB0QFjAA&url=http%3A%2F%2Fwww.lawreform.ie%2F_fileupload%2Fhearsayfull.pdf&ei=3N2eVMScM-rNygPKyoCQCw&usg=AFQjCNGIi_Ga95pkIhDJZWl-yYrnCvDy7Q&sig2=ExzbjWcbvIatF_8N-Tlybg&bvm=bv.82001339,d.bGQ> ↑
Horncastle & Ors, R. v [2009] UKSC 14 (09 December 2009) <http://www.bailii.org/uk/cases/UKSC/2009/14.html> ↑
Wright v. Doe D. Tatham [1837] ↑
ibid ↑
Safferling, Christoph Johannes Maria, and Lars Büngener. International Criminal Procedure. Oxford: Oxford University Press, [2012]. <http://public.eblib.com/choice/publicfullrecord.aspx?p=975552>. ↑
UK, FindLaw. “The Rules of Evidence: An Overview.” RSS. December 1, [2014]. <http://www.findlaw.co.uk/law/dispute_resolution/litigation/trial/500249.html.> ↑
Stockdale, Michael, Christina McAlhone, and Michelle Robson. Civil Evidence Act 1995. Newcastle upon Tyne: Northumbria Law Press, [1997]. ↑
Brandon, Jay. Rules of Evidence. New York: Pocket Books, [1992]. ↑
Criminal Justice Act 2003, section 114 [1] ↑
West Group, and Sweet & Maxwell. United Kingdom Crime Commentary. Westlaw International. St. Paul, MN: West Group, [1900]. <http://eproxy.lib.hku.hk/login?url=http://www.westlaw.com/signon/default.wl?RS=IMP1.0&VR=1.0&sp=hku-2000&clientID=HKLAWSCHOOLS&cbhf=none>. ↑
Great Britain. Evidence in Criminal Proceedings: Hearsay and Related Topics. London: H.M.S.O., [1995]. ↑
“R v Kearley.” CaseLaw Wiki. Accessed December 26, 2014. <http://caselaw.wikia.com/wiki/R_v_Kearley.> ↑
Ibid ↑
Great Britain. Evidence in Criminal Proceedings: Hearsay and Related Topics. London: H.M.S.O., [1995]. ↑
Spencer, John R. Hearsay Evidence in Criminal Proceedings. [2014]. ↑
Fletcher, Kevin. United Kingdom Selected Issues Paper. Washington, D.C.: International Monetary Fund, [2010]. <http://www.myilibrary.com?id=386535>. ↑
Zander, Michael. The Police and Criminal Evidence Act 1984. London: Sweet & Maxwell Police Review Pub. Co, [1985]. ↑
Sherrin, Christopher, and Philip Downes. The Criminal Lawyers’ Guide to Disclosure and Production. Aurora, Ont: Canada Law Book, [2000]. ↑
Townsend, Mark. “Hearsay Rules Offer New Hope in Rape Cases.” October 21, 2007. <http://www.theguardian.com/uk/2007/oct/21/ukcrime.theobserver.> ↑
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