Hearsay Evidence Research Articles

Seem and evidentiality

The paper is an empirical, corpus-based analysis of the functions of seem with different complementation structures and in impersonal constructions as well as in combinations with an experiencer. The focus is on describing how evidentiality (e.g. inferencing/observation or hearsay evidence) interacts with degrees of certainty or factivity of the construction. Other features are subjectivity and intersubjectivity (shared or non-shared information). Translations from English into Swedish have been used to get a more fine-grained picture of the degree of certainty expressed by seem and its relationship to the type of evidence. The different constructions with seem and their functions are explained in a grammaticalization perspective. Seem conforms to a number of principles such as layering and divergence (Hopper). Seem to is the most grammaticalized form and can be regarded as an evidential marker which is similar to the modal auxiliaries.

OUT‐OF‐COURT STATEMENTS BY VICTIMS OF CHILD SEXUAL ABUSE TO MULTIDISCIPLINARY TEAMS: A CONFRONTATION CLAUSE ANALYSIS

Acknowledging the rapid growth of child sexual abuse in the United States, this Note advocates for the recognition of a limited exception to the blanket‐hearsay ban on out‐of‐court statements made by unavailable declarants set out by the Supreme Court in Crawford v. Washington. In order to protect a criminal defendant's Sixth Amendment confrontation right, Crawford requires that hearsay evidence that is “testimonial” in nature be deemed inadmissible if the witness is unavailable and the defendant does not have a prior opportunity to cross‐examine the witness against him. However, Crawford noted that, where nontestimonial hearsay is at issue, cross‐examination may not be necessary. Accordingly, where a child sexual abuse victim makes statements during a structured or semi‐structured forensic interview to a member of a multidisciplinary team, these statements should be deemed nontestimonial and thus admitted into evidence, without requiring cross‐examination of the child. Allowing for this exception to the general hearsay ban in Crawford is not only consistent with current precedent, but it is also warranted to promote public policy and to curb the negative impact such abuse has on society.

Evidence of Bad Character by J.R. Spencer and Hearsay Evidence in Criminal Proceedings by J.R. Spencer

Evidence of Bad Character by J.R. Spencer and Hearsay Evidence in Criminal Proceedings by J.R. Spencer

Res Gestae in Indian Evidence Act

Section 6 of the Indian Evidence Act explains the principle of res gestae. Hearsay evidence is not admissible in court of law. But, res gestae is exception to hearsay rule. The rationale behind this is the spontaneity and immediacy of such statement that there is hardly anytime for concoction. So, such statement must be contemporaneous with the acts which constitute the offence or at least immediately thereafter. Res gestae includes facts which form part of same transaction. So, it is pertinent to examine what is a transaction, when does it start and when does it ends. If any fact fails to link itself with the main transaction, it fails to be a res gestae and hence inadmissible. If any statement is made under the stress of excitement than such statement form part of the same transaction and is admissible before the court of law. The strength of sec. 6 lies in its vagueness. Each case in criminal law should be judged according to its own merit. When it is proved that the evidence forms part of the same transaction it is admissible under sec. 6 but whether it is reliable or not depends on the discretion of the Judge.

Watermarks

Watermarks

Going "Straight to Basics": The Role of Lord Cooke in Reforming the Rule Against Hearsay - from Baker to the Evidence Act 2006

In April of 1989, Cooke P, as he then was, proposed a test for the admissibility of oral hearsay (the fearful remarks of a woman later killed by her estranged husband) in a criminal trial. This common law admissibility test, focussing on the reliability of the statement (while implicitly acknowledging that the maker of the statement was not "available" to testify), was further developed in the Court of Appeal's decision in Bain (1996), and confirmed to have broad application in Manase (2001). The reliability and unavailability test has now become the admissibility test for hearsay evidence in the Evidence Act 2006. In this paper written in his honour, the author discusses the legacy of Lord Cooke in the 21st century liberalisation of the rule against hearsay.

To the End of the Earth: A History of the Crypto-Jews of New Mexico

This ambitious work seeks to combine conventional historical methods, critical use of published and unpublished written sources, genealogical research, and oral histories. It is thus, as its author puts it, “the first attempt to provide a comprehensive historical analysis of crypto-Judaism in New Mexico from the earliest European settlement in the late sixteenth century to the mid twentieth century” (p. 7). On the whole, it seems to me that he has succeeded in his aims, thanks in particular to his extensive research in Inquisition archives in Mexico City and Spain, as well as in other unpublished documentary material in AGI archives. It is remarkable — even astonishing — though, that we have had to wait until 2005 for a book to appear on a topic that is so intrinsically interesting and that so directly links North American history with that of the Iberian Peninsula: the history of crypto-Judaism in New Mexico.His is also a topic that requires the historian to provide a great deal of background. Wisely, Hordes keeps his first chapter, on the origins of crypto-Judaism in the Iberian Peninsula, brief. He gives a much more detailed review of the history of the Portuguese New Christians in New Spain, making some use of previously published works but not relying entirely on them. He incorporates his own research on a number of key episodes, such as the 1641 – 42 campaign headed by Bishop Palafox against the Portuguese in New Spain, which immediately led to the biggest Inquisition sweep ever carried out against the New Christians in the colony. While the author’s reliance on his own archival investigations is generally a strength, in some places it is a weakness. One obvious instance is his rather inadequate treatment of the question of religious syncretism and the absorption of Catholic ingredients into crypto-Jewish religious practice and thought in New Spain and New Mexico. As a number of striking omissions from his bibliography confirm, here (as elsewhere in the book) the study would have been buttressed had Hordes made reference to relevant publications from scholars such as Eva Uchmany and, laterally, Nathan Wachtel.The Inquisition arrested a number of high-profile alleged “Judaizers” in New Mexico, including the recently replaced former governor of New Mexico, Bernardo López de Mendizábal, a native of the village of Chietla, near Puebla, in central Mexico. López de Mendizábal was charged with Judaizing during the early 1660s. It is clear that the arrests were politically motivated; López de Mendizábal was on the worst possible terms with the local Franciscans, who were the agents of the Holy Office in this region. Some scholars have concluded on this basis that the accusations should be disregarded. Hordes’s carefully inspection of the trial records, however, provides enough evidence to challenge the view that these were merely trumped-up charges; he also finds evidence that several of the accused were probably at least partly of Jewish origin and may indeed have been, to some degree, practicing crypto-Jews. One of these, Francisco Gómez Robledo, after twice being inspected by the Inquisition’s surgeons, was judged to have been circumcised (pp. 158 – 59), a fact considered at the time to be certain evidence of his parents’ Jewish practices (though reading the text of the reports, any modern reader is bound to retain some doubt about whether the marks observed really were evidence of circumcision).No historian familiar with the history of New Spain will seriously question the conclusion that at least a few crypto-Judaizers made their way to New Mexico. Even so, most of the Inquisition material gathered against the suspects is hearsay evidence that the determined skeptic can readily enough disregard. The real question is whether or not there was anything more than a very sporadic individual presence of crypto-Jews. All things considered, Hordes makes as good a case as one can to support his proposal that crypto-Judaism had a long and continuous history in New Mexico, from the end of the sixteenth century to the beginning of the twenty-first, and that crypto-Judaism established deep roots in the region. Given the lively consciousness of a secret Jewish heritage prevalent among some New Mexican Hispanos that endures until today, it seems likely that, on the balance, Hordes is right. Even so, I must say that this reader, at least, was left at the end of his book with more than a shred of lingering doubt.

The Confrontation Clause after Crawford v. Washington

The paper discusses the Confrontation Clause in light of the Crawford v. Washington decision, and addresses the following questions: When Does the Clause Apply? How Can the Clause Be Satisfied? How Does the Confrontation Clause Relate to the Hearsay Rule? What If the Hearsay Evidence is Nontestimonial? What Did Crawford and Davis HoId as to Whether a Statement isTestimonial or Nontestimonial? How Did the Maryland Court of Appeals Interpret Crawford in Snowden? What About Business Records of the State? How Are Prosecutors and Domestic Violence Victim-Advocates Likely to Adapt to these Charges? Forfeiture of Right to Object? How Can We Analyze Whether Statements Outside the Holdings of Crawford and Davis are Testimonial?

Unfortunate Legacies: Hearsay, Ex Parte Affidavits and Anonymous Witnesses at the IHT

The Iraqi High Tribunal (IHT) carried forward three unfortunate practices from previous war crimes tribunals. The IHT allowed hearsay evidence and the reading of ex parte affidavits as evidence, two of the most criticized practices of the Nuremberg Tribunal. The IHT also allowed the admission of testimony by anonymous witnesses, a legacy of the Yugoslavia Tribunal which has since been rejected by that same court. This article argues that the admission of such evidence by the IHT was improper and wholly unnecessary given the extensive documentary evidence in the case. The article concludes that the IHT and other tribunals should explicitly detail the evidence which was not relied upon in making major factual findings, particularly when dealing with unreliable evidence. Only through such explicit rejection can tribunals prove that a defendant can get a ``fair trial on the evidence."

The effects of judicial admonitions on hearsay evidence

Using a simulated civil case, this experiment investigated whether mock jurors: (a) are able to disregard hearsay evidence when admonished to do so, (b) experience psychological reactance and “backfire effects” in proportion to the strength of judicial admonition instructing them to disregard hearsay evidence, and (c) are able to recognize and disregard hearsay evidence without judicial instructions. Results indicate that jurors were unable to disregard inadmissible hearsay testimony in some legal decisions regardless of whether there were judicial instructions to do so. Jurors exhibited backfire effects paying more attention to inadmissible hearsay evidence when they were strongly instructed to disregard it. More specifically, juror backfire effects were evident in both their confidence in their liability verdicts and in their punitive damage awards. The legal and policy implications of these findings are discussed.

Exploring the legal status of healthcare documentation in the UK

This article considers the legal status of documentation and the point at which records become legal documents. It outlines the powers of the courts that require any documentation or other records to be produced if relevant to an issue arising in a dispute. It also discusses hearsay evidence and the fact that usually evidence on records needs to be corroborated.

Evidence of Atrocities or Atrocious Use of Evidence: The Controversial Use of Atrocity Film at Nuremberg

This article focuses upon the utilisation of film evidence in criminal proceedings. It describes and evaluates the historical deployment of this type of material at War Crimes Trials, with particular emphasis upon the International Military Tribunal established at Nuremberg, in 1945, in the wake of the Second World War. During this Trial, the prosecution placed reliance upon the film, Nazi Concentration Camps, depicting with graphic realism the horrific barbarism of the Nazi regime. However, this was only made possible by the implementation of innovatory evidential procedures, effectively circumventing the hearsay rule. A comparison is drawn between this, and the current position in England and Wales, following the recent relaxation of the traditional embargo upon hearsay evidence. However, film evidence of the type adduced at Nuremberg may be more prejudicial than probative and should such circumstances arise, the interests of justice may not truly be served.

Hearsay evidence and the child witness

In terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 the court has, since 3 October 1988, been given a wide discretion to admit hearsay evidence if it would be in the interests of justice to do so. How this discretion is to be applied has given rise to difficulty. The question to be addressed here is whether it would be in the interests of justice to admit the hearsay statements of a child who is a complainant in a criminal matter and who is subsequently unable to testify. The courts are very wary of admitting hearsay statements emanating from children, due to issues of competency and the cautionary rule, and for this reason certain countries have created specific legistative provisions to regulate the admissibility of children's hearsay statements. In Namibia, the Combating of Rape Act 8 of 2000 admits hearsay via the backdoor. It is submitted that not legislation, but a common sense approach is needed to determine whether hearsy statements from child victims should be admissible. The fact that evidence is hearsay is a factor which should go to weight and not the admissibility thereof. Hoorse-getuienis en die kindergetuie In terme van artikel 3(1)(c) van die Wysigingswet op die Bewysreg 45 van 1988 het die hof sedert 3 Oktober 1988 'n wye diskresie om hoorsegetuienis toe te laat indien dit in die belang van geregtigheid is. Die toepassing van die diskresie is problematies. Die vraag is of dit in die belang van geregtigheid is om die hoorse-verklaring van 'n kinderklaagster, wie nie kan getuig in 'n strafsaak nie, toe te laat. Die howe is lugtig om hierdie tipe verklarings toe te laat vanwee die kwessies rondom bevoegdheid en die versigtigheidsreel, en daarom het sekere lande spesifieke statutere voorsorgmaatreels ingestel wat die hoorse-verklarings van kinders reguleer. In Namibie word hoorse indirek toelaatbaar deur die Combating of Rape Act 8 of 2000. Die skrywers stel voor dat 'n “common sense” benadering gevolg moet word om te bepaal of die hoorseverklarings van kinderslagoffers toelaatbaar is. Die feit dat getuienis hoorse is, is 'n faktor wat tersaaklik is by die waarde-evaluering en nie die toelaatbaarheid daarvan nie. (Journal for Juridical Science: 2002 27(2): 33-46)

Admitting Hearsay Evidence in Disputed Recalls

Admitting Hearsay Evidence in Disputed Recalls

ANTI-SOCIAL BEHAVIOUR ORDERS—CRIMINAL PENALTIES OR CIVIL INJUNCTIONS?

In R. (McCann and others) v. Crown Court at Manchester and another, Clingham v. Kensington and Chelsea Royal London Borough Council [2002] UKHL 39, [2002] 3 W.L.R. 1313 the House of Lords, dismissing the defendants appeals, unanimously held that the application for an Anti-Social Behaviour Order (ASBO) under section 1 of the Crime and Disorder Act 1998 was civil and not criminal in nature. Therefore the rule against the admissibility of hearsay evidence in criminal proceedings (which can arguably also be inferred from the provision on examination of witnesses in Article 6(3)(d) of the European Convention on Human Rights) did not apply; however, the heightened civil standard of proof, indistinguishable from the criminal standard of proof, would nevertheless be required.

The Nature of the Anti‐Social Behaviour Order –R (McCann & Others) v Crown Court at Manchester

Should proceedings under section 1(1) of the Crime and Disorder Act 1998 for the imposition of an anti-social behaviour order (ASBO) be classified, both domestically and for the purposes of Article 6 ECHR, as civil or criminal proceedings? The importance of this question, which faced the House of Lords in R (McCann & others) v Crown Court at Manchester, Clingham v Kensington and Chelsea Royal London Borough Council, lay in its implications for the admissibility of hearsay evidence in these proceedings. If they were domestically classified as criminal proceedings the rule against hearsay evidence would apply, and if they involved the determination of a ‘criminal charge’ Article 6(3)(d) (‘everyone charged with a criminal offence has the following minimum rights y to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’) would apply. ASBOs were designed to remedy a ‘serious social problem.’ The criminal law ‘offered insufficient protection to communities’ who were plagued by ‘young persons, and groups of young persons, [causing] fear, distress and misery to law abiding and innocent people by outrageous anti-social behaviour.’ (per Lord Steyn at [16]) The structure of a civil injunction with criminal penalties for breach was designed so as to allow the orders to be imposed without the necessity of these frightened and intimidated people, frequently neighbours, giving direct evidence. If they were to be classified as criminal proceedings, either domestically or for the purposes of Article 6, ‘it would inevitably follow that the procedure for obtaining anti-social behaviour orders is completely or virtually unworkable and useless.’ (per Lord Steyn at [18]) Lord Steyn thus commented

The Hearsay Rule and Delayed Complaints of Child Sexual Abuse: The Law and the Evidence

This article discusses the implications of two recent High Court cases on the admissibility of hearsay evidence of a child's delayed disclosure of child sexual abuse. It compares and contrasts the traditional legal significance of delayed disclosure (as being evidence of fabrication) with prevalence studies from the psychological literature which show that a majority of children delay disclosure and that, rather than being an aberrant feature of child sexual abuse, delay is a typical response of sexually abused children as a result of confusion, denial, self-blame and overt and covert threats by offenders. In addition, several self-report studies of offenders confirm that grooming processes create a relationship of power between the child and offender such that delayed disclosure appears to reflect the position of powerlessness of the sexually abused child within that relationship. In light of what the psychological literature tells us, this article challenges the narrow legal approach to the admissibility of hearsay evidence of delayed disclosure and suggests that a special exception should be made for hearsay statements of a child's delayed disclosure in child sexual assault trials.

Hearsay: Identification and Admissions

This article seeks to explore the relationship between identification evidence and the rule against hearsay evidence. It focuses on how the courts have ignored or sought to evade application of the rule and concludes by examining a recent decision of the Court of Appeal that illustrates the lengths that courts will resort to in order to admit evidence perceived as being reliable.

The Hearsay Rule and Delayed Complaints of Child Sexual Abuse: The Law and the Evidence

This article discusses the implications of two recent High Court cases on the admissibility of hearsay evidence of a child’s delayed disclosure of child sexual abuse. It compares and contrasts the traditional legal significance of delayed disclosure (as being evidence of fabrication) with prevalence studies from the psychological literature which show that a majority of children delay disclosure and that, rather than being an aberrant feature of child sexual abuse, delay is a typical response of sexually abused children as a result of confusion, denial, self-blame and overt and covert threats by offenders. In addition, several self-report studies of offenders confirm that grooming processes create a relationship of power between the child and offender such that delayed disclosure appears to reflect the position of powerlessness of the sexually abused child within that relationship. In light of what the psychological literature tells us, this article challenges the narrow legal approach to the admissibility of hearsay evidence of delayed disclosure and suggests that a special exception should be made for hearsay statements of a child’s delayed disclosure in child sexual assault trials. The accepted wisdom about the rules of evidence that apply in the criminal trial is that they “ensure that the trial process is fair for [both] parties” to the proceedings (Australian Law Reform Commission

An Attempt to Evaluate Teaching Quality: One department's story

University academic staff generally assume that their promotion or otherwise depends more on their research output than on their teaching ability. Why? Because research is perceived as readily measurable, whereas teaching quality is perceived as hearsay evidence, or, at best, determined by student feedback questionnaires (SFQs). In universities where SFQs are taken into account many staff are no happier as they feel these are biased, or at least flawed, indicators. The Departmental Teaching and Learning Committee of the author's university department decided to try developing a Teaching Evaluation Index which comprised a weighted sum of three indicators: SFQs, in-class peer evaluation and teaching portfolio quality. All three of these elements have their limitations, of course, but in combination the bias in one may, to a large extent, balance out the biases in the others and give a reasonably reliable indicator of teaching ability.