HEARSAY EVIDENCE

Hearsay testimony is secondhand evidence; it is not what the witness knows personally, but what someone else told him or her. Scuttlebutt is an example of hearsay. In general, hearsay may not be admitted in evidence, but there are exceptions. For instance, if the accused is charged with uttering certain words, a witness is permitted to testify that he or she heard the accused speak them.

The following examples illustrate hearsay that is inadmissible:

1. SN Water, the accused, is being tried for desertion. BMC Boate cannot testify that BM3 Christmas told him that SN Water said he (Water) intended to desert.

2. The accused is being tried for larceny of clothes from a locker. A testifies that B told him that she saw the accused leave the space where the locker was located with a bundle of clothes about the same time the clothes were stolen. This testimony from A would not be admissible to prove the facts stated by B.

Neither BMC Boate nor A would be allowed to testify, but the trial counsel could call BM3 Christmas and B as witnesses. The fact that hearsay evidence was given to an officer in the course of an official investigation does not make it admissible. Now let's look at two exceptions to the rules for hearsay evidence: dying declarations and res gestae.

Dying Declarations

Dying declarations of a victim that relate to facts surrounding the act that caused his or her dying condition are excepted from the hearsay rule. Such declarations are admissible in homicide cases. To be admissible as a dying declaration, the declaration must have been made while the victim was at the end of life (extremity) or under a sense of impending death and without hope of recovery.

In most jurisdictions, if the statement is to be introduced at a trial for criminal homicide, the person making the declaration must actually have died. If that person did not die, he or she would, of course, appear as a witness. A transcript of oral evidence of the dying declaration of the victim is admissible and may be repeated in court provided it is shown that the person knew that he was dying when the declaration was made, that the statement pertained to his own homicide, and that he was competent to testify. In the trial of A for murder, for example, the statement the deceased made, a few minutes before his death, that A shot him will be held admissible.

Res Gestae

Still another exception to hearsay testimony comes under the heading of res gestae. Res gestae are involuntary exclamations or acts made at the time the offense was committed and are so closely connected to the main fact in issue as to be a part of it. These utterances or acts are not planned, but are forced from the individual by the excitement of the moment. The ground of reliability upon which such declarations are received is their spontaneity; they are the facts talking through the party.

Res gestae also cover matters of identification. If a man witnesses a killing, for example, and afterwards sees the accused and, without thought, asserts: "There's the man who did the killing," his remark would be admissible.

COURT PROCEEDINGS

LEARNING OBJECTIVES: Determine the order in which evidence is presented in court, Describe the methods used to bring witnesses to court, and who may testify in court. Define credibility of a witness. Explain disqualification and impeachment of a witness. Identify the difference between depositions and affidavits.

We will now discuss some of the court procedures that you will find helpful when preparing an investigation. A working knowledge of court proceedings will also help if you have to appear in court.

ORDER OF EVIDENCE

Evidence is introduced first by the prosecution, then by the defense. Next, the prosecution rebuts the defense evidence. In conclusion, the defense has its surrebuttal. The court, in the interest of justice, may allow new evidence to be introduced at any time before it brings in a verdict.

During the rebuttal, the prosecution may introduce evidence to explain or contradict the evidence brought forward by the defense. The evidence of defense witnesses may be impeached (its truth questioned), or the truthfulness of the prosecution witnesses may be upheld. In the surrebuttal, the defense tries to discount the evidence brought out in the rebuttal.

Witnesses always are examined separately; no witness is allowed to be present in court while another witness is testifying. This practice, of course, does not apply to the accused, the trial counsel, the defense counsel, or members of the court, should they testify. Objection to a witness on the grounds of incompetence is made before he is sworn. The court decides whether such an objection is valid. Similarly, when the opposing side objects, the court rules on the admissibility of any question asked a witness.

ATTENDANCE OF WITNESSES

The attendance of witnesses is obtained by serving them a subpoena. This method of calling witnesses applies to civilians appearing before any judicial body appointed to inquire into the truth of a matter of general interest.

Any court-martial can require any member of the Armed Forces to appear before it as a witness. If the witness is stationed near the location of the court (so that travel at government expense is unnecessary), the trial counsel customarily notifies the witness, orally or in writing, of the date and place of the trial. To assure the attendance of the witness, his or her commanding officer should be advised informally. If a formal notice is required, the trial counsel makes a request to the commanding officer of the witness to ensure his or her appearance.

If the witness is not stationed close to the location where the court-martial will convene, the commanding officer will issue orders for travel at government expense to the trial. If practicable, a request for the attendance of a military witness is made in ample time to allow notice of at least 24 hours before the court convenes.

The trial counsel is authorized to subpoena as a witness, at government expense, a civilian in the United States or its territories and possessions, and can compel the civilian's attendance at the trial. If practicable, a subpoena is issued at least 24 hours before the time the witness must travel from home to comply with the subpoena.

The trial counsel, the defense counsel, and the court-martial are given equal opportunity to obtain witnesses. The trial counsel takes timely and appropriate action to provide for the attendance of those witnesses who have personal knowledge of the facts at issue in the case, both for the prosecution and for the defense.

WHO MAY TESTIFY?

The greater portion of the law of evidence is concerned with the rules that gradually have grown up in the courts respecting persons who may testify, and the manner in which their testimony may be given. Keep in mind that the sole objective of the rules of evidence is to arrive at the truth. A witness testifies regarding his or her knowledge of the facts as a matter of public duty, and only with the imposition of conditions the law authorizes. An example of an unauthorized condition would be an agreement to pay a witness additional compensation exceeding that authorized by law for his or her testimony.

Accused and Accomplice

The accused is allowed to testify if he or she desires. But the accused can never be forced to testify. If the accused elects not to take the witness stand, no comment may be made on this fact. The Constitution provides that no one may be compelled to testify against himself or herself.

An accomplice is always competent to testify although he or she cannot be required to answer questions when the answers might be incriminating. When an accused or accomplice testifies, the court, when deciding the creditability of the testimony, will carefully consider the evidence given.

Counsel

The trial counsel or the counsel for the accused may testify when his or her testimony is desired.

Children

The admissibility of testimony from a child is governed not by the child's age but by the child's sense and understanding of the facts and by his or her understanding of the importance of telling the truth.

Husband and Wife

The rules governing certain restrictions on the testimony of husband and wife are as follows:

1. The wife or husband of an accused may testify for the accused without restriction, but the witness may be cross-examined by the trial counsel.

2. The wife or husband of an accused may not be called to testify against the accused without the consent of both the accused and the witness unless the offense was committed by the accused against the witness.

3. A wife or husband may not testify to confidential communications received from the other unless the other gives consent.