Members; Group 25:
- Mutenyo Patricia Maumo G34/38732/2011
- Gitau Mercy Wambui G34/39385/2011 -
- Wamugunda Wilfred Mwangi G34/39703/2011 -
- OsoroLaurettahNyanchoka G34/38236/2011 -
- Wangigi Purity Njeri G34/39715/2011 -
- NdukuBrenda Mueni G34/39817/2011 -
- Ochieng Mercy Segah G34/37926/2011 -
- Mungai Wendy Wanjiku G34/39813/2011 -
- Chege Caroline Wairimu G34/39805/2011
- Wachira MaryanneWanjiku G34/40001/2011
Contents
The Trial process; Demeanor Evidence and Admissibility
Evidence
The Trial Process
Demeanor of the Witness at Trial
Demeanor of the Witness during a Police Interrogation.
Conclusion
The Trial process; Demeanor Evidence and Admissibility
Vital information and pointers are drawn not only from dry facts and evidence, but also from deductions made during investigations and fact finding missions of the innocuous statements made and physical reactions that congeal into something coherent, logical and revealing. Also,remarks made innocently or repeated by one or more people in describing an incident or event might expose some hidden conspiracy, which would otherwise have gone undetected. The lawyers also infer very critical facts by observing another testify under oath ina court room.Consequently, trials have been in use since the ancient world for their efficiency.
This piece analyses the general rule of evidence“all relevant evidence is admissible subject to the exceptions”, converges to demeanour evidence as a subtype of evidence together with the technicalities of its admission in court.
Evidence is used to prove either facts in issue or relevant facts from which the facts in issue may be inferred. It includes testimonies of witnesses, documents and objects that can be used as evidence.
Parties to an action are not given a blanket permission to put all the information that may assist their case before the court. They are only permitted to put before the court evidence that is relevant to a fact in issue and admissible subject to exclusions of the law of evidence.[1]
Relevance of evidence as defined by Stephen Digest refers to any two facts to which if it is applied are so related to each other that according to the common course of events one taken whether by itself or with connection with other facts proves or renders probable the past, present or future existence or non existence of the other.
The statement above by Miguna M describes relevant evidence that is admissible in court subject to exceptions. It includes:
- Dry facts and Evidence
- Fleeting impressions gauged and observed when one testifies under oath or gives an account of an event during investigations, inquiries, fact finding missions, examinations or trials.
- Remarks made innocently or repeated by one or more people in describing an incident
The two latter points are deductions made by the tribunal of fact during trial, or during cross examinations by dint of the appearance or demeanor of the witness and repeated comments made by several witnesses while describing an incident.
We classify demeanor evidence as real evidence on the premise of the definition that real evidence must be something that is capable of making an impression on the court and includes the actual appearance of a witness. [2]
Evidence
The Kenyan Evidence Act puts it as: the means by which an alleged matter of fact, the truth of which is submitted to investigations, is proved or disapproved, without prejudice to the forgoing generality, includes statements by accused persons, admissions and observation by the court in its judicial capacity.
There are several kinds of evidence that can be put before the court. They include; direct or percipient evidence, circumstantial evidence, hearsay, original, primary, secondary, presumptive, conclusive, oral testimony, documentary and real evidence.
The Trial Process
In ancient Rome, the adversarial system was created with the view to fair trial, impartial tribunal, to give a chance to parties to argue their case without prejudice, to be argued against(confronted) and to confront any party that is not on their side.
They were of the idea this way all factors from the parties in relation to the case would be experienced; that is the evidence, facts and demeanour: reactions, expressions and mannerisms.
This way credibility of each parties account would be used against each other to arrive at a decision.[3] That is why the general rule against hearsay is that it is inadmissible in the court of law first because:
- It is not the best evidence
- It was not on oath, and
- mainly in relation to demeanour and credibility the opportunity to assess the “original” maker of the statement is lost
In a trial process, a lawyer considers the perception, memory and narration in evaluating the testimonyof a witness. Therefore a witness is encouraged to do his best in respect of perception, memory and narration. He is required to testify under oath, in the personal presence of the trier of fact and subject to cross examination.[4]
For that reason a lawyer may rely on testimony evidence which is defined as the oral statement of a witness made on oath in open court and offered as evidence of the truth of that which is asserted and conclusive evidence. Section 63 of the Evidence Act states that oral evidence must be direct evidence and only relate to facts of which the witness claims to have personal knowledge or firsthand knowledge.[5]
On the other hand, a lawyer may not rely on hearsay evidence because it is testimony repeated in court by a person other than the one who perceived it. It is generally inadmissible in court because it is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.[6]
We realise therefore that in addition to the evidence presented in the court of law, demeanor is important as it adds to or reduces the credibility of the evidence.
Lord Bingham describes demeanour as the sum of awitness’s ‘conduct, manner, bearing, behaviour, delivery and inflexion’. In short, anything which characterises his mode of giving evidence but does not appear in a transcript of what he actually said.
In Mendy’s case(1976) 64 Cr. App. R. 4 CA[7] The defendant was charged with assault. During her trial the defendant’s husband was seen taking notes when a police officer was taking notes with an unidentified man, when a police officer was giving evidence about the assault. The inference was that it was an act aimed at priming the husband to give biased evidence in favour of his wife.
The behavior of the witness in this case was part of his demeanour and was used to question his credibility.
Demeanorof the Witness at Trial
Under our Common Law system of Litigation, the Trier of facts uses the witness’s demeanour to determine the truth of the testimony.
Non- verbal communication from persons involved in a trial often cements whether a person is accepted as trustworthy. Demeanour, Expressions, Mannerisms and tone all help the Trier relate to a witness. Consistency, in terms of credibility and reliability is also important. Confidence and cooperation with opposing counsel may give the impression that the information coming from the witness is quite reliable, because he has nothing to hide.
Additionally, Major changes in a witness’s demeanour form direct examination to cross examination often prove damaging to reliability, showing inconsistency and reducing the credibility of witness’s testimony.
The demeanor of the witnesses has been believed to furnish trier and opponent with valuable clues and the cross-examinations are effective in bringing out any imperfections of perceptions, memory and narration.
Often the sincerity of the witnesses may be observed from the way the witness sounds or looks. For instance judges and juries look to the tone of voice, the so called ironic smile, the act of swallowing prior to responding, the nervous twitch of the eyebrows, in attempting to evaluate the credibility of a witness. No authority is required to support that the most difficult task, the trier of facts are confronted with, is the basis of evaluation of credibility on basis of demeanour.[8]
In Laurentide Motels-v-Beaport,[9] triers of fact are asked to consider ‘’the movements, glances, hesitations, trembling, blushing, surprise or bravado’’ of witnesses.
However demeanor evidence cannot entirely be relied upon as it has some limitations:
- It assumes that there is a normal range of reactions for stressful situations that is applicable to all persons.
- It assumes that outward appearance accurately reflects on individual’s state of mind or emotional state.
This notion is illustrated in the case ofR v M.T (2004) OJ no. 4366, where Doherty J.A. recognized that although demeanor evidence is routinely admitted in criminal proceedings, its probative value is in many circumstances more apparent than real. In this case the M.T did not appear emotional at his baby’s funeral. The physician who had a great deal of experience of observing parents who brought their sick children to hospital, made observations on M.T but no application was made to exclude the evidence as being prejudicial than probative.
The court held that the demeanor evidence should not have been admitted as there was no norm against which M.T’s conduct could be meaningfully tested.
J.A Doherty concluded that the evidence lacked probative value and that outward appearances at a funeral home, offer no reliable barometer of one’s grief.
In the case of Faryna-v- Chorny[10], O. Halloran J.A, speaking on behalf of British Columbia Court of Appeal, the court cautioned against the quick resort to demeanour as the foundation for factual conclusions.
In Brethour-v-Law Society of B.C[11]O.Halloran J.A said, the credibility of interested witness, particularly in cases of conflict of evidence, must reasonably be subjected to an examination of consistency of their stories with the probabilities that surround the currently existing conditions, in short the real test of the truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and under those conditions. A court of Appeal must be satisfied that the finding of credibility in the tribunal of first instance is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.
In R v Parkin (2004), demeanor evidence was admitted as the evidence of distress was within the structure of the case. The defendants’ counsel was however objecting to the admission of the complainant’s distress when questioned by a woman police officer and the trial judge’s failure to warn that distress may be feigned.
In R-v-Davidson[12] it was expressly pointed out that the mere disbelief of an accused’s evidence is not tantamount to the inference the accused lied.
In R-v-N.K.D[13] His Lordship made plain, ‘’as the trier of fact, I endeavoured to pay close attention to the principal witnesses during their testimony. In the end result, however, my observation of the demeanour of the witnesses was unhelpful in determining the issues of guilt or innocence.
Having considered the shortcomings of demeanour evidence, the court opined that ‘’In evaluating the testimony of a complainant a number of factors are worthy of consideration including the internal consistency of her evidence, the logic and the common sense of thetestimony in terms of the circumstances described, the consistency of the complainant’s evidence against the standard prior statements made by her and against the defence evidence and the exhibits filed.
Generally it is recognised that discrepancies in a witness testimony, in particular when compared to prior statements of that witness out of court, may well be indicative of a truthful witness, one who has not provided a scripted and rehearsed account, but rather one who suffers from certain human frailties, for example confusion from the stress of being a witness, or a dulled memory or other causes that can sufficiently affect the witness credibility and reliability.
Demeanor of the Witness during aPolice Interrogation.
[14]Demeanor evidence obtained during police investigations is admissible in a court of law only when the accused has been informed of her Miranda rights. These rights arose from the famous case ofMiranda v Arizona.Miranda rights is the requirement set by the Supreme Court of the United States of America that prior to the time of arrest and any interrogation of a person suspected of a crime, she must be told, that she has the right to remain silent, right to legal counsel and the right to be told, that anything she says can be used in a court of law against her. These rights are provided in the Bill of rights article 49 in the Kenya 2010 Constitution.
[15]In the case of Miranda v Arizona,The defendant Mr Miranda an immigrant, was arrested for kidnapping and rape. Although the officers did not notify Mr Miranda of his rights, he signed a confession after two hours of interrogation which included a statement that he was aware of his rights. The defendant moved to dismiss the signed document.[16]
The court held that both inculpatory and exculpatory statements made in response to an interrogation by a defendant in police custody will only be admissible at trial, only if the prosecution can show the defendant was informed of the right against self-incrimination prior to questioning by the police. This case has been a land mark case and used as precedent on so many other cases on the basis of admission of demeanour evidence obtained during police investigations and interrogations.
In the case of Iowa v Decker[17]The supreme court of iowa ruled that a police interrogation videotape that had initially been ruled inadmissible, to be admitted for demeanour evidence only.
In this case, Amy McNeal was dating Mr. Edward Decker. In 2004 when the relationship had difficulties, M/s McNeal ended it permanently. She tried obtaining a no-contact order from the local authorities but failed. One day as she returned home, she noticed the back door was open. Decker appeared and attacked her by hitting her with a hammer on the head and stabbed her with a knife on her chest saying she ruined his life. She tried dialling the police but he choked her and only left after she promised not to contact the police.Decker later turned himself into the police who arrested him for attempted murder. He was interrogated and informed of his Miranda rights.The interrogator verbally informed him of these rights and gave him a document to sign that he understood anything he would say would be used against him in a court of law, but he refused to sign saying he cannot read.At trial he entered a plea of not guilty and pleaded the defencesof insanity and diminished capacity.He moved to suppress video statements made during the interrogation and Judge Douglas granted this motion. The state offered the tape saying it should be allowed to demonstrate his demeanour shortly after the incident given his insanity defence. The district court admitted it and he was convicted of attempted murder, wilful injury and burglary. He was sentenced to 25 years in jail.
Remarks made innocently by one or more people in describing an incident might expose some hidden conspiracy
Parties to a case or witnesses while describing an incident may make similar statements that may lead the court to conclude that there is a hidden conspiracy or prove a fact in issue. Such remarks albeit made innocently may act as corroborating evidence, and accordingly extinguish doubt as to the existence or non existence of a fact in issue in the minds of the trier of facts.
The two cases below demonstrate this view:
In Mohammed SaedAkrabi v R, the appellant had been accused of indecent assault on two different sets of boys. It was alleged that the head teacher (appellant) was in a habit of manipulating the boys’ hands to rub his penis. This statement was independently made by the two sets of boys.
The magistrate’s court held that the accused was guilty of the offence. On appeal it was held that corroboration of the first set of boys could be used on the second set of boys.
In The Makin case the prisoners had been convicted of the wilful murder of an infant child which evidence showed they had received from its mother, to adopt it, upon payment of a sum inadequate for its support.
Heldevidence that several other infants had been received by the Makin’s for adoption upon payment of a sum, and whose bodies had been found buried in a similar manner in the gardens of the several houses occupied by the prisoners was relevant to the issue which had been tried by the jury. This was gathered from the testimonies of the mother and the police officers at the scene of discovering the bodies.[18]
Conclusion
From the foregoing,we observe that trials have been in use for a long time because they help identify the weakness and strength in the plaintiff and defense arguments by giving the trier of fact the opportunity to establish their credibilityby way of appearance of the witness and narration.
In the absence of trials, courts may have had torely exclusively on the evidence garnered during interrogation, which may be simply corrupted.