View Full Version : A question about evidence in a Common Law court

01-24-2018, 03:58 AM
Hello there, ladies and gentlemen!
I want to apologise in advance for, what I assume, are some very inane questions about the treatment of certain pieces of evidence in Common Law (specifically English Law, though information about other countries are most welcome), which I do not know terribly well, as I'm Austrian:

I'm currently writing a story that features a couple of scene from a trial for a murder that happened many decades ago:
Here, the prosecutor tries to enter an exhibit which, as it turns out, is actually a written compilation of other people's eyewitness accounts of that particular crime. It's very detailed and it features some very damning evidence that points to the defendant's culpability, but the people that have issued the testimonies are all already dead, and therefore cannot be brought in for a live examination.

- How would such a piece of evidence be treated by the judge(s) and by the defence?

- Under what circumstances might it be considered more than just worthless hearsay (perhaps concerning the person who compiled it in the first place)?

- What can the prosecutor do to lend it more credibility?

- Lastly, would the defence attorney get the chance in the courtroom to inquire more about that piece of evidence?
- - Will he also get the chance to try and discredit it (in the courtroom)?

As always, thanks in advance!

01-24-2018, 07:10 AM

Interesting question. Specific answers are going to depend on which common law country you're in. In the US, for example, a written account like the one you describe would be objectionable as hearsay if offered to establish the truth of the matter asserted. Possibly more than one level of hearsay (if, for example, the written account itself contains hearsay).

Hearsay can be admissible if it fits within certain pre-defined exceptions. For example, there is an "ancient document" exception that could apply in your case, but the authenticity of the document would have to be established. There's also an exception for hearsay that is a recording of someone's present-sense impression. But there'd have to be an exception to the general rule against admitting hearsay established for each level of hearsay (if there's hearsay within the hearsay).

The defense would absolutely have the right not only to object to the document being admitted, but to attack it's credibility and accuracy.

Practically speaking, most of the time the admissibility of that document would be determined in advance of the trial in the context of a motion in limine.

01-24-2018, 02:33 PM
Nice, thanks!

Do you know if there any similar "ancient document" exceptions and Motions in Limine in English Law as well? Could an "ancient document" exception be used by analogy?

Also, how will the defence get the chance to 'confront' the prosecution about piece of evidence in the courtroom? Who will they be able to turn to to pry out more information on the document?

01-24-2018, 06:38 PM
Except that an ancient document would most likely not apply in a compilation of other documentation, in this case, the eyewitnesses. And corroboration of this kind of document would be really, really hard to come up with. The ancient document exception would usually be more like a historical letter or document verified by a known authority. A will that describes the meets and bounds of property from several generations ago, for example.

Set that aside and any attorney worth their pay can get eyewitness testimony debunked, especially when the witness no longer exists. So, what do you really need for the story? If it's something along these lines, have the prosecutor discover the transcripts from the investigation, or some other documentation that is easier to provide the provenance for. A good defense attorney will still get it tossed, but plenty of people get represented by less-skilled attorneys.


01-24-2018, 07:55 PM
You might find the Federal Rules of Evidence helpful. https://www.law.cornell.edu/rules/fre

01-24-2018, 10:28 PM
If you are writing for laws in the US, I have found Kate Wilhelm's "Barbara Holloway" series to be an excellent lawyer procedural series that goes into details about getting evidence in, what arguments are used, how the judges react, etc.

01-24-2018, 11:27 PM
Thanks so much, all of you.

That said, I was actually thinking about setting my story in a Commonwealth country, probably Britain itself.

But am I right to assume that the laws regarding evidence are, in essence, similar in all Common law states?
I did hear that a lot of case law is cited all over the anglosphere, regardless of nationality, so there must be something of a common approach.

Siri Kirpal
01-25-2018, 03:18 AM
Sat Nam! (Literally "Truth Name"--a Sikh greeting)

You might want to edit your first post to indicate which country/countries you're looking at. British rules and American rules have evolved differently in enough cases that you don't want to generalize.


Siri Kirpal

01-25-2018, 05:04 AM
Will do!

01-25-2018, 06:36 AM
I've been a trial lawyer for 15 years in the U.S., so I can tell you what's plausible and not here. As to the UK or other common law countries--a lot of the concepts underlying evidentiary rules are similar, like the idea that documents need to be authentic and have sufficient indicia of reliability, but the evidentiary rules themselves are significantly different.

As to the ancient document exception, I haven't used it in court since probably moot court in law school, but I believe that any document older than 20 years qualifies. The trick isn't the age--usually a black-and-white-issue--it's authenticating that the document is what it purports to be (in this case, an actual collection of the written recollections of the now-deceased witnesses listed).

01-25-2018, 07:27 AM
I'm pretty sure it would be hearsay and only admissible under limited circumstances but there are better posts on that here.

Here's my story for what it's worth:

My son's father trying to get out of child support claimed he didn't make any money. He was a musician and had under the table income.

So I copied all the news ads of the band's gigs. The judge said it was inadmissible because it was hearsay.

Fine! I turned them all over to the IRS instead and they did act on them. :tongue

I didn't bother going back to court but I could have given he'd have to admit to the income since it was now on his tax returns. Instead the judge ordered he had to provide medical insurance and that was worth a few hundred dollars a month so that was sufficient.

01-25-2018, 11:55 AM
Here, the prosecutor tries to enter an exhibit which, as it turns out, is actually a written compilation of other people's eyewitness accounts of that particular crime. It's very detailed and it features some very damning evidence that points to the defendant's culpability, but the people that have issued the testimonies are all already dead, and therefore cannot be brought in for a live examination.
IANAL, but, what might affect the acceptance of the exhibit is: who compiled it? A zealous officer making careful notes at the time? A reporter looking for a really exciting story? A local historian recording local gossip some time after the fact?
If all the eyewitnesses are dead, it's going to be hard to figure out what part of the detailed, damning bits are factual, exaggerated, or outright lies.
Look how often 'eyewitness testimony' is either inaccurate or varies widely between eyewitnesses of the same event. And that's why it's not taken at face-value.

01-25-2018, 06:24 PM
But am I right to assume that the laws regarding evidence are, in essence, similar in all Common law states?

Nope. While based in a similar original law, Britain doesn't have the Constitutional guarantees of the US and most common law has evolved with case law. That and most laws regarding evidence are now procedures determined by courts over the years.

Figure out what your story needs then figure out how to make that happen based on your story's settings.


01-25-2018, 10:13 PM
OK for England (Please note there are variations of the law - mostly slight, but some large, between England, Northern Ireland, Scotland and Wales) then you might find the following helpful: http://www.justice.gov.uk/courts/procedure-rules/criminal/rulesmenu-2015 Basically unless you have some way to prove that the document is really is eyewitness accounts then it is unlikely to even get into court - the defense barrister (those are the people who appear in court over here - although some solicitors can - it is complicated!) would rip the document to shreds before it even gets into court through the process of disclosure (In America I think it is called discovery). Hope that helps

01-26-2018, 03:46 AM
Short answer it won't be admitted as hearsay.

But --

We've got a murder that occurred years before. Witness' memories are going to be poor no matter what. It's quickly going to become very complicated. I know an attorney who was involved in what we call a "cold case" in the US. Hundreds of hours of research into what was admissible and what wasn't. For example, the medical examiner who had done the autopsy was dead. Does the autopsy come in or not? I believe that was a three hour hearing, with a finding that an autopsy is a public record and comes in despite being hearsay under that exception.

In other words, you're not going to get a good answer on an online forum. You're going to have to go into case law where this issue is discussed. But here's a real life cold case to look at -- https://en.wikipedia.org/wiki/Disappearance_of_Etan_Patz

There are a lot of cold cases that have gone to trial. You need to start with them to see how difficult these issues are to present.

Jim Clark-Dawe

01-27-2018, 04:21 PM
Thanks again, everyone!
I think I can make this work now!

01-27-2018, 06:51 PM
One way it would be admissible is if there was a verifiable chain of custody of the document from it's creation.


01-28-2018, 03:05 PM
Hi I'm no expert , and you can often find exceptions . But the judge in a English court actuly is not there to make judgements, that is the role of the jury . The judge is there as a kind of umpire. As I understand it , written evidence can be read out . The police will often read from a note book . But the person giving the evidence, must actuly be in court and available for cross examination . So ,evidence written or otherwise , from the dead , is not usable evidence in a court of law ,but it is sometimes used in an inquest .