11.07.2019 in Law

Legal Criminal Evidence Essay


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Testimonial Privileges that are recognized in the U.S

In the United States, testimonial privilege is ruled by the state laws and thus differs from one State to another (Baum, 2009). Theses privileges are:

  • The attorney client privilege
  • The account client privilege
  • Privilege against self incrimination
  • Spousal privileges
  • The clergy communication privileges
  • Journalists privilege 

The attorney client privilege

Walkowiak (2008) argues because of courts recognition of client a privilege, a lawyer cannot be called to bear witness in trial unless he becomes a party in the judicial proceeding as this privilege serve as basis for important and confidential communication between attorney and the client.

The account client privilege

This privilege ensures that privacy of financial and other confidential information exchanged between a client and his accountant is protected thus used in critical financial sectors. This privilege is categorized into non-evidentiary privileges and evidentiary privileges

Privilege against self-incrimination

This privilege forbids the government from pushing someone into giving testimonial evidence in court that will accuse him or use it against him in later criminal case.  As a result one can refuse to give evidence in the court of law and confessions, statements, or admissions demanded from anyone breaching this privilege are inadmissible in courts.

Spousal privileges

According to Wendel (2010), this is legal concept which is accountable in defending the right of confidentiality between married persons. Thus a forced testimony of one partner against other is forbid by Spousal privileges.

The clergy communication privilege

This privilege it is associated with conversation between a religious adviser and his advisee and forbids words from discussion of an individual with his religious clergy to be used as evidence in court (Hopkins, 2008).

Journalist’s privilege

Journalist’s privilege refers to a legal concept which appropriates for journalists to restrain the source of their news as confidential in case they wish so and thus enhance for “privacy” and “security” of the source (Packard, 2010, p. 118)


Kirst-Ashman, K., & Hull (2008) define a Lay witness as a witness, who is unable to testify as an expert witness in the court and hence prevented from bearing witness in the form of opinion. However, lay witnesses may be permitted to testify if:

  • Lay witness is bearing testimony testify that is rationally established on perception of the witness.
  • His/her testimonial is assistive or good enough to clear facts in the issue.
  • Bond cannot be issued in a case.
  • The case entails the confinement of material witness.
  • The testimony of lay witness need not to have the scope of expert and
  • If the testimony is restricted to general terms like weight, height etc.
  • Admissibility of testimony made by the lay witness

The testimony made by a lay witness is permissible in issues that it seems useful to the court or if it is rationally based on perception of the witness as mentioned above.

However, a Councilor has to arouse such replies from witnesses which will hint that their opinions are based on real observations. The testimony of the lay witness is also admissible when a lay witness is permitted as character witness for instance when asked about the cognitive state of other witness (Kohn, 2001).  Under the Federal Rule of Evidence 704 and Maryland Rule 5-704, a lay witness is permitted to testify even when his/her  opinion is not centered on ultimate issue of the case, but the admissibility here remains  debatable.


Concept of Hearsay and the Underlying rationale for the hearsay rule

Kirst-Ashman and Hull (2008) define Hearsay as “to testimony about a statement made outside the courtroom” (p. 453). Such statements are not directly established on what witness saw or heard, but on what somebody else saw or heard and passes it to others. In this regard, crucial evidence is distorted.

There are certain rules concerning hearsay one such rule CRE 801 state that, a statement other than one produced by witness while making testimony at the judicial hearing provides the evidence to demonstrate the truth of the asserted matter.

There are different types of hearsays few of them are mentioned below

  • Accretion centered hearsay: is centered on proving truth in matter or critical fact in the judicial hearing.
  • Declarant centered hearsay: this type of hearsay is wholly dependent on credibleness of the witness.

Some exceptions for the hearsay include.

Six exceptions to the hearsay rule

  • dying declarations
  • exited and spontaneous utterances
  • RES GESTAE or Present sense impression
  • Confessions and declarations against ones interest.
  • Business and public records
  • Family history or pedigree    

Dying declarations

This is the oldest exceptions to the hearsay rule and it puts focus on solemnity that surrounds the act of dying as dying impels truthful ness. This conception has been debated for very long and is limited only in murder hearings in some states, while some states look for actual death as mere belief of death is not good enough.

Exited and spontaneous utterances

This is a statement made under the influence of surprising event or condition where the declarant was under the influence of that event.  This exception has lot to do with mentalist psychology and utilitarian philosophy which is useful in judicial hearing. According to law some kind of shock can produce spontaneous utterances and it takes a while to lie. This exception comprise of cases where statements are taken when a person is in frightened or pain or bleeding due to rape, domestic violence or other similar crimes.

RES GESTAE or Present sense impression

This exception allows parties to consent or admit that whatever that was said and done during the course of incident or transaction which is associated with trial. Evidence under this exemption can be from hearsay or may not be hearsay because everything depends on condition and its relation with trial at hand. 

Confessions and declarations against ones interest.

This exemption is defined as a long term common law exception, this is approximately similar to police inquiries and how they approach their investigation to get soft confessions. Declaration against interest is of two types

  • Declaration against monetary interest  and
  • Declaration against penal interest. 

Business and public records:

According to law, various organizations and institutes produce records for some important reasons and it is in their vested interest to verify that the records are accurate. These records can be accepted in evidences but on conditions that.

  • It should be done under the business record exceptions or
  • Under awkward authentication rule of evidence related with documentary.

Family history or pedigree 

This is reasonably an old exception that entails family information such as decent, marriage and relationship. The Judiciary is not concerned in every single relationship involving ones family but it is concerned in hearsay statements that might be incorporated in your family bible and may be recorded on the tomb stone.


Evaluation of witness competency

Factors such as disability, age, significance or insignificance event, psychological factors, lack of ideal conditions and physical condition of the witness need to be considered before settling on the admissibility of the testimony of the witness

The consciousness of witness throughout the time of an event is also crucial as well as the credibility of witness as one can be termed as credible or competent if one is under the effect of alcohol or drugs. Witness perceived to be having individual interest or any bias or prejudice cannot be regarded as competent witness (Nemeth, 2010)

The physical or mental limitations of the witness also affect the competency level of the witness as this can hamper the witness ability in retrieving or remembering past events affects. Other physical condition like visibility and lighting can affect the competency of the witness. Reputation of the witness does have impact on the witness competency level.

Do these factors changed on the age of the witness?

Individuals are often considered as competent until the court pronounces him/her to be incompetent.  A factor like age also matters in determining the competency level and may change with time. For instance, in a case of young child, the age of the child can hinder the child from testifying as children can easily be tormented and made manipulated by the elders.

While there is a fixed age regarding competency of the witness, this hinges on the situation and reflection of the judiciary. In case of extreme age, questions may be raised concerning the competency of the witness due to the witness’s physical and mental factors such as mental limitations in remembering, visibility and recalling which can reduce the competency level of a witness. In cases where the witness competency is at question, the case may take some time as the court often seeks to carry out some tests to assess physical and mental competency of the witness. From above observations it can be said that factors used to evaluate competency of the witness vary according to age of the witness (McClenne, 2010).

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