Exploring the Various Aspects of Law Evidence Coursework

Testimonial Privilege

Privileged information is knowledge confidentially passed between two individuals. According to Frieder (2000), testimonial privileges refer to the individual’s legal rights that allow a person not to testify or even bar another from testifying on confidential matters (p. 186). This may concern the content of a declaration made by the privileged individual outside the trial or the information he/she knows but is not willing to reveal.

Spousal Privilege

It is made up of two independent privileges: the marital confidences privilege and the spousal testimonial privilege (Frieder, 2000, p. 188). Marital confidences privilege aims at fostering marital harmony and protecting individuals from condemnation by their spouses. A court may direct a spouse to testify against another on the contents of confidential information acquired during marriage. The privilege is relevant only if there were no third party during the communication or if the information was meant to be confidential (Garland, 2010, p. 156).

Spousal testimonial privilege is applied in preventing persons in a criminal case from summoning the spouse to the defendant to give evidence against them concerning any topic. The witness’ spouse can decline to testify against the defendant spouse although the defendant may not prevent the spouse from testifying against them (Frieder, 2000, p. 189). However, in cases of divorce or child custody, the privilege may be invoked.

1. Professional Privilege. This privilege aims to protect one’s ability to access the justice system without fear of disclosure and future prejudice. This is a client privilege that protects all discussions between a legal advisor and his client from being revealed without the client’s consent.
2. The Attorney Client Privilege

This privilege bars an attorney from sharing any information relayed in confidence by a client or potential client even after the client’s death. For the attorney to effectively play his role, it is necessary that the client reveals everything pertaining to the case with the assurance that it will not be relayed elsewhere (Frieder, 2000, p. 167). However, exceptions are made when a client intends to commit a felony through their confession.

Executive Privilege

While executive privilege is not clearly stipulated in the constitution, the Supreme Court, through a ruling on the concept of separation of powers, accords the US President and some members of the executive the privilege to rebuff some subpoenas and other confrontations by other branches of government (Garland, 2011, p. 165). However, the privilege can be invoked, especially when it is established that the executive’s indiscretion will interfere with security.

Child-Parent Privilege

This is a legal privilege, which unfortunately does not exist in the United States because the relationship between a child and parent is not privileged. In fact, a parent can be compelled to reveal confidential information about their child i.e. the Monica Lewinsky’s case.

Physician-Patient Privilege

This is a legal conception either by statute or case law pertaining to medical confidentiality in which what transpires between a doctor and a patient during the course of treatment cannot be used against the patient in civil or criminal courts unless when the patient intends to commit a crime (Frieder, 2000, p. 161).

Public Interests and Privileged Relationships

Privileges are primarily formulated to communicate public policy and interests and privilege relationships exist only because society dictates so. While a tribunal deserves every party’s factual, honest testimonies, testimonial privileges prevent the tribunal from accessing confidential information on the premise that recognizing these privileges is far more important than divulging the facts at a trial (Garland, 2011, p. 214). A spouse for instance may not be called upon to testify against another as it this can subvert their marriage and therefore it could be waived on grounds that it is better to preserve a marriage. However, some circumstances justify a breach of confidentiality through weighing the client’s interests and the proper course of justice.

Lay Witnesses

According to Nemeth (2011), a witness is an individual who comes forth to testify under oath before a tribunal or in a case (p. 171). They could be lay or expert witnesses, who mainly consist of persons with first-hand information on issues pertaining to the case. Their testimony however has to pass through the rules of evidence. A lay witness is an ordinary person who may have personally heard, seen, felt or smelt something pertaining to the case (Nemeth, 2011, p. 171). The witness testifies on the basis of personal life experience and not as a professional or expert witness.

Rules of evidence permit lay witnesses to sometimes give their opinion on cases as long as the opinion is reflectively based on the observation of the witness and is instrumental to either a precise comprehension of his testimony or towards ascertaining a fact in question (Nemeth, 2011, p. 172). However, it should never be based on knowledge beyond an ordinary man’s understanding such as scientific, technical or specialized knowledge. Sometimes courts admit lay witnesses to give specialized opinions as long as the testimony is within the rules.

Previously, the rule governing lay witness opinion, Rule 701, sanctioned lay witnesses who may not meet the criteria of experts to provide expert testimony grounded on specialized knowledge for as long as the other necessities of the rule are adhered to. However, from December 1, 2000, the rule was revised to keep out admissibility if the testimony is not within the limits of the rule administering expert witness statements (Nemeth, 2011, p. 186). This way, parties can be prohibited from going around the expert disclosure and discovery process.

Hearsay Evidence

Hearsay is unofficial, indirect testimony in a court proceeding. Often, the witness lacks the first-hand knowledge of the postulations but is only aware of it from another individual. According to the Federal Rules of Evidence, hearsay refers to statements aside from the ones claimed by the declarant as testimony during a trial or hearing (Nemeth, 2011, p. 193). The fundamental justification for hearsay exceptions is the proposition that circumstances surrounding the statements make them dependable enough to be heard as testimony i.e. descriptions made by a patient to a doctor during medical treatment.

Exceptions to the Hearsay Rule

Hearsay evidence is prohibited in the United States with the intention of preventing individuals from applying other people’s statements as testimony. However, there are few exceptions and exemptions to the rule that make hearsay admissible in a court of law. According to (Ingram, 2012, p. 152), these include:

1. Excited utterances related to unexpected happenings or statements made under the pressure of excitement resulting from the event in question.
2. Present sense impressions or statements declaring a declarant’s perception of a situation during the time of the statement being made though not necessarily in reaction to a startling event.
3. Declaration of present state of mind will be admissible to show that the declarant indeed felt that way at that time. They are commonly employed as circumstantial evidence of preceding acts done by the declarant.
4. Prior inconsistent statements are exemptions made where earlier statements made by a witness, whether under oath or not, are used as considerable evidence as long as the declarant ratified the statement.
5. Dying declarations and other statements made under conviction of looming death. These are often exempted during criminal cases like homicides.
6. Declarations against interest or statements that would implicate the declarant to accountability in such a way that it is presumed that the declarant would only say such only if it were fact. Thus it is assumed that an individual would lie to serve his own interest and as such, a statement contrary to his interests can only be mad if it is indeed true.

These exceptions however do not dictate that the trier acknowledges the hearsay statements as truth. It simply means that the trier will listen and be free to deliberate on the statements when considering the verdict of a case (Nemeth, 2011, p. 315).

Witness Competence

According to rule 601, every individual qualifies to be a witness unless otherwise dictated (Ingram, 2011, p.261). Similarly, a witness may pass the competence tests yet be denied the chance to testify on incompetent evidence such as hearsay evidence or evidence that has been acquired illegally. Legally, for a witness to qualify to testify, several factors have to be considered. It is required that they understand the notion of truth and falsehoods, acknowledge the significance of the pledge to relate the truth and comprehend the plausible repercussions of lying under oath. One should also have sufficient recollection and reasoning capacity and it is ascertained that the witness is basically able to perceive, remember, and relay the information in court (Nemeth, 2011, p. 189).

Age and witness competence

Sometimes legal issues emerge concerning witness competence especially when children are taken on as witnesses; the controversial question of the competence of the child witness. This is because children are susceptible to suggestion and ordinary imaginations (Ingram, 2011, p. 268). However, children are assumed competent to testify in federal court and in quite a number of state courts as long as they meet the requirements of witness competence unless and until legal challenges concerning their competence are raised. Thus, age alone is not sufficient to challenge their competence unless there are other reasonable causes to do so (Ingram, 2011, p. 269).

References

Frieder, P. (2000). Privileged communications. New York, NY: Bantam Books.

Garland, N. (2011). Criminal evidence (6^th ed.). New York, NY: McGraw Hill.

Ingram, J. L. (2011) Criminal Evidence: John C. Klotter justice administration legal series. Amsterdam: Elsevier.

Nemeth, C. P. (2011). Law and evidence: A Primer for criminal justice, criminology, law and legal studies (2^nd ed.). Sadbury, MA: Jones and Barnett Learning.