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Previous Consistent Statements
Published online by Cambridge University Press: 16 January 2009
Extract
No expert long range forecast is needed to predict that in the near future a wind of change of a velocity and a turbulence hitherto unknown is going to sweep away many common law principles of the law of evidence regarded in the past as fundamental. In civil proceedings, the hurricane is upon us, with the thirteenth report of the Law Reform Committee, and the Civil Evidence Bill 1967, virtually providing for the abolition of the rule against first-hand hearsay and the rule against narrative, and substituting a wide discretion in the court. All the signs are that in a short time analogous reforms for criminal proceedings will be announced, and already previous statements have been rendered widely admissible by the Criminal Justice Act 1967. The object of this article is to look at the common law relating to the rule against narrative in criminal proceedings, as it is applied in England and in the United States, and to make a few comments on the procedure introduced by section 9 of the Criminal Justice Act 1967.
The rule against narrative is sometimes called the rule against self-corroboration. This is misleading, in that a witness can never corroborate himself where corroboration is required by any rule of law or practice. In the thirteenth report, the first description is said to be a misnomer, but a helpful summary of the rule is given: “what the witness himself said outside the witness-box is not evidence.” Wills describes the rule in this way: “… the witness may not repeat to the Court his own previous narratives or statements concerning the relevant facts made to other persons out of Court; when he is in the witness-box he must take his mind back, directly so to speak, to the facts he is called to prove, and must give to the Court his present recollection of those facts.”
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References
1 Cmnd. 2964 (1966).
2 Ibid. p. 3, para. 5.
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8 [1956] C.L.J. 199, [1957] C.L.J. 55.
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15 [1914] A.C. 545, 559. Simon, Attorney-General, for the Crown, stated a similar principle in argument: 10 Cr.App.R. 141, 147.
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56 48 Pa. 396, 401.
57 64 N.C. 594, 595.
58 18 So. 2d 805—Court of Appeals, Alabama.
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60 (1927) 112 So. 761, 762—S.C., Alabama.
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62 In this it resembles Johnson v. State, n. 47, supra, and R. v. Abraham, n. 48. supra.
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64 44 So. 715, 716.
65 Co.Litt. 6b.
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67 Ibid.
68 R. v. Marshall (1830) 1 Lew. 76.
69 n. 51, p. 82, infra.
70 The Times, 8 March 1856.
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77a Ibid. pp. 244–245, Sir Forrest Fulton's letter to The Times pp. 276–278, examination of prosecuting counsel by the Committee of Inquiry; pp. 256–257, report of the Committee itself.
77b As to the admission of O.M.'s prior description of the trickster to the police, see, however, nn. 97, 98, p. 77, infra.
78 Cmd. 3297 (1929), para. 128.
79 22 S.R.(N.S.W.) 427, 430.
80 Op. cit., Vol. IV, para. 1130, p. 208. Cited and approved in State v. McSloy (1953) 261 P. 2d 663, 668—S.C. MontanaGoogle Scholar; People v. Gould (1960) 354 P. 2d. 865, 867—S.C. California. Also perGoogle ScholarParke, J. (diss.) in Blake v. State (1929) 145 A. 185, 190Google Scholar, and per Learned, Hand J. in Di Carlo v. U.S. (1925) 6 F. 2d 364, 366.Google Scholar Another reason why the first identification is to be preferred is that identification parade procedure is rigidly controlled, while in court there are no safeguards. It has been suggested that if a witness failed to identify at a parade, he should not be permitted to identify in court: (1968) 112 S.J. 21.
81 (1912) 8 Cr.App.R. 84.
82 (1910) 5 Cr.App.R. 135, 142–143.
83 [1961] Crim.L.R. 541.
84 (1917) 12 Cr.App.R. 247.
85 (1924) 18 Cr.App.R. 145.
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90 R. v. Kingsland (1919) 14 Cr.App.R. 8.Google Scholar
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96 Comm. v. Fagan (1871) 108 Mass. 471; People v. Johnson (1891) 27 P. 663, and People v. McNamara (1892) 29 P. 953—California. It could be used in cross-examination by the defence: R. v. Clarke (1930) 22 Cr.App.R. 58, 65Google Scholar; or under s. 5, see R. v. Dickman, n. 96, p. 87, infra. If the identifier never gives evidence, it is inadmissible: Sparks v. R. [1964] A.C. 964.Google Scholar
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98 Ibid. p. 139. In his letter to The Times, the trial judge, Sir Forrest Fulton, described the evidence of O.M. as most dramatic. He mentions that she informed the police of the mark, and pointed it out, a mole (sic), to the jury: ibid. p. 243. As the evidence was dramatic, it presumably carried great weight with judge and jury. It is submitted that the judge ought not to have allowed O.M. to testify in chief to the previous description she gave to the police. Even after all the stir the case created, the apologia of the judge contains no indication that it occurred to him that the previous description might be inadmissible.
99 n. 80, supra. See a note in (1930) 70 A.L.R. 910, collating and summarising most of the cases to that date. Since then the trend in favour of admissibility has become more widespread.
1 (1944) 58 N.E. 2d 112, 113.
2 (1914) 106 N.E. 105.
3 (1925) 6 F. 2d 364, 366. The court assumed, merely for the sake of argument, that the rule in Jung Hing was correct, but created an exception to it.
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9 The presence of H. would not necessarily make the evidence admissible: nn. 47, 48, p. 82, infra.
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11 n. 37, p. 81, infra. The U.S. authorities are legion, and I may, of course, have selected an unrepresentative group of cases for study.
12 nn. 70, 71, supra. Even here it is not certain that the evidence has independent probative value, but Cross on balance thinks it has: op. cit., p. 467.
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46 s. 157, Indian Evidence Act. See n. 67, p. 96, infra. The previous statement is admissible under the section only to corroborate. If the witness states that he is no longer able to identify, there is nothing to corroborate: Nagina v. E., n. 42, p. 81, supra.
47 n. 76, p. 84, infra.
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51 164 A. 2d 708, 711.
52 [1914] A.C. 545.
53 S. 38, Children and Young Persons Act 1933 (23 & 24 Geo. 5, c. 12).
54 R. v. Whitehead [1929] 1 K.B. 99.Google Scholar Corroboration must be extraneous to the witness to be corroborated. There is no corroboration even if the prosecutrix repeats her story 25 times.
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58 [1914] A.C. at p. 563.
59 n. 24, p. 80, supra.
60 [1914] A.C. per Lord Moulton at p. 558, per Lord Reading at p. 563.
61 Ibid. p. 564.
62 (1929) 145 A. 185, per Bond C.J. (187), per Parke J. (190). See n. 28, p. 80, supra.
63 [1896] 2 Q.B. 167.
64 Ibid. at p. 177.
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69 nn. 12–14, p. 79, supra.
70 [1914] A.C. at p. 564.
71 Ibid, at p. 549.
72 Ibid, at p. 564, per Lords Moulton and Reading. The doctrine that judges have the power to exclude admissible evidence, if unduly prejudicial to the accused, was first adumbrated in this case: it was denied by Lord Halsbury arguendo: 10 Cr.App.R. at p. 149. His Lordship did not deliver any judgment.
73 Cross, op. cit., p. 435, citing R. v. Cox (1858) 1 F. & F. 90.
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77 Ibid, at p. 560.
78 n. 23, p. 68, n. 56, p. 83, supra.
79 12th ed. p. 493, para. 575.
80 (1910) 11 C.L.R. 400, 422. Hesitation is mentioned as a factor in State v. Worthington (1870) 64 N.C. 594, 596
81 n. 28, p. 80, n. 62, p. 83, supra.
82 145 A. 185, 189.
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87 (1852) 6 Cox 69. The prosecution also called two other witnesses, Capes and White. H. averred that he had made a statement previously to C., and had spoken with Walker in White's presence. Williams J. overruled the objection of defence counsel that neither H., C. nor White could prove these conversations, but confined the answer to Yes or No, as, he said, in the rape cases (74). Later counsel withdrew his objection, and White was permitted to repeat what Walker said to H. (75). It was quite innocuous, and shows the futility of the old complaint rule: if the jury had not been allowed to hear the details they might well have assumed that Walker uttered terrible threats to H.
88 (1855) 7 Cox 74.
89 Evidence, 10th ed. (1963), para. 1584.Google Scholar
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91 (1918) 2 Ir.R. 361.
92 Ibid. at p. 374.
93 Ibid. at p. 388.
94 n. 87, p. 86, supra. There is no reference to the recent fabrication exception whatever: it had probably not yet emerged. Jones v. D.P.P. [1962] A.C. 635, 675Google Scholar, is another sub silentio example.
95 Woodward v. Shea (1952) V.L.R. 313, 317Google Scholar, per Sholl J.
96 (1913) 8 Cr.App.R. 146. In R. v. Dickman, H., a prosecution witness, described a man he had seen on the train with the deceased on the day of the murder as wearing a fawn overcoat. In cross-examination, he was challenged for not referring to the overcoat before. He replied that he gave that description to the police on the day of the murder. He was then asked whether he said this before the magistrates. He replied that he was not asked: Notable British Trials, p. 50.
97 (1889) 24 L.R.Ir. 522.
98 Ibid. pp. 522–524.
99 Ibid. p. 543.
1 Ibid. p. 547.
2 Ibid. p. 532. O'Brien J. also thought that the statement in re-examination did not go too far: p. 558.
3 (1912) 97 N.E. 14, 15.
4 R. v. Neville, n. 87, Part II, supra, sub silentio; Flanagan v. Fahy, n. 91, p. 87, supra, per Dodd J. (376); per Ronan L.J. (390); R. v. Coll, n. 97, p. 87, supra, per Gibson J. (530).
5 n. 95, p. 87, supra.
6 Flanagan v. Fahy, n. 91, p. 87, supra, per Dodd J. (375), per O'Brien C. (383).
7 Per Dixon, C.J. in The Nominal Defendant v. Clements (1960) 104 C.L.R. 476, 479.Google Scholar Quoted in Cross, op. cit., p. 202.
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9 People v. Jung Hing (1914) 106 N.E. 105, 108.Google Scholar
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11 (1929) 145 A. 185, 188.
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14 I accept respectfully the view of Cross that no exception to the hearsay rule is involved. Even where consent is in issue, a complaint is not affirmative evidence of lack of consent: op. cit., p. 199.
15 R. v. Nicholas (1846) 2 C. & K. 246.
16 R. v. Megson (1840) 9 C. & P. 420.
17 R. v. Wink (1834) 6 C. & P. 397; R. v. Osborne (1842) C. & M. 622. In R. v. Walker (1839) 2 M. & R. 212, Parke B. seems to have received the name, perhaps because the only objection was to the particulars.
18 [1896] 2 Q.B. 167.
19 nn. 87, 90, p. 86, supra.
20 n. 24, p. 80, nn. 58, 59, p. 83, supra.
21 [1896] 2 Q.B. 167, 178.
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26 Berry v. B. (1898) 78 L.T. 688.
27 A judge in the division from 1883, and President 1891–1892.
28 Parke B. also expressed himself mystified in R. v. Walker, n. 17, p. 90, supra.
29 (1839) 2 Curt. 281, 292–294.
30 [1956] C.L.J. at p. 204, nn. 22–25.
31 10th ed., p. 166.
32 The witness to whom the wife complained was, of course, allowed to speak to injuries on the wife's person she observed. She could not repeat the wife's declarations “being made at some distance of time” after the infliction of the injuries: per Denning and Hodson L.JJ.: [1952] 1 T.L.R. at pp. 1526, 1528. Had the court regarded details as never admissible even of a prompt complaint, they would have said so, instead of indicating that it was the delay that was fatal.
33 Phipson criticises Berry v. Berry severely: op. cit., para. 357. Cross interprets the passage in Phipson as expressing the view that the case had been overruled, and agrees: op. cit., p. 198.
34 R. v. Camelleri [1922] 2 K.B. 122.Google Scholar
35 n. 67, p. 84, supra.
36 The Times, 6 June, 1898.
37 [1956] C.L.J. at p. 210.
38 [1923] 2 D.L.R. 379, 382–385, per Stuart J.A. In English law, a different view is now taken: Chan Wai-Keung v. R. [1967] A.C. 160—the question of admissibility is purely for the judge, though the question of weight is for the jury—a case on a confession, but the same principle would apply to a dying declarationGoogle Scholar.
39 Ibid. pp. 389, 390.
40 Ibid. p. 391.
41 Ibid. p. 386, per Stuart J.A., Hyndman J.A. concurred with him.
42 n. 46, p. 82, supra.
43 Ibid. p. 386.
44 Cross considers that the preponderance of authority is against extension to all crimes of violence: op. cit., p. 200.
45 Sibley (1904) 20 L.Q.R. 86–87, quoting Bracton.
46 n. 38, p. 92, supra.
47 n. 88, p. 99, nn. 91, 92, p. 100, infra.
48 n. 63, p. 73, supra. See also the three United States cases referred to in [1957] C.L.J. 65–66, n. 30, where one charged with murder was allowed to prove as part of the res gesta threats of personal violence made against him by the deceased, to determine who was the aggressor.
49 This is not assuming the question to be resolved by the jury, but merely deciding to admit the evidence for what it is worth.
50 S. 89.
51 S. 9 (4).
52 Ninth Report, Evidence, Cmnd. 3145 (1966), para. 7.Google Scholar
53 A Guide to Law and Practice under the Criminal Justice Act 1967, p. 32.
54 Ibid. p. 10.
55 Carlisle [1967] Crim.L.R. 613, 621.
56 Napley, op. cit., p. 4.
57 36 L.J.P.C. 51, 57. The C.C.A. sometimes consider that the second trial should take place before a different judge: R. v. Quinn & Bloom [1962] 2 Q.B. 245, 253.Google Scholar
58 Ibid. A substantial minority of the Law Reform Committee on Hearsay Evidence in Civil Proceedings “regard as particularly valuable oral evidence in answer to questions which are not leading questions”: para. 36, Thirteenth Report, Cmnd. 2964 (1966).
59 [1909] 2 K.B. 14.
60 R. v. Lawrence (1909) 25 T.L.R. 374.Google Scholar
61 R. v. Beere (1843) 2 M. & R. 472. In R. v. Ashe (1845) 1 Cox 150, the evidence was recapitulated by the witness, suggesting that he was examined de novo.
62 Notable British Trials, p. 166. Counsel for Rau objected that the twelfth juryman would not have seen the demeanour, but counsel for Monsson and Smith raised no objection. Professor Keeton, editor of this volume, makes no comment.
63 (1903) 67 J.P. 267, 268.
64 Criminal Justice Act 1965, s. 1. Under Criminal Justice Act 1925, s. 15, the number was 10.
65 [1909] 2 K.B. 14, 20.
66 (1869) 12 W.R. 3.
67 Act II of 1855, s. 31, re-enacted in s. 157, Indian Evidence Act, Act I of 1872.
68 See n. 46, p. 82, and n. 41, p. 92, supra.
69 12 W.R. 3, 4.
70 Amended by Magistrates’ Courts Act 1952, 6th Sched., and the Criminal Procedure (Attendance of Witnesses) Act 1965, 2nd Sched.
71 [1938] 3 All E.R. 130, 132.
72 R. v. Cook [1959] 2 Q.B. 340—Criminal Evidence Act 1898Google Scholar, s. 1 (f) (ii) (61 & 62 Vict. c. 36). R. v. Herron [1966] 2 All E.R. 26—Larceny Act 1916Google Scholar, s. 43 (1) (b) (6 & 7 Geo. 5, c. 50).
73 (1927) 29 Ll.L.R. 141, 153.
74 (1926) 25 Ll.L.R. at p. 535.
75 Ibid. at p. 543. The case of Dean supports Atkin L.J. A great many intelligent people firmly believed in Dean. He had an open, frank manner, bore a good character and possessed physical courage, yet attempted a cold-blooded murder: (1941) 57 L.Q.R. 85, 86, 111—Sir Carleton Allen.
76 In a speech in the H.L.: (1813) 25 Hansard Parl.Deb. 207.
77 Campbell, , Lives of the Chief Justices, Vol. 3, p. 211.Google Scholar
78 [1909] 2 K.B. at p. 21. Committal proceedings were concerned, and there Lord Goddard C.J. regards leading questions as permissible: R. v. Walker [1950] 2 All E.R. 911.Google Scholar
79 Wigmore says that the reason for the prohibition of leading questions has no application to the relation between judge and witness: op. cit., Vol. III, para. 784, p. 159. In R. v. Lawrence, n. 60, p. 95, supra, Jelf J. held a leading question permissible as there was no objection by counsel. The Court of Appeal of Ontario accept the power of the judge to ask leading questions: Connor v. Township of Brant (1914) O.L.R. 274, 282.Google Scholar
80 (1909) 2 Cr.App.R. 215.
81 The regularity of the proceedings prevents free interposition, so that acquiescence cannot be deduced from silence: R. v. Mitchell (1892) 17 Cox 503, 508; R. v. Lees (1907) 71 J.P.J. 342.Google Scholar Moreover he denied her allegation, for what this is worth: see n. 77, p. 85, supra.
82 [1963] 1 Q.B. 857, 868.
83 Ibid., relying on R. v. Treacy [1944] 2 All E.R. 229.Google Scholar
84 n. 69, p. 96, supra.
85 [1963] 1 Q.B. 857, 868.
86 Op. cit., p. 13.
87 Ibid. p. 1.
88 [1967] Crim.L.R. 645; R. v. McKay [1967] N.Z.L.R. 139.Google Scholar
89 Ibid. 152.
90 Ibid. 150. In his Cambridge lecture, under the auspices of the Institute of Criminology, on 24 January 1968, Professor Telford Taylor of the University of Columbia referred to scepticism in the United States over truth drugs: some hold that while they release inhibitions, they also stimulate the imagination. I am indebted to him and to Mr. S. Kreisberg of the same university, now a research student in this university, for the following case, which may allay some of these doubts. One Kidwell was tried in Topeka, Kans., for the murder of his wife, who had been shot four times through the heart. K. had two shot wounds in his chest. At the first trial, the jury accepted the prosecution case that K. had shot his wife, and then tried to commit suicide, and convicted him of first degree murder. K.'s own recollections of the incident were blurred. A second trial was ordered because of certain errors. The defence sent K. to S., a psychiatrist, who administered sodium amobarbital, not a truth drug, and put the results on video-tape. Judge Carpenter, as the first piece of business, allowed the jury to see this tape. K. was seen lying on a couch, and then re-experiencing being shot by his wife, and finally getting the gun and shooting her. The charge was reduced to first degree manslaughter, and K. pleaded guilty. S. remarked afterwards that never in a million years could he have had the eloquence and skill in testifying demonstrated by that tape: Time Magazine, 29 December 1967.Google Scholar Yet if the common law is strictly interpreted, this graphic and cogent evidence would be excluded, as not falling within a recognised exception to the rule against self-serving statements.
91 n. 38, p. 92, supra.
92 [1958] P. 93. See Jolowicz in [1958] C.L.J. 145.
93 n. 72, p. 97, supra.
94 Lutterell v. Reynell (1670) 1 Mod. 282.
95 n. 51, p. 93, supra.