LEGAL FOUNDATIONS OF CRIMINAL EVIDENCE

Legal Foundations of Criminal Evidence

Legal Foundations of Criminal Evidence

Testimonial

Testimonial evidence is the statement by which a person relates facts of which he has knowledge or whereby an expert gives his opinion. The witness may also be allowed to express an opinion, and may be allowed to testify on facts or circumstances which he had no personal knowledge, that is to say on hearsay. The expert witness is one who has specialized expertise in an industry which is mandated to assist the court and assist in the assessment of a scientific or technical evidence. A lawyer can not be regarded as an expert witness: this would impinge on the court's role is supposed to know the law. It is for each party to come and present his own witnesses. The same parties and their representatives may witness.

Discussion

The Reporter's Testimonial Privelege

In US, the reporter's testimonial privilege is governed by state law and varies from one state to another. Therefore, one cannot discern one uniform set of rules that governs the reporter's privilege in the US. Under the common law, traditionally, a “news-gatherer” did not have the privilege to refuse to testify about the identity of confidential sources of information. In the forst reported case, as early as 1848, the journalist John Nugeny was arrested by order of the vice President of the US after refusing to reveal in a state interrogation, the source that leaked secret information to him about a treaty between US and Mexico. Despite the occurrence of such earlier instances, the first discussion of the reporter's testimonial privilege by the US Supreme Court was not unti 1972 in the criminal matter. The court held that a privilege does not exist in criminal grand jury proceedings, but it did recognize that the press is entitled to some protection under the constitutional First Amendment (the freedom of the press clause) (Wallace, 1994).

Contemperory Testimonial Privilege Applicable to Married Persons

Today, there are two privileges appliucable to the married persons. The privilege against adverse spouse testimony is derived from the rule that the accused lacked the capacity to testify and the rule that the husband and wife are one person. At common law, it applied to prevent either favorable or adverse testimony. Today, the privilege against adverse testimony survives based on the need to protect the harmony of the marriage relations. The states vary, some having abolished the privilege entirely. In atleast one the privilege is held by the other (non-testifying) spouse, and one source suggests that in most states the privilege is no longer recognized in civil cases. In criminal cases, it survives in many forms; however, there are exceptions to the privilege in crimes against the family, such as domestic violence, child abuse, or neglect, etc.

The other marital privilege is the privilege protecting confidential spousal communications. All states recognize this privilege by whivh either spouse may prevent the other spouse from revealing confidential communications. The key is the adjective adjective “confidential”, it the communication was not confidential (if ...