NATIONAL OPEN UNIVERSITY OF NIGERIA SCHOOL OF LAW COURSE CODE: LAW446 COURSE TITLE: Law of Evidence II 1 COURSE TITLE: Law of Evidence II Course Code: LAW 446 Course Title: Law of Evidence II Course Writers: Iroye Samuel Opeyemi Esq. School of Law, NOUN Course Editor: Dr. (Mrs .) Erimma Gloria Orie School of Law, NOUN Dean School Of Law : Prof. Justus Sokefun School of Law, NOUN Course Coordinators: Iroye Samuel Opeyemi Mr Nimisore Akano (Mrs) Folashade Aare (Mrs) 2 LAW 446: LAW OF EVIDENCE II Table of Contents Module 1 Unit 1: Evidence of Character Unit 2: Opinion Evidence Unit 3: Similar Fact Evidence Module 2 Unit 1: Hearsay Unit 2: Exceptions to the Rule against Hearsay I Unit 3: Exceptions to the Rule against Hearsay Rule II Module 3 Unit 1: Estoppels Unit 2: Competency and Compellability Unit 3: Privilege Unit 4: Corroboration Module 4 Unit 1: Burden and Standard of Proof Unit 2: Documentary Evidence Unit 3: Confessions Unit 4: Judges Rule Unit 5: Examination of witness 3 MODULE I UNIT 1: EVIDENCE OF CHARACTER CONTENTS 1.0 Introduction 2.0 Objectives 3.0 Main Contents 3.1 Definition of Terms 3.2 Character of Witness 3.3 What Constitutes Evidence of Bad Character 3.4 When Character Evidence Becomes Relevant 3.5 Character Evidence in Civil Proceedings 3.6 Character Evidence in Criminal Proceedings 5.0 Conclusion 5.0 Summary 6.0 Tutor Marked Assignment 7.0 References/Further Readings 1.0 INTRODUCTION According to the Black’s Law Dictionary 5th edition, Character is the aggregate of the moral qualities which belong to and distinguish an individual; the general result of the one’s distinguishing attributes. It describes it as that moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him. Blacks assert that ‘’Character’’ as the moral qualities of a person is the qualities the person possessed as against ‘’reputation’’ which is what others believe one to possess. The former is personal and real while the latter is external and based on other people’s knowledge and assessment. More often time when ‘’character’’ is used in relation to the law of evidence, it might be signifying ‘’reputation’’ which is what the people tends to know about the person. Character in relation to giving evidence could either be bad or good. The evidence of good character of an accused person or of a witness is admissible in evidence. It points to the direction that the allegation against him is less likely to be true. Conversely, the evidence of bad character or of bad reputation is inadmissible in both civil 4 and criminal proceedings, except where a statute specifically allows it. In this unit, you shall learn about character evidence generally, what character evidence is and the exceptional circumstances when it becomes relevant and admissible. 2.0 OBJECTIVES This unit is to project to the student a full and proper understanding of the term “Character Evidence”. It will also aid the students to identify when it is likely to be admitted or rejected in evidence. It further examines the Evidence of good and bad character and how such can be relevant. 3.0 MAIN CONTENT 3.1 Definition of Terms Literally, ‘character’ signifies a reputation and a disposition. Section 77 of the Evidence Act 2011 has defined the concept of the word “Character” in relation to the Law of Evidence. It is defines it as “reputation” as distinguished from “disposition”.- (b) Character evidence connotes evidence regarding someone’s personality traits; evidence of a person’s moral standing in a community based on reputation or opinion. It refers to one’s reputation – the esteem or otherwise, in which a person is held; the conviction based upon the person’s behaviour. 3.1.1 Character Evidence According to the Black’s Law Dictionary, character evidence refers to the evidence of a person’s moral standing in community based on reputation. The admissibility of Character evidence in Nigeria Legal practise is set out under the sections 77-82 of the Evidence Act, 2011. 3.1.2 Character Distinguished (a) Reputation and Disposition: A reputation must be distinguished from a disposition. Disposition according to Oxford Advanced Learner’s Dictionary, is a person’s natural qualities of mind and character. It is the natural way of behaviour towards others. The Black’s Law Dictionary, 5th Edition in consideration of it with respect to mental state defines it as an attitude, prevailing tendency, or inclination. One may be of an evil disposition and yet be of good reputation. The converse is equally true. (b) Character and Conduct You need also to distinguish character evidence from evidence of conduct or of behaviour. Conduct can be defined in relation to one’s action. According to Black’s Law Dictionary 5th edition, it means an action or omission and its accompanying state of mind, or where 5 relevant a series of acts and omission. Thus, in relation to character, conduct will be the action or inaction of an individual before the present fact. Character evidence will be admissible for example evidence of previous convictions which are related in substance to the offence charged- Section 82 (4) (5 ). It applies in both civil and criminal proceedings (Evidence Act 2011, Sections 78-82). (c) Character evidence and similar facts Similar facts evidence is defined in section 12 of the Evidence Act, which provides as follows: When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention or to rebut any defence that may otherwise be open to the defendant, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. It has two connotations. (a) Facts having general resemblance and (b) Facts having particular resemblance 3.1.3 Facts having general resemblance. Illustration: Fact situation one: A Stole, B murdered, C burgled. There is a general resemblance; each is a criminal; they are bad men or women. Fact situation two: ‘C’ is charged with stealing; three years earlier, he committed house breaking. Here is a similar fact evidence showing in each case that A is a criminal. 3.1.4. Facts having particular resemblance Illustration: Fact situation three: X is charged with obtaining N100,000 from Z by false pretence, that the ring is made of gold; some six months earlier, he had obtained N50,000 from Y by the same misrepresentation. Here also is a similar facts evidence showing that X is a bad man and a criminal whose particular modus operandi is obtaining money by false pretence. Facts situations one and two show general resemblance. They are irrelevant, not admissible in evidence, against A or C. Fact situation three is of a particular resemblance – distinctive modus operandi – and is admissible against X. It may be submitted that evidence of general resemblance or general evidence system is admissible only if apart from general resemblance, the Evidence Act allows it. But those 6 evidence which shows particular resemblance such that they fix the accused as the actor in each fact situation is relevant and admissible. The purpose of this type of evidence system (evidence of similar fact) is to show that the accused is to be guilty of the offence currently charged by simply showing that he or she had been guilty of other misconduct than the one primarily charged. You would have observed by now that similar facts evidence and an accused’s bad character reinforce each other or support the allegation made against the accused. Hence, evidence of bad character, which falls within the scope of similar facts evidence is relevant and admissible. Whenever evidence of bad character is relevant, evidence of previous conviction is also relevant. However, the general principle remains that: The evidence of character of either party to a judicial proceeding is irrelevant and inadmissible and in a criminal proceeding the evidence of bad character (reputation) of the accused, or his previous conviction or previous acquittal is also irrelevant and inadmissible unless the Evidence Act or other statute so permits. In this regard admissibility of evidence system in a criminal trial would be determined by asking, in each case whether the probative value of each evidence outweighs the prejudicial effect: DPP V P (1991). In civil proceedings, such evidence is admissible wherever it is relevant to determine the matter in issue provided it would not be oppressive or unfair to the other side to do so. See Mood Music Publishing Co Ltd v De Walfe Publishing Ltd (1976). 3.2 Character of the Witnesses The character of a witness is always relevant to his or her credit to show that he or she is a person of good character and worthy to be believed. The evidence of a witness’s character becomes relevant if he or she: . denies his or her previous conviction . has made inconsistent statements . denies bias in favour of one party . Where the reliability or credibility of a previous witness (e.g. medical evidence of abnormality of mind) may affect reliability of the witness’s testimony. The character of a prosecutrix may be impeached in sexual offences, thus in a charge of Rape and similar offences, a party may adduce evidence of her reputation to show that she is a common prostitute. 7 The prosecutrix may be cross-examined as to acts of immorality with men, other than the accused, for purpose of impeaching her credit in such a case.