Friday, July 19, 2013

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Can Dolours Price Interviews Be Used In Court: A Correction And Clarification

Ed Moloney with a piece on the admisssibility of hearsay evidence. It initially featured on his own blog, The Broken Elbow.

I am prompted by some confused reporting at the weekend, in particular this story in the Sunday Business Post, to make the following correction and clarification. The claim at issue in the SBP report is to the effect that because Dolours Price has died, her testimony to researchers from Boston College cannot be used in court as evidence.

One Belfast reporter, quoted in the SBP story said this: “I don’t see material evidence coming out of this. [Dolours Price] can’t be interrogated; she can’t be brought before a jury.”

Another agreed: “There is absolutely no conceivable possibility of this stuff being used in court. The witness can’t be cross-examined. I’d be very surprised if you can even get this heard in court.”

The effect of such misunderstanding of the legal situation is to minimise the potential legal and political consequences of the Boston College subpoenas and to infer unnecessary alarmism on the part of campaigners against the subpoenas.

To be fair, these reporters are not the only ones confused. The judge in the Boston District Court who first okayed the handover in 2011 made the same mistake and I have had to correct Congressional staffers who had the same inaccurate view.

The purpose of this short posting is to put the matter to rest for once and for all.

Dolours Price’s interviews can be used in court as evidence and the authority for this statement is no less than the British Crown Prosecution Service. The CPS website posting which deals with the admissibility of hearsay evidence, which is how Dolours Price’s interviews are defined, makes it abundantly clear that statements made by dead people are admissible.

Here is the link to that posting, and here is the extract which cites Section 116 of the Criminal Justice Act of 2003:
CPS
 

OK folks?

There is automatic admissibility of a statement made by an identifiable person that would be admissible if that person were available to give oral evidence but are unable to do so because either: The person is dead (Section 116(2)(a);

 And the CPS goes on to list other categories.

The issue of the weight to be given to her interviews will be a different matter. She cannot be cross-examined and she had a history of psychiatric problems which are problems for prosecutors. But if testimony from other interviews, such as the seven currently awaiting a final legal decision, support her evidence then her interviews will carry greater weight. But admissible her interviews most certainly are.
This is not rocket science guys. It’s all on the internet.

14 comments:

frankie said...

I read that piece on Ed's blog the other day and just after heard about Stephen “Stippo” Rakes turning up dead.





AM said...

Sinn Fein’s dismissal of Boston College tapes is utter hypocrisy

AM said...

Boston saga proves law trumps academic works

AM said...

Dáil Questions: Data Protection & the Boston College Case; HET jurisdiction

Simon said...

I am surprised at the Sunday Business Post using journalists for legal opinion as even experienced lawyers can get things wrong. Lawyers are less likely to make mistakes regarding the law than journalists so why do newspapers constantly seek unreliable opinion?

I would hazard a guess that Dolours' evidence could have been used in a criminal court before her death as it is supposedly part of an admission or confession which is one of the exceptions to the rule that hearsay is inadmissable. It certainly could have been used in a civil court before her death.

I understand Ed's point though that now it falls under the deceased person's exception also so a criminal case can perhaps proceed with more ease.

AM said...

Simon,

Peter Geoghegan is a very good journalist. I know when he initally wrote about it he must have quizzed me alone for what seemed like hours. He wanted more than a soundbite. He has given an opinion that many lawyers would agree with. I think it is a complex and grey area and while I certainly would not rule out what Ed has said on the matter, it is just not cut and dried. Certainly at the judicial review hearing in Belfast the judge said hearsay evidence is admissible.

Simon said...

When we were at college we were told that in a civil case most types of hearsay are permissible and in a criminal court there are exceptions to the general rule that they are not. One of these exceptions is that it is hearsay which is part of an admission or confession and an other exception is that the person is deceased.

So my point is that it would have been admissible even if Dolours was alive (part of a confession)and Ed's point stands that it is admissible (as Dolours is now deceased).

I can't be 100% since although I have referred to my text book, law can change quickly, certainly quicker than I can usually keep track of.

itsjustmacker said...

I'm Curious , If hearsay evidence is admissible, Why have they not used Brendans and Dolour's interviews which are still freely available.
Because if it was Adams they were really after then they just need to use Brendan's and dolours Interviews.

To me , something is amiss.

Simon said...

itsjustmacker- I can only comment by betraying my lack of knowledge but I guess it's because the weight given to hearsay would depend on many factors like corroborating evidence, the veracity/accuracy of the source material, how many parts removed from the source the information is: is it secondary or primary.

I would suggest they would need much more than what is already available perhaps even more than the BC Tapes hold but if a criminal case fails to convince beyond reasonable doubt it is more likely a civil case will succeed on the balance of probabilities.

AM said...


Call for British government to release war diaries relating to Jean McConville’s murder

tiarna said...

Ed,

The PPS can say that evidence is admissible but when furnished before a court the Judge might not agree.

If a judge were to accept judge it as being admissible -then at full Hearing its evidential weight is more fully scrutinised --especially against whatever other evidence is available --or in the absence of other evidence.

With no other independent or verifiable evidence I would imagine that DPrice's recordings might be used to draw inferences but not enough to convict beyond reasonable doubt which is the standard applied to all cases pursued by the PPS.

AM said...

Sen. Menendez asks secretary of State for help in release of IRA interviews

itsjustmacker said...

Kerry was all for not letting the tapes go to Police service, But, Since being elected Secretary of state he seems to have washed his hands of them and seems to be doing what Hilary Clinton done when he wrote to her regarding the tapes, and got no reply.

Simon said...

AM- "Peter Geoghegan is a very good journalist." Apologies for the late reply, I thought I had responded before now.

I wouldn't argue against the above statement as I wouldn't be familiar with his work. I have heard of him though and know he is held in high esteem. My comment wasn't meant as a personal slant.

All I meant was if you want to source legal opinion it makes sense to ask an expert in the specific legal field not someone outside of that profession. (Just to cut down on the margin of error, although as I said and as you agreed even experienced lawyers can get it wrong.)