Witness/Evidence Part 8

Overview of Telephone Conversations in Evidence

Types of Identification for Telephone Conversations

  • Witness's initial knowledge of identity:
    • The witness does not know the identity of the person during the call but learns it later through interactions.
Identifying the Conversation's Details
  1. The exact time the conversation occurs.
  2. The location of the conversation (where the witness was at that time).
  3. Confirmation that the witness did not recognize the other person's voice during the call.
  4. Evidence that the witness had later interactions face-to-face with the other party.
  5. Recognition of the other person as the voice from the call after these interactions.
  6. Identification of who the other party was and any others involved in the call.
  7. An accurate account of what was said by each participant during the call.
Example 4.29
  • Question: Where were you at approximately 1.00 pm on 12 January 2018?
  • Answer: I was in my house.
  • Question: What happened at that time?
  • Answer: The telephone rang.
  • Question: Where is the telephone located?
  • Answer: In the kitchen.

Learning Identity Through Transactions

Criteria for Admission of Telephone Conversation:
  1. The time the call took place.
  2. The location (where the witness was).
  3. Confirmation that the voice was unrecognized at the time of the call.
  4. Evidence of a transaction (prior or later) that helped in identifying the voice.
  5. Recognition of the identity of the voice after the transaction.
  6. Identifying who the other party is.
  7. Clarity on what each participant stated during the conversation.
Example 4.30
  • Question: Where were you at approximately 2.00 pm on 4 January 2018?
  • Answer: I was in my house.
  • Question: What happened at that time?
  • Answer: The telephone rang.
  • Question: Where is the telephone located?
  • Answer: In the kitchen.
  • Question: What did you do when the telephone rang?
  • Answer: I picked it up and said, "Hello".
  • Question: Did you recognize the voice?
  • Answer: Not at that time.

Computer-Based Conversations

Communication in the Digital Age

  • Various digital communication methods:
    • Text messaging, instant messaging, video conferencing, email, etc.
  • Admissibility Issues:
    • How to ascertain the sender's identity when the communication is in text format rather than voice or video.

Establishing Identity in Digital Communication

  • Prior or subsequent conduct can be used to identify the person communicating electronically, akin to telephone identification processes.
  • If no additional evidence of identification exists, it becomes challenging to authenticate the sender's identity in text format.

Statutory Presumptions for Electronic Communications

  • In many jurisdictions, it is presumed that an electronic communication was sent by the person indicated in the document.
    • This presumption shifts the burden of proof to the party asserting non-sending of the communication to provide evidence to raise doubt against the presumption.
  • The hearsay rule does not apply to representations of identity in documents recording electronic communications per the uniform Evidence Act.

Usernames and Pseudonyms

  • If using a pseudonym or username, the recipient must establish the identity associated with it.
    • This may require data from an internet service provider which can necessitate a court order to access.

Refreshing Memory for Witnesses

Challenges of Testifying in Court

  • Witnesses frequently face difficulties recalling events during their testimony due to unfamiliarity and high-pressure settings.

Methods to Refresh Memory

  • One common method is to use written documents (e.g., police statements or diagrams) prepared while the events were recent to the witness’s memory.

Foundation for Refreshing Memory (Uniform Evidence Act Compliance)

  1. The witness must have originally known the fact or opinion but experiences a memory lapse.
  2. The witness must not be able to recall adequately without consulting the document.
  3. The witness must know that the document will aid in refreshing their memory.
  4. The document must have been prepared when the events were clear in the witness’s memory or must be deemed accurate at the time.
Procedure to Refresh Memory
  • After establishing a solid foundation:
    1. The witness reads the document provided.
    2. The witness affirms they recall the information adequately.
    3. They provide testimony again based on refreshed memory without further reference to the document.
Example 4.31
  1. Witness: Claims investigator recovered items from the plaintiff's car.
  2. Question: You stated that you removed some items, what did you remove?
  3. Answer: A coat and shoes.
  4. Question: Do you recall anything else?
  5. Answer: I may have, but it was two years ago.
  6. Question: Would anything refresh your memory?
  7. Answer: My report would.
  8. Question: When did you prepare this report?
  9. Answer: After returning to the office immediately.
  10. Judge grants leave: The witness reads the document and recovers the memory of an additional item (set of keys).
  • Note: Witnesses must be warned about the importance of cue words when recalling evidence; failing to use them can prevent the opportunity to refresh memory.