The Lechmere/Cross "name issue"

[David Orsam]

The film crew explicitely asks "would the case against Lechmere stand up in a modern day trial?" or something to that effect. Therefore, that is what Scobie says it would.

The CPR is still irrelevant because that is the civil procedure rules.

[Fisherman]

This is getting complicated! Thus, in respect of James Scobies opinion, was he saying there was sufficient evidence to bring a criminal case based upon modern rules, or the law as it stood in 1888?

The film crew explicitely asks "would the case against Lechmere stand up in a modern day trial?" or something to that effect. Therefore, that is what Scobie says it would.

[David Orsam]

This is getting complicated! Thus, in respect of James Scobies opinion, was he saying there was sufficient evidence to bring a criminal case based upon modern rules, or the law as it stood in 1888?

You'll have to ask Scobie. His words were:

"What we would say is that he has got a prima facie case to answer which means there is a case good enough to put before a jury which suggests that he was the killer."

What I will say is that in criminal proceedings the basic principles of evidence are the same today as they were in 1888.

[John G]

There's no point in looking at the CPR. We are talking about the legal position in 1888 aren't we?

This is getting complicated! Thus, in respect of James Scobies opinion, was he saying there was sufficient evidence to bring a criminal case based upon modern rules, or the law as it stood in 1888?

[David Orsam]

Ah, would this be covered by Practice Direction 32.2, of the Civil Criminal and Family Procedure Rules? https://www.justice.gov.uk/courts/pr...es/part32#32.2

There's no point in looking at the CPR. We are talking about the legal position in 1888 aren't we?

[David Orsam]

Okay, and sorry to be pedantic, but is this argument supported by authority?

Yes, all the legal text books!

[John G]

Just look at any legal text book about what documents can be admitted as evidence. It's all very clear!

Ah, would this be covered by Practice Direction 32.2, of the Civil Criminal and Family Procedure Rules? https://www.justice.gov.uk/courts/pr...es/part32#32.2

[John G]

No, newspaper articles are frequently included in trial bundles and witnesses can be asked about them. But you can't use them in the circumstances being discussed, i.e. in substitution of actual evidence from a person about what they have seen, heard or done.

Okay, and sorry to be pedantic, but is this argument supported by authority?

[David Orsam]

That's the problem. I'm not sure, in respect of a civil action, that there's any judicial authority that relates specifically to the point in question!

Just look at any legal text book about what documents can be admitted as evidence. It's all very clear!

[John G]

In some ways, yes - but does it in this respect?

That's the problem. I'm not sure, in respect of a civil action, that there's any judicial authority that relates specifically to the point in question!

[David Orsam]

Wouldn't that require an exercise of judicial discretion? In other words, is there a rule of law which specifically excludes newspaper articles as evidence?

No, newspaper articles are frequently included in trial bundles and witnesses can be asked about them. But you can't use them in the circumstances being discussed, i.e. in substitution of actual evidence from a person about what they have seen, heard or done.

[Fisherman]

Yes, but this relates to American law, which of course differs fundamentally from English law.

In some ways, yes - but does it in this respect?

[David Orsam]

Look, you can ask a witness if they read a certain newspaper article and what they thought about it at the time or how did they react to reading it. So the newspaper article is here produced as evidence, but not to prove a material fact. So it all depends the circumstances. You can't discuss this issue in a vacuum.

[John G]

I disagree. A judge would certainly rule it inadmissible in a civil case as evidence against Lechmere. Not because of hearsay but because it is not a document capable of being admitted as evidence to prove what Paul said.

But the issue I am addressing is whether Scobie could take it into account as evidence in saying that there was sufficient evidence to charge Lechmere. Plainly he could not.

As evidence in an internet debate, however, I don't have any problem calling it "evidence".

Wouldn't that require an exercise of judicial discretion? In other words, is there a rule of law which specifically excludes newspaper articles as evidence?

[John G]

A quick googling (which is how far my legal insights reach) tells me that newspaper evidence is sometimes allowed, sometimes not. On a site where (US) lawyers discuss the issue, one such lawyer starts out by saying "If it is relevant and it is not hearsay, it may be admissible" and ends by stating "In short, these are matters that no one except a lawyer should try to deal with because they require in-depth knowledge of the law of evidence."

It would seem that our learned friend thinks himself better equipped to decide this - and I am not ruling out that he may be - but as far as I am concerned, I´m going with the professional view, suspecting that British law will not differ very much on the point.

Not that it matters, since there will be no trial. All we can do is to recognize the article as evidence, although not of the highest order, and work from that point of view.

I have nothing much more to say about the matter.

Yes, but this relates to American law, which of course differs fundamentally from English law.