An "implied assertion" is a statement (or conduct) that implies some
fact. Did I invent that? No. Did Grice invent that? No. It's LEGALESE: Hart
_analysed_ that (or if he didn't he should've).
There are varying opinions as to whether "hearsay evidence" of an
implied
assertion should be "admissible" in court to prove the TRUTH of the
contents of the implied assertion. Sounds odd? Well, it's not that
difficult.
Consider the question:
i. Have you got ny charley?
where "Charley" is slang for cocaine -- rather than a silent film
featuring Charlie Chaplin). Grice would distinguish between
ii. Is there any charley? +> X
where X is whatever is IMPLICATED by the question. But then, to honour
Strawson, Grice would also consider:
iii. Is there any charley? >> X
where X is whatever is PRESUPPOSED by the question.
A question is NOT an assertion.
iii. Snow is white.
is an assertion. So the idea is that something asserted is implied by
some
utterance.
While an implied assertions IS considered hearsay, it is generally
considered more reliable than a REGULAR statement or assertion, as an
implied assertion is far less easy to fabricate.
But then, try to read and understand Dummett on "CONDITIONAL assertion"!
and fail!
In fact, in R v Sukadeve Singh 2006 EWCA Crim. 660, 2 Cr.App.R 12, Rose
LJ, gives the judgment of the court and says this at paragraph 14.
When sections 114 and 118 of the Criminal Justice Act 2003 are read
together the sections,
in our judgment, ABOLISH
-- or as Popperian Palin would prefer, 'refudiate' --
the common law hearsay rule
(save the components which are expressly preserved [This type of ceteris
paribus defeater fascinated a defeatist like H. L. A. Hart!)
and create instead a NEW rule AGAINST hearsay which
does NOT extend to IMPLIED assertion.
SO in the NEW RULE, "implied assertion" is what Grice, emphatically,
calls
a "no no".
WHAT WAS SAID -- or as Grice expressed, "EXPLICITLY COMMUNICATED" -- by
the telephone callers ("We want some charley") in Kearley is NOW
admissible
as DIRECT evidence of the fact that there was a ready market for the
supply
of drugs from the premises, from which evidence could be INFERRED an
intention by an occupier to supply drugs.
Rose concludes: "the view of the MAJORITY in Kearley, in relation to
hearsay, has been set aside by the Act" -- which is a pity, since, after
all, it
was a majority, even if apparently it was the minority who was right!
In Sukadeve Singh (a different case, 2006), the content of the
utterances
in each telephone entry was held NOT to be a matter stated within
section
115 but to be one such monstrosity, that of AN IMPLIED ASSERTION, which
IS NOW ADMISSIBLE because it is no longer "hearsay" -- the conceptual
analysis of 'hearsay' has changed -- implied assertion does not count, and
that is that.
But back to fourteen years earlier: R v Kearley (1992) 2 AC 228.
"Kearley", as the case is abbreviated as, is a case that may be taken as
concerning the rule on the conceptual analysis of "hearsay" and
admissibility of evidence -- and it evokes the concept of an 'implied
assertion' (Legalese if ever there was one). "Is there any charley?" was a
question, an utterance in a telephone conversation. But this question
carried an IMPLIED ASSERTION: that charley was available and the Kearley was
selling charley.
The appellant (Kearley aka Chippie) is charged with possession of drugs,
and, worse, intent to supply. Some of the police that arrests Kearley
stays behind to search Kearly's house during which time Kearley receives
seventeen telephone calls requesting for supply of drugs ("Have you got any
charley?") None of the seventeen telephone callers was asked to provide
evidence in court. The police was. That's the UK forya!
The counsel for the appellant argues that the evidence -- the utterances
in the seventeen telephone calls -- is irrelevant because the evidence
only illustrates the state of mind of each of the seventeen telephone
callers, not the state of mind of the accused.
If they think there's charley, that's THEIR problem, not Kearley's! This,
however, fits the Griceian paradigm:
i. Is there any charley?
EXPRESSES A BELIEF that charley may be found there. Why call otherwise?
The counsel, to look intelligent, cites Subramaniam v. Public Prosecutor
1956,
and Blastland and Woodhouse v. Hall 1980.
It is also contended that the number of calls -- seventeen -- does not
make the evidence more relevant because if one telephone call is
irrelevant, 17 calls are equally irrelevant. This follows from a maxim
that Grice
admits is 'terse': "Be relevant!".
It is held in Wright v. Doe 1837 that evidence is only relevant if
weight
can be properly attached to it as a step towards PROVING an issue in the
case. This case -- Wright v. Doe, 1837 -- is concerned with a similar
(if
Victorian) issue, where the court holds that the sanity of the testator
as expressed by a third party's letter addressed to the testator is
INadmissible because of hearsay. Britons use 'hearsay' broadly: a letter
does not say
nor hear, but so there!
The majority of the court (with two important lords, Browne-Wilkinson
and
Griffiths, dissenting) finds that the evidence is irrelevant. And the
majority find the evidence is irrelevant because it only shows or
displays a
belief manifested in the minds (or psychological attitudes, as Grice
prefers)
of the telephone callers that Kearsley would supply drugs.
The evidence says nothing about whether Kearsley actually supplies
drugs.
This is ripe for Griceian analysis.
He usually taped conversations.
i. Have you got any charley?
is surely different from the REGULAR assertion:
iv. I need some charley, NOW.
It was a pity the policeman was not being sincere, "Sorry, I'm a cop;
there's really nothing I can about that, now -- And the sad thing is that
I can't forward your message to the intended addressee as it happens."
Surely (ii) does not ENTAIL that K has charley, so I cannot see why
Browne-Wilkinson and Griffiths disagreed! And even if the evidence
IMPLIES
the notion that Kearsley was a supplier of drugs, the evidence was
EXCLUDED,
by the conceptual analysis of "hearsay" in the hearsay rule, and thereby
rendered inadmissible. Griffiths dissents.
Griffiths says that he agrees with Lord Browne-Wilkinson that the appeal
should be dismissed. Griffiths sees the admissibility of such evidence
as
a matter of "common sense" -- "the least common of the senses," he adds
for
humorous effect. As long as weight can be attached to the evidence, it
should be admissible.
Is the sole possible relevance of the UTTERANCE ("We need charley") that
by manifesting the telephone caller's belief that the defendant is a
supplier? Griffiths cites the argument of the counsel for the plaintiff
in the case of Wright v. Doe, 1837, arguing that THE LETTER can be used
to show
an ordinary course of life, which is relevant to the case.
If a letter was written in a foreign language it would show that the
testator knew that foreign language. Griffiths, being a clever lord,
believes that inferences will always be drawn. Therefore, the existence
of
multiple possible inferences is immaterial to the admissibility of the
specific
evidence. What is not immaterial is the consistency of the inferences.
In Blastland, all the inferences are equally consistent or plausible,
whereas in the Kearsley case it is clearly more plausible that Chippie
WAS supplying drugs -- hence the seventeen telephone calls.
According to Lord Ackner, however -- another clever lord, Ackner, not
Blastland -- I have to keep making this explicit for Geary -- in
Blastland, if one was to draw a relevant fact by means of a NECESSARY
IMPLICATION
(rather than implicature) from a person that is not called a witness, it
is
INadmissible as hearsay.
But, as Geary reminds me, in the case of Ratten v. The Queen, Lord
Wilberforce supports the notion that the IMPLIED ASSERTION of a
relevant
fact is EXCLUDED by the hearsay rule. The fact must be relevant -- or
asserted
directly, NOT IMPLIEDLY. No implied assertion, but REGULAR assertion. No
implicit assertion, but explicit assertion. The fact that in the current
case the act of telephone calling the accused per se is completely
irrelevant to
his accusations. Hence it is irrelevant _simpliciter_ ("If relevancy
were
a simple thing. It never is!" -- Geary).
Ackner nonetheless goes on to conclude that implied assertion should NOT
be excluded as hearsay, thus dismissing the appeal. Ackner believes that
this evidence is INadmissible. The evidence is an oral request for drugs
to be
supplied by the appellant. The utterance
i. Have you got any charley?
was NOT made in the presence of the appellant, NOR in the a scenario were
the appellant was the actual addressee, NOR by a witness. The evidence
"invites" the jury to draw the inference that the appellant was a drug
dealer (vide Zwicky on implicature as an invited inference).
The evidence is only able to show that the telephone callers are under
the
impression that Chippie will supply drugs to them. But such impression
says
nothing about whether Chippie actually does supply drugs to them, or
INTENDS to supply drugs to them.
The evidence is evidence only as to the state of mind (or psychological
attitude, to use Grice's parlance) of the seventeen telephone callers,
who wished to obtain drugs and thought that the accused would supply
them.
Therefore, even if the prosecution is able to get the seventeeen
telephone callers to testify, it would still be INadmissible in court.
Oliver argued that a piece of evidence is relevant if it can be said to
be probative. The seventeen telephone calls are irrelevant. The
seventeen
telephone calls must show that the accused IS supplying drugs.
But all they do is show that the telephone callers BELIEVED that the
accused (or someone living in the same premise as the accused) is
supplying drugs. Oliver said, just to provoke Griffiths (it's amazing
how a lord can
contradict another lord with a straight face, too, and a wig) that a
layman's approach is not a good guide in a criminal trial. Oliver adds,
contra
Griffiths, that using "common sense" as a determinate of relevance is
inadequate. The existence of potential custom does not establish
intention of the
supplier.
Browne-Wilkinson thinks that the seventeen telephone calls are relevant
because they show people are resorting to the premises for the purpose
of
obtaining drugs from the accused. Though such circumstantial evidence may
be inadequate, the jury may nonetheless draw an inference from it. I.e.
an
implied assertion from
i. Have you got any charley?
Such existence of a potential market shows an opportunity for the
accused
to supply drugs. Similarly, if a coffee-shop had people lined up outside
to buy coffee, the chances are that the owner of the coffee-shop intends
to
sell coffee. Just because the seventeen telephone calls were irrelevant
does not mean they cannot go towards proving a relevant fact.
An alleged implied assertion which is derived from irrelevant evidence
can be relevant. The number of calls -- seventeen -- is also relevant
because
it shows the size of the potential market hence the size of opportunity
to sell. If the callers were able to testify, Browne-Wilkinson sees no
reason why they should be prevented, hence no reason to prevent the
police. The
NZ case of Davidson v. Quirke 1923 is cited to show that calls were
relevant. The case was concerned with illegal gambling and the big number
of
telephone calls made to place bets.
So long as the fact is relevant in the sense that it tend to prove an
issue of fact in the case it should be admissible.
We should consider Hearsay Evidence, Statutory Accommodation in The U.K.,
since, after all, Grice was a Brit. Chapter 2, Part 11 of the Criminal
Justice Act, 2003 (hereinafter “2003 Act”) seeks to re-define (or
provide a new conceptual analysis -- hereinafter CA2) and regulate the
exclusionary rule against hearsay and the permissible exceptions.
However, the reforms have both principled and practical difficulties.
Principally, the rule, rooted in common law, ensures protection of the
accused by making inadmissible evidence, those that cannot be examined
by him.
In this context, our conceptual analysis seeks to examine the issue of
whether the 2003 Act reaches a middle-ground in trying to reconcile its
international obligation to abide by the above principle and its domestic
interest in prevention of crime.
Practically, the 2003 Act modifies the circumstances to which the hearsay
rule applies. Whether this achieves the purpose it aims at has been
examined.
Here, the effect on an "assertion" that is unintended, more specifically
"implied, but unintended",is specifically analysed. As "implied but
unintended" it OBVIOUSLY falls OUTSIDE Grice's idea of IMPLICATURE,
which
is always
IMPLIEDLY meant.
Amongst the reforms brought out by the 2003 Act, one of the most
significant is to re-define (or provide a new conceptual analysis --
Let's call that CA2 --
-- of the concept of hearsay, thereby impacting the hitherto rule of
hearsay in both form and substance. In general, the common law rule
against
hearsay operates to EXCLUDE assertions made out of Court which were used
as
evidence of the matter it contained.
The rationale behind the same was because apart from being unreliable and
indirect, it adversely impacted the right of the accused to examine all
the
witnesses against him. A question arises as to what kind of assertions the
rule applies against.
It is in this context that the Griceian concept of ‘implied assertion’
(and its analysis) gains significance. The issue is whether the rule
would
apply against those matters that could be inferred from an explicit
utterance, where the contents of the latter per se are not in issue.
The answer to this came in the case of Wright where the court reasoned
that when one deems an implied assertion to be an explicit utteranceand
the
latter would have been excluded, in such cases, it became imperative to
extend the hearsay rule against such assertions as well.
Similarly, in the case of Teper the identity of the accused was proved
with the evidence of a police officer who heard a woman shout out to the
defendant at the time of incident, exclaiming at the fact that he was
running away.
The Privy Council in the case rejecting the evidence held that the
statement was being used as evidence to show that the accused had been
identified, as can be implied from the statement that the policeman
heard, if which
were an explicit utterance would have been excluded as the woman did not
appear in court.
Arguably the decisions are reasonably justified because the rationale
behind EXCLUDING hearsay evidence would extend to these implied
statements
as well. There's risk of insincerity, possibility of concoction,
inability of the accused
to examine the maker etc.
However, the court here is making an objective inference as to the
underlying assertion and attributes the same to the maker. This does not
address
the problem where the maker of the utterance did not
INTEND to convey what the Court infers from his statement.
Cheers,
Speranza
------------------------------------------------------------------
To change your Lit-Ideas settings (subscribe/unsub, vacation on/off,
digest on/off), visit www.andreas.com/faq-lit-ideas.html
