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:
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.
The Broken Elbow 
Ms. Prices statements would , in all probability, be inadmissible for any number of reasons not the least of which is that they were unsworn. In addition she would be unavailable for cross examination. Rules of evidence vary from one jurisdiction to another but generally the prohibition against hearsay evidence in common law jurisdictions rests upon the same fears of unreliability.
Its never a good idea to read statutes in isolation . Rather research ,including the relevant case law and companion statutes, will probably reveal that the statements in issue would never be admissible.
i am sorry you are wrong. the CPS is the body that would be in charge of any prosecution in belfast and they say quite clearly that even though she is dead, a statement made by the likes of Dolours Price would be automatically admissible. the fact that she is dead sort of makes the issue of cross examination moot, i would have thought. let us say you gave a TV interview saying that you and a friend broke into a neighbour’s home and stole their TV set, you then died and no-one from the police could interview you or you could not be cross examined in court, are you saying that this interview could not be used in evidence against your friend? it may not be conclusive evidence or even convincing evidence, and it may not succeed in convicting you but evidence it is and in this post 9/11 period in the courts in the UK such evidence is now accepted. the law that enabled this was passed in 2003.
Not being admitted to practice before the courts in the north of Ireland and not being familiar with the rules of evidence, both statutory and under the case law there, it is a foolish use of time for me to speculate on whether unsworn statements made by a now deceased individual implicating a third party in a criminal activity would be ruled admissible by a hypothetical judge in a hypothetical proceeding against that hypothetical third party.
Nevertheless, I feel more confident in stating that in New York if such statements were proffered in a trial setting that they would be ruled inadmissible.
The dangers in admitting hearsay statements of this sort are manifest.
The inability to cross examine the declarant, the mental state of the declarant, the motives of the declarant, the motives of the party making the offer of proof are just some that come to mind.
However, considering the lamentable legacy of the court system in the north of Ireland including non jury Diplock Courts, super grass testimony, conclusive testimony by police officials, lengthy detention without access to legal representation, extreme interrogation techniques, etc., it would not be surprising that these statements could be made part of the deliberative process, even statements made on TV , that paragon of veracity.
Reblogged this on seachranaidhe1.
I also do not know the rules over there, (and I am too unfamiliar with New York state evidential rules to comment), but under the Federal Rules of Evidence 804 (b)(3)(B) and perhaps others the statements of Price might get in. See, the official commentary to the Rule: “A statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as a declaration against interest. . . . On the other hand, the same words spoken under different circumstances, e.g. to an acquaintance, would have no difficulty qualifying. The rule does not purport to deal with questions of the right of confrontation.” The Criminal Justice Act, in the same section quoted, a little further down, refers to the court’s power to exclude for unfairness. How the case law over there has interpreted that I do not know.
Of course, a good defense attorney would fight tooth and nail to keep it out (balancing the prejudice, reliability, confrontation right etc). But even under attack from a confrontation clause perspective, evidence of private conversations here have been admitted in criminal trials. Also, were Adams to testify in his own defense (not likely, I agree!) the Price materials over here could form the basis of cross examination material.
And in a civil matter over there…..?
New York State, Federal, civil, criminal, case law, statutory exceptions to the hearsay rule, UK procedure and rules of evidence. There are too many variations that are too subtle to permit blanket , dogmatic, conclusory statements about the admissibility of the declarations in question. At least that’s what I think. Greater minds with greater understanding of these things might be able to do so but not I.