Members; Group 25:

1. Mutenyo Patricia Maumo G34/38732/2011

2. Gitau Mercy Wambui G34/39385/2011 -

3. Wamugunda Wilfred Mwangi G34/39703/2011 -

4. Osoro Laurettah Nyanchoka G34/38236/2011 -

5. Wangigi Purity Njeri G34/39715/2011 -

6. Nduku Brenda Mueni G34/39817/2011 -

7. Ochieng Mercy Segah G34/37926/2011 -

8. Mungai Wendy Wanjiku G34/39813/2011 -

9. Chege Caroline Wairimu G34/39805/2011

10. Wachira Maryanne Wanjiku G34/40001/2011

(Kindly indulge us for the additional words; we greatly needed to include the table of

contents and the names of the group members.)

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Contents
The Trial process; Demeanor Evidence and Admissibility .............................................................. 2

Evidence .................................................................................................................................................. 4

The Trial Process .................................................................................................................................... 5

Demeanor of the Witness at Trial ........................................................................................................ 7

Demeanor of the Witness during a Police Interrogation. ............................................................... 11

Conclusion ............................................................................................................................................ 14

The Trial process; Demeanor Evidence and Admissibility

Vital information and pointers are drawn not only from dry facts and evidence, but also from

deductions made during investigations and fact finding missions of the innocuous statements

made and physical reactions that congeal into something coherent, logical and revealing. Also,

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remarks made innocently or repeated by one or more people in describing an incident or event

might expose some hidden conspiracy, which would otherwise have gone undetected. The

lawyers also infer very critical facts by observing another testify under oath in a court room.

Consequently, trials have been in use since the ancient world for their efficiency.

This piece analyses the general rule of evidence “all relevant evidence is admissible subject to

the exceptions”, converges to demeanour evidence as a subtype of evidence together with the

technicalities of its admission in court.

Evidence is used to prove either facts in issue or relevant facts from which the facts in issue may

be inferred. It includes testimonies of witnesses, documents and objects that can be used as

evidence.

Parties to an action are not given a blanket permission to put all the information that may assist

their case before the court. They are only permitted to put before the court evidence that is

relevant to a fact in issue and admissible subject to exclusions of the law of evidence.1

Relevance of evidence as defined by Stephen Digest refers to any two facts to which if it is

applied are so related to each other that according to the common course of events one taken

whether by itself or with connection with other facts proves or renders probable the past,

present or future existence or non existence of the other.

The statement above by Miguna M describes relevant evidence that is admissible in court

subject to exceptions. It includes:

1 Unlocking evidence, Jacqueline Martin and Chris Turner, page 2.

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 1. Dry facts and Evidence

2. Fleeting impressions gauged and observed when one testifies under oath or gives an

account of an event during investigations, inquiries, fact finding missions, examinations

or trials.

3. Remarks made innocently or repeated by one or more people in describing an incident

The two latter points are deductions made by the tribunal of fact during trial, or during cross

examinations by dint of the appearance or demeanor of the witness and repeated comments

made by several witnesses while describing an incident.

We classify demeanor evidence as real evidence on the premise of the definition that real

evidence must be something that is capable of making an impression on the court and includes

the actual appearance of a witness. 2

Evidence

The Kenyan Evidence Act puts it as: the means by which an alleged matter of fact, the truth of

which is submitted to investigations, is proved or disapproved, without prejudice to the

forgoing generality, includes statements by accused persons, admissions and observation by the

court in its judicial capacity.

There are several kinds of evidence that can be put before the court. They include; direct or

percipient evidence, circumstantial evidence, hearsay, original, primary, secondary,

presumptive, conclusive, oral testimony, documentary and real evidence.

2 Unlocking evidence, pg 7

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The Trial Process

In ancient Rome, the adversarial system was created with the view to fair trial, impartial

tribunal, to give a chance to parties to argue their case without prejudice, to be argued against

(confronted) and to confront any party that is not on their side.

They were of the idea this way all factors from the parties in relation to the case would be

experienced; that is the evidence, facts and demeanour: reactions, expressions and mannerisms.

This way credibility of each parties account would be used against each other to arrive at a

decision.3 That is why the general rule against hearsay is that it is inadmissible in the court of

law first because:

 It is not the best evidence

 It was not on oath, and

 mainly in relation to demeanour and credibility the opportunity to assess the

“original” maker of the statement is lost

In a trial process, a lawyer considers the perception, memory and narration in evaluating the

testimony of a witness. Therefore a witness is encouraged to do his best in respect of perception,

3 Principles in Practice: Assessing Credibility –Hazel Genn p. 2- 5

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memory and narration. He is required to testify under oath, in the personal presence of the trier

of fact and subject to cross examination.4

For that reason a lawyer may rely on testimony evidence which is defined as the oral statement

of a witness made on oath in open court and offered as evidence of the truth of that which is

asserted and conclusive evidence. Section 63 of the Evidence Act states that oral evidence must

be direct evidence and only relate to facts of which the witness claims to have personal

knowledge or firsthand knowledge.5

On the other hand, a lawyer may not rely on hearsay evidence because it is testimony repeated
in court by a person other than the one who perceived it. It is generally inadmissible in court
because it is not the best evidence and it is not delivered on oath. The truthfulness and accuracy
of the person whose words are spoken to by another witness cannot be tested by cross-
examination, and the light which his demeanour would throw on his testimony is lost.6

We realise therefore that in addition to the evidence presented in the court of law, demeanor is

important as it adds to or reduces the credibility of the evidence.

Lord Bingham describes demeanour as the sum of a witness’s ‘conduct, manner, bearing,

behaviour, delivery and inflexion’. In short, anything which characterises his mode of giving

evidence but does not appear in a transcript of what he actually said.

In Mendy’s case (1976) 64 Cr. App. R. 4 CA7 The defendant was charged with assault. During

her trial the defendant’s husband was seen taking notes when a police officer was taking notes

4www.dfin.com/article/stressing-demeanor-credibility-continued-impacts-melidez-diaz-forensic scientists
5 The Modern Law of Evidence, Fifth edition, Adreane Keane
6 Teper v R (1952) A.C. 480 at 486 by Lord Normand
7 Mendys case

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with an unidentified man, when a police officer was giving evidence about the assault. The

inference was that it was an act aimed at priming the husband to give biased evidence in favour

of his wife.

The behavior of the witness in this case was part of his demeanour and was used to question his

credibility.

Demeanor of the Witness at Trial

Under our Common Law system of Litigation, the Trier of facts uses the witness’s demeanour

to determine the truth of the testimony.

Non- verbal communication from persons involved in a trial often cements whether a person is

accepted as trustworthy. Demeanour, Expressions, Mannerisms and tone all help the Trier

relate to a witness. Consistency, in terms of credibility and reliability is also important.

Confidence and cooperation with opposing counsel may give the impression that the

information coming from the witness is quite reliable, because he has nothing to hide.

Additionally, Major changes in a witness’s demeanour form direct examination to cross

examination often prove damaging to reliability, showing inconsistency and reducing the

credibility of witness’s testimony.

The demeanor of the witnesses has been believed to furnish trier and opponent with valuable

clues and the cross-examinations are effective in bringing out any imperfections of perceptions,

memory and narration.

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Often the sincerity of the witnesses may be observed from the way the witness sounds or looks.

For instance judges and juries look to the tone of voice, the so called ironic smile, the act of

swallowing prior to responding, the nervous twitch of the eyebrows, in attempting to evaluate

the credibility of a witness. No authority is required to support that the most difficult task, the

trier of facts are confronted with, is the basis of evaluation of credibility on basis of demeanour.8

In Laurentide Motels-v-Beaport,9 triers of fact are asked to consider ‘’the movements, glances,

hesitations, trembling, blushing, surprise or bravado’’ of witnesses.

However demeanor evidence cannot entirely be relied upon as it has some limitations:

I. It assumes that there is a normal range of reactions for stressful situations that is

applicable to all persons.

II. It assumes that outward appearance accurately reflects on individual’s state of mind or

emotional state.

This notion is illustrated in the case of R v M.T (2004) OJ no. 4366, where Doherty J.A.

recognized that although demeanor evidence is routinely admitted in criminal proceedings, its

probative value is in many circumstances more apparent than real. In this case the M.T did not

appear emotional at his baby’s funeral. The physician who had a great deal of experience of

observing parents who brought their sick children to hospital, made observations on M.T but no

application was made to exclude the evidence as being prejudicial than probative.

8 Lefou de Bergerac(The madman of Bergerac, Tout Simenon 17 page 459 and Liberty bar, Tout Simeon 17, pg 775 and 794
99 (1989) S.C.R 705

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The court held that the demeanor evidence should not have been admitted as there was no

norm against which M.T’s conduct could be meaningfully tested.

J.A Doherty concluded that the evidence lacked probative value and that outward appearances

at a funeral home, offer no reliable barometer of one’s grief.

In the case of Faryna-v- Chorny10, O. Halloran J.A, speaking on behalf of British Columbia

Court of Appeal, the court cautioned against the quick resort to demeanour as the foundation

for factual conclusions.

In Brethour-v-Law Society of B.C11 O.Halloran J.A said, the credibility of interested witness,

particularly in cases of conflict of evidence, must reasonably be subjected to an examination of

consistency of their stories with the probabilities that surround the currently existing

conditions, in short the real test of the truth of a story of a witness in such a case must be its

harmony with the preponderance of the probabilities which a practical and informed person

would readily recognize as reasonable in that place and under those conditions. A court of

Appeal must be satisfied that the finding of credibility in the tribunal of first instance is based

not on one element only to the exclusion of others, but is based on all the elements by which it

can be tested in the particular case.

In R v Parkin (2004), demeanor evidence was admitted as the evidence of distress was within

the structure of the case. The defendants’ counsel was however objecting to the admission of the

10 (1951) 2 W.W.R
11 (1951) 2 D.L.R 138 at pp141

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complainant’s distress when questioned by a woman police officer and the trial judge’s failure

to warn that distress may be feigned.

In R-v-Davidson12 it was expressly pointed out that the mere disbelief of an accused’s evidence

is not tantamount to the inference the accused lied.

In R-v-N.K.D13 His Lordship made plain, ‘’as the trier of fact, I endeavoured to pay close

attention to the principal witnesses during their testimony. In the end result, however, my

observation of the demeanour of the witnesses was unhelpful in determining the issues of guilt

or innocence.

Having considered the shortcomings of demeanour evidence, the court opined that ‘’In

evaluating the testimony of a complainant a number of factors are worthy of consideration

including the internal consistency of her evidence, the logic and the common sense of the

testimony in terms of the circumstances described, the consistency of the complainant’s

evidence against the standard prior statements made by her and against the defence evidence

and the exhibits filed.

Generally it is recognised that discrepancies in a witness testimony, in particular when

compared to prior statements of that witness out of court, may well be indicative of a truthful

witness, one who has not provided a scripted and rehearsed account, but rather one who suffers

12 (1974)
13 (1997) OJ No 3877

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from certain human frailties, for example confusion from the stress of being a witness, or a

dulled memory or other causes that can sufficiently affect the witness credibility and reliability.

Demeanor of the Witness during a Police Interrogation.

14Demeanor evidence obtained during police investigations is admissible in a court of law only

when the accused has been informed of her Miranda rights. These rights arose from the famous

case of Miranda v Arizona. Miranda rights is the requirement set by the Supreme Court of the

United States of America that prior to the time of arrest and any interrogation of a person

suspected of a crime, she must be told, that she has the right to remain silent, right to legal

counsel and the right to be told, that anything she says can be used in a court of law against her.

These rights are provided in the Bill of rights article 49 in the Kenya 2010 Constitution.

15In the case of Miranda v Arizona, The defendant Mr Miranda an immigrant, was arrested for

kidnapping and rape. Although the officers did not notify Mr Miranda of his rights, he signed a

confession after two hours of interrogation which included a statement that he was aware of his

rights. The defendant moved to dismiss the signed document.16

The court held that both inculpatory and exculpatory statements made in response to an

interrogation by a defendant in police custody will only be admissible at trial, only if the

prosecution can show the defendant was informed of the right against self-incrimination prior

to questioning by the police. This case has been a land mark case and used as precedent on so

14 The journal of American academy of Psychiatry and the Law

15 384 U.S 436 (1966)
16 www.wikipedia.org

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many other cases on the basis of admission of demeanour evidence obtained during police

investigations and interrogations.

In the case of Iowa v Decker 17The supreme court of iowa ruled that a police interrogation

videotape that had initially been ruled inadmissible, to be admitted for demeanour evidence

only.

In this case, Amy McNeal was dating Mr. Edward Decker. In 2004 when the relationship had

difficulties, M/s McNeal ended it permanently. She tried obtaining a no-contact order from the

local authorities but failed. One day as she returned home, she noticed the back door was open.

Decker appeared and attacked her by hitting her with a hammer on the head and stabbed her

with a knife on her chest saying she ruined his life. She tried dialling the police but he choked

her and only left after she promised not to contact the police. Decker later turned himself in to

the police who arrested him for attempted murder. He was interrogated and informed of his

Miranda rights. The interrogator verbally informed him of these rights and gave him a

document to sign that he understood anything he would say would be used against him in a

court of law, but he refused to sign saying he cannot read. At trial he entered a plea of not guilty

and pleaded the defences of insanity and diminished capacity. He moved to suppress video

statements made during the interrogation and Judge Douglas granted this motion. The state

offered the tape saying it should be allowed to demonstrate his demeanour shortly after the

incident given his insanity defence. The district court admitted it and he was convicted of

attempted murder, wilful injury and burglary. He was sentenced to 25 years in jail.

17 744 N.W 2d 346 (Iowa 2008)

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Remarks made innocently by one or more people in describing an incident might expose

some hidden conspiracy

Parties to a case or witnesses while describing an incident may make similar statements that

may lead the court to conclude that there is a hidden conspiracy or prove a fact in issue. Such

remarks albeit made innocently may act as corroborating evidence, and accordingly extinguish

doubt as to the existence or non existence of a fact in issue in the minds of the trier of facts.

The two cases below demonstrate this view:

In Mohammed Saed Akrabi v R, the appellant had been accused of indecent assault on two

different sets of boys. It was alleged that the head teacher (appellant) was in a habit of

manipulating the boys’ hands to rub his penis. This statement was independently made by the

two sets of boys.

The magistrate’s court held that the accused was guilty of the offence. On appeal it was held

that corroboration of the first set of boys could be used on the second set of boys.

In The Makin case the prisoners had been convicted of the wilful murder of an infant child

which evidence showed they had received from its mother, to adopt it, upon payment of a sum

inadequate for its support.

Held evidence that several other infants had been received by the Makin’s for adoption upon

payment of a sum, and whose bodies had been found buried in a similar manner in the gardens

of the several houses occupied by the prisoners was relevant to the issue which had been tried

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by the jury. This was gathered from the testimonies of the mother and the police officers at the

scene of discovering the bodies.18

Conclusion

From the foregoing, we observe that trials have been in use for a long time because they help

identify the weakness and strength in the plaintiff and defense arguments by giving the trier of

fact the opportunity to establish their credibility by way of appearance of the witness and

narration.

In the absence of trials, courts may have had to rely exclusively on the evidence garnered

during interrogation, which may be simply corrupted.

This is an aspect of evidence law that has stood the test of time and survived the exclusionary

character of evidence law and what this proves is that it is very vital and an important element

to be used in gathering evidence in trials.

18 John Makin and Another versus Attorney General

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