Glossing-over the Approver or the King's Evidence

• Jurisdiction: Rhode Island,United States
• Citation: Vol. 53 No. 5 Pg. 011
• Pages: 011
• Publication year: 2005

Rhode Island Bar JournalVolume 53.

53 RI Bar J., No. 5, Pg. 11b (March/April 2005). Glossing-Over the Approver or the King's Evidence

March/April 2005
pg. 11

Glossing-Over the Approver or the King's Evidence

Edward John Mulligan, Esq.

Edward John Mulligan practices law in Rhode Island and Massachusetts.

Two common law cases, R. v. Farrell, [1831] NSWSC 44 and, Benedetto v. R [2003] UKPC 27, which are antipodal in time and distance, still serve as beacons that give luminance in the area of approver or accomplice testimony. Withal, Rhode Island, in line with federal law, (fn1) has eschewed the common law concept that accomplice testimony is not of credible value nor must it be "scrutinized." See State v. Bertoldi, 495 A.2d 247 (R.I. 1985) and State v. DeMasi, 413 A.2d 99 (R.I. 1980).

Of course, accomplices, who are sworn to tell the truth, can be argued to "believe quite freely that which they want to be true." G. Julius Caesar, a profound observer of mankind, and a colossus in history, who along with the Republic, was done in by accomplices - of whom it was said that they "are all honorable men" - recorded well-over two thousand years ago that "men generally believe quite freely that which they want to be true." (fn2) That recordation has also been ascribed to opinions of expert witnesses.

Farrell concerned three defendants, before the bar of New South Wales, involved with the crimes of bank robbery and receiving stolen property. Interestingly, the Crown's witness, bore the eponym of William Blackstone. The main issue in Farrell dealt with the incompetency vel non of the witness, Blackstone, who was a convict attaint (a witness who because of his felony conviction was considered stained or tainted), to testify - in a colony jurisdiction outside of the mother country.

Dr. Wardwell, who received his doctor of laws degree from Cambridge, and Monsieur Therry represented two of the defendants. Both of these advocates represented a number of criminal defendants, and were leading members of the Australian criminal bar.

Two of the prisoners, Farrell and Dingle broke and entered into the dwelling of Thomas McVitie, Esq. at Sydney and stole above the amount of five pounds - a capital offense. The remaining prisoner, Woodward, received part of the stolen goods. Woodward was represented by Monsieur Foster.

The case was tried before Judges Forbes, Stephen and Dowling and before a jury. (fn3) The trial was a "long and elaborate trial, which occupied ten hours."

During the trial, counsel raised the objection that Blackstone was a convicted felon, for an offense committed in the colony, and as the principal witness and approver, (fn4) who had not received a pardon; was not a competent principal witness. The learned Judge overruled the objection, but left the question open, should the jury return a conviction. (fn5) The jury found all prisoners at the bar guilty. The next day, they were brought up to receive sentence, the objection to the approver's testimony was again raised as to his competency under established English law to testify.

The defense counsel argued, that under the Law of England, that this Blackstone, who was an accomplice, was also an incompetent witness, since he was a convicted felon. (fn6)

The learned Judges, after consultation for some time, stated they would consider the point. The prisoners were remanded and were brought back for the Saturday session, of June 23, 1831.

At that session, Chief Judge Forbes said:

Prisoners at the bar - You are placed there to receive the judgment of the Court. . . At trial. . . one William Blackstone was put in the box, as a witness for the prosecution; it was admitted he was an accomplice - he was objected to. . . The presiding Judge, however, overruled the objection and admitted him to be sworn and examined as a witness. - his evidence went to the jury. (p 6 of dec.)

The Chief Judge then stated: "The only question raised in this case is, 'Whether such a person, proved to be an attained felon, and his person identified in the witness-box, could be admitted as a competent legal witness, in this Colony."'

The Chief Judge said:

It is my misfortune to entertain a different opinion on this point from that of my learned brethren. . . and it is with pain, therefore, that I am called upon to express the grounds upon which that opinion rests. . . and I must not shrink from the performance of a public duty. . . however, I lament that it is at variance with the opinions entertained by my learned coadjutors. The rule of law is too clear for argument that an attainted felon cannot be sworn as a witness (citing case law). . . The test law on this subject is thus briefly laid down in Blackstone's Commentaries: - 'All witnesses. . . except such as are infamous, or such as are interested in the event of a suit. . . may be challenged . . . and therefore never shall be admitted to give evidence to inform that jury with whom they were too scandalous to associate.' (pp 6 & 7 of dec.)

The Chief Judge went on to cite the grounds and reasons expressed by Lord Chief Baron Gilbert and his work on evidence, which says:

Every plain and honest man, affirming the truth of any matter under the sanction of an oath, is entitled to faith and credit; so that, under such attestation, the fact is understood to be fully proved. But when a man is convicted of falsity and other crimes against the common principles of honesty and humanity, his oath is of no weight, because he hath not the credit of a witness. . . but where a man is a 'notorious and public criminal,. . . he is rather intended as a man profligate and abandoned. . . because the credit of his is overbalanced by the stain of his iniquity.' All the writers from Bracton and Fleta, down to Blackstone. . . will be found to lay down the same principle. . . It is laid in the foundations of the Constitution. It is declared by the Magna Charta, that no free man shall be interrupted in his person or property, except by the judgment of his peers . . . The same objection that would exclude a tainted Juror from the panel, would exclude a tainted witness...