i.

INTRODUCTION

The aim of this essay is to analyze the article on the Jury and the Exclusionary Rules of
Evidence by Edmund M. Morgan in light of the exclusionary rules of evidence in Zambia. This
essay will start by defining the terms evidence and exclusionary rules of evidence. This essay
will then proceed to the discussion of the exclusionary rules of evidence as applied in Zambia
with reference to the article by Edmund M. Morgan. Thereafter, a conclusion will be held.

ii. KEY DEFINTIONS

The word evidence has no one definition however, has been given several definitions. Some of
the definitions given by eminent writers are appreciable. Thus, evidence is that which tends to
prove facts in issue or information which provides for belief that a particular fact or set of facts
are true.1 Therefore, evidence may be defined as information, facts and objects which are
presented to court to inquire into the existence or not of facts in issue for the determination of the
court. On the other hand, exclusionary rules of evidence are understood as admitting material
evidence brought to court while dismissing certain immaterial evidence. Furthermore, guidelines
to the trial judge to conduct its fact finding mission in the most effective, efficient and fair
manner. The considerations of fairness and justice that certain relevant evidence would not be
admissible based on the rules of law, public policy and precedent.2

iii. MAIN DISCOURSE

Generally, the exclusionary rule of evidence propounded by M. Morgan applies to certain
witnesses in Zambia. A witness is privileged when they cannot be compelled to answer questions
or present certain documents. Privilege means that either a witness himself or who he represents
will not be compelled to give evidence or will not be allowed until the person he represents has
given consent.3 It extends to answering of questions in court. Notably, S.6 and 7 of the
1 Alex Stein, The Foundations of Evidence Law, (New York, Oxford University Press, 2005),
24.

2 Ibd.

3 Emma, Washbourne. Key Facts: Evidence (London: Hodder Education, 2010),

p.110.

1
(Evidence (Bankers Books) Act4 provides that bankers may be compelled to disclose account
information where a court order has been issued but are generally not compellable in cases where
the bank is not a party5. This therefore is in relation to incompetence of witnesses that Edmund
Morgan espoused.

In professional privilege moreover, a clients lawyer cannot be compelled or allowed without

express consent of client to disclose oral or documentary communications passing between them
in professional confidence. This is another form of exclusionary rules of evidence. The rule is for
the protection of the client and is intended to facilitate free communication between advocates
and clients. No formal retainer need exist as long as a client consulted a professional lawyer. The
privilege only exists as long the relationship of lawyer client exists. 6 Therefore, this means that
the privilege is of infinite period. The protection is not lost after litigation. The privilege however
may be waived by the client in situations where communication is intended to facilitate
commission of crime or fraud.7

Moreover, no spouse is compellable to disclose information communicated during the course of

a marriage. The rule applies even after the marriage is dissolved. This is contained in S.157of the
Criminal Procedure Code.8 Thus in Crispin Soondo v The People9, the court stated that where 2
or more persons are indicted jointly, the wife or husband of any such defendant is not a
competent witness against any co-defendant. To render co-defendant or their spouses competent
for the prosecution, they must be acquitted or nolle prosecui entered in favor of them or have
pleaded guilty or are tried separately.
4 The Evidence (Bankers Books) Act. Chapter 44 of the Laws of Zambia.

5 Chapter 44 of the laws of Zambia.

6 Hatchard J. & Ndulo M. The Law of Evidence in Zambia (Lusaka; Multimedia

Publications, 1991), p.272

7 Ibd.

8 Chapter 88 of the Laws of Zambia.

9 (1981) ZR 302.

2
The right to remain silent is fundamental in evidence law. A witness is protected from answering
a question or producing a document that makes him or her criminally liable. The case of
Saunders v UK10 affirmed that the right against self incriminating evidence is an absolute right
which encompasses the right to remain silent or privilege against self incrimination. It also
includes the right not to answer questions and the right not to produce evidence. Moreover, in the
case of Re Mumba11 in which the accused was charged for corrupt practices; and whether he
was compelled to give self incriminating evidence. Chirwa J stated that an accused person
charged under the Corrupt Practices Act cannot be compelled to give evidence on oath, if he
elects to make an unsworn statement. Therefore, an accused person is excluded from giving
evidence that might implicate him before and during trial. Moreover, the accused has the right to
remain silent as provided for under Article 18 (7) of the constitution of Zambia12. The right to
remain silent includes the right not to give self incriminating evidence. This totally stands or
supports Edmund Morgans article on the exclusionary rules of evidence. Thus, the court should
not accept the evidence which is self incriminating.

On the same hand, Professor Ndulo observes that it desirable that a government seeking to
punish an individual produce evidence against them by its own independent labors, rather than
from the accuseds own mouth.13 This implies that the state should not resort to obtain self
incriminating evidence against the will of an accused but should find other means to investigate a
suspect. They should best find out the root cause of crimes and solve the causes. Moreover, the
court in the case of The people v Habwacha14 pointed out that the courts cannot on a point of
expediency admit self incriminating evidence which has been induced; less our whole system of
law enforcement degenerated and our whole structure of justice, indeed of society itself be

10 (1996) ECHR 65.

11 (1984) Z.R. 38 (H.C.).

12 Chapter 1 of the Laws of Zambia.

13 Hatchard J. & Ndulo M. The Law of Evidence in Zambia (Lusaka; Multimedia

Publications, 1991), p.272

14 (1971) Z.R. 154 (H.C.)

3
imperiled. The elite however are aware of their rights than the poor. They know they do not have
to answer questions hence they call lawyers to avoid interrogations. Furthermore, it is the junior
investigators who are overzealous seeking recognition and promotions from superiors. Therefore,
this should not be the basis or foundation in law for receiving self incriminating evidence.15

On the contrary, the case of Liato v The people,16 where the accused was charged with an
offence of being in possession of property suspected to be proceeds of crime under s.71 (1) of the
forfeiture of the proceeds of crime Act No. 19 of 2010. In this case the accused opted to remain
silent, invoking his right under Article 18 (7) of the constitution of Zambia. This can also be
related to the following latin maxim: Nemo Tetur Prodere Seipsum17 which means that no man
is obliged to convict him or herself or person should not give evidence which works against
them. Therefore, Austin Liato was however found guilty and convicted even though he did not
adduce self incriminating evidence to the prosecution. Consequently, the receiving of self
incriminating evidence is defeated by the right to remain silent under the constitution because a
person can still be convicted even without adducing evidence which is self incriminating.

The exclusionary rules of evidence are also applied in similar fact evidence. The general rule is
that it is not competent for the prosecution to bring evidence tending to show that the accused
has been guilty of criminal acts other than those for which he or she is being tried leading to the
conclusion that the accused is a person likely, from his criminal conduct or character, to have
committed the crime for which they are being tried. On the other hand, it was stated in Makin v
Attorney General for New South Wales18 that the mere fact that the evidence adduced tends to
show the commission of other crimes does not render it inadmissible if it is relevant to an issue
before the jury. Additionally, the principle was restated in DPP v Boardman19, that evidence of
similar facts can be admitted if it is more than barely relevant to the guilt of the accused.
15 Hatchard J. & Ndulo M. The Law of Evidence in Zambia (Lusaka; Multimedia
Publications, 1991), p.302

16 [2015] ZMSC 26.

17 S.H. Wilgoe, Evidence In Trials at Common Law, 270-, McNaughton Rev 1981.

18 [1894] A.C 232).

4
The exclusionary rule of evidence may not be applied in certain instances such as where such
evidence may be admitted include as evidence to show if acts alleged were designed or
accidental or to show identity of the person or rebut a defense open to the accused. However,
must be substantially relevant to the facts in issue. The discretion is on the judge to exclude
evidence of similar fact of it is not substantially relevant to facts in issue. In exercising the
discretion, the court should weigh whether the probative value of the evidence outweighs the
likely prejudice to the accused or party.20

On the same hand, in Esther Mwiimbe v The People, 21 the court held that the admission of
similar fact evidence is in the discretion of the trial court which will no doubt, among other
things, consider whether its evidential value outweighs its prejudicial effect. In this case, there
was nothing on the record to indicate that the learned trial judge had discussed the exercise of his
discretion. That being the case, and following the usual approach to criminal cases, we must
assume in favor of the appellant that had he considered the question, he would have exercised his
discretion in favor of exclusion. Moreover, in OBrien v Chief Constable of South Wales
Police,22 the court held that the test of admissibility of similar fact evidence in a civil suit was the
test of relevance; such evidence was admissible if it was potentially probative of an issue in the
action. The test of admissibility of similar facts in criminal proceedings required enhanced
relevance or substantial probative value because, if the evidence was not cogent, the prejudice
that it would cause to the defendant could render the proceedings unfair.

Generally, evidence of good character of a party need not be led as the law presumes that a party
is of good character until the contrary is proved. Furthermore, evidence of the accused bad
character is generally inadmissible and thus this applies to M. Morgans exclusionary rules of
evidence. Consequently, in Zambia Publishing Company Ltd v Pius Kakungu 23 the court
applied exception to the exclusionary rules of evidence of character; the exceptions are where the

19 [1975] AC 421.

20 Section 157 of the Criminal Procedure Code.

21 (1986) Z.R. 15 (S.C.).

22 [2005] 2 All ER 930.

5
defense leads evidence of good character, in which case he or she may be cross examined on that
evidence to impeach such evidence. Another exception is where an accused person has attacked
the character of a prosecution witness in which case the accused will be said to have removed his
shield. Where character is tendered to prove or disprove some other issue, it generally not
admissible although relevant. Furthermore, if a person has been tried and convicted of a previous
crime, it is against public policy that all future crimes should refer to previous crimes. In Melody
Chibuye v The People,24 where the court held that S. 148 (f) of the Criminal Procedure Code,
questions relating to the accused previous committals and convictions could only be admitted in
evidence where it can be proved that his guilt in those offences show that he is guilty of the
present offences and where the good character of the prosecution witness has been put in issue.

Formal oral or written statements of a person in or outside court may not be tendered in evidence
as truth of that state in the statement. The rationale for exclusion are that the maker of the
statement has not taken any responsibility to ensure its truth. The statement is not made on oath
nor is the maker subjected to cross examination to test their credibility. Truth depreciates in the
process of repetition. Such information may protract litigation because it potentially invites
untruths. It would encourage substitution of weak evidence for best evidence. 25 Such statements
are not admissible as evidence unless they fall under exceptions under common law and statute.

The exception is where a statement is not admitted as truth of what it says. In Subramaniam v
The Director of Public Prosecution26, where the court held that:

evidence of an out-of-court statement made in the absence of the accused to a witness is

hearsay and inadmissible when the object of the evidence is to establish the truth of what
is contained in the statement. It is, however, not hearsay and is admissible when it is
proposed to establish by the evidence, not the truth of the statement, but the fact that it

23 (1982) Z.R. 167).

24 (1970) Z.R. 28 (H.C.).

25Muvuma Kambanja Situna v The People,(1982) Z.R. 115.

26 1956, 1 W.L.R. 965.

6
 was made. And so, it is the purpose for which the evidence tendered that is the key to its
admissibility.

Opinion evidence of a lay person may be admitted when it relates to matters which cannot be
verbalized without expressing an opinion. Hence, in Blake v The People27, where it was stated
that in any event it did not offend the principle involved that laymen are not entitled to place
their opinion before the court as to the effect of a consumption of alcohol by him on an accuseds
ability to drive. Under cross-examination the hospital medical officer said that just by looking at
him the appellant appeared to be drunk, and was shouting and arguing with the police. This was
not offered as an expert opinion but was just as acceptable evidence as the opinion of Assistant
Inspector Mulundano that the appellant was drunk. 28 Therefore, in some instance, opinion
evidence is excluded from the court process and may not be admitted.

In Mwale v The People29, it was held that non-expert witness is competent to give evidence as
to his impressions of drunkenness based on facts. Therefore a medical doctor and an analytical
chemist, whose qualifications have been established and must be regarded as expert witnesses,
can give opinion evidence as to drunkenness and indeed ability to drive a vehicle based on
findings after a voluntary examination. Moreover, in Kenneth Mtonga and Victor Kaonga v
the People30, it was held that:

The Police or anyone responsible for conducting an identification parade must do

nothing that might directly or indirectly prevent the identification from being proper, fair
and independent. Failure to observe this principle may, in a proper case, nullify the
identification.

27 (1973) Z.R. 157.

28 ibd

29 (1975) Z.R. 163

30 (SCZ Judgment No. 5 of 2000.)

7
It should also be noticed that documentary evidence is applied to exclusionary rules of evidence.
The Evidence Act31 defines a "document" as any device, by means of which information is
recorded or stored, and books, maps, plans and drawings. As a general rule, a party who wishes
to rely on contents of a document and that of identifying it must adduce primary evidence of its
contents. This is spoken of as the most important survival of the best evidence rule. S.3 and 4 of
the Evidence Act32 provides that the person to produce the document to court must be:
The person who has personal knowledge of the matters dealt with by the statement; or
where the statement (in so far as the matters dealt with thereby are not within his
personal knowledge) in the performance of a duty to record information supplied to him
by a person who had, or might reasonably be supposed to have, personal knowledge of
those matters; an if the maker of the statement is called as a witness in the exception is
that the maker of the statement need not be called if the witness is dead, or unfit by
reason of bodily or mental condition to attend as a witness, or if is outside Zambia and it
is not reasonably practicable to secure his attendance, or if all reasonable efforts to find
the witness have been made without success.

Moreover, the exclusionary rules of evidence espoused in Morgan have much reference to insane
persons. Insane persons are not permitted to give evidence unless they understand the nature of
the oath.33 Further, depending on the nature of disability, an application may be made to court so
that the testimony of such witness is postponed until such a time when the incapacity has been
removed. Furthermore, evidence of children is taken with caution because of the special nature
of their testimony due to intellectual capacity. The degree of knowledge and intelligence will
vary from witness to witness.34 The competency of children depends on their ability to
understand the nature of an oath and the consequences of falsehood.

31 Chapter 43 of the Laws of Zambia.

32 Chapter 43.

33 Alex Stein, The Foundations of Evidence Law, (New York, Oxford University Press,
2005), 24-50.

34 Ibd.

8
It is imperative for a party who wishes to call a child witness to lay sufficient ground for
admission of their evidence or to satisfy the court of their competence. This is established in
what is known as a voire dire, which is a preliminary examination conducted by the court to
satisfy itself about the competence of a child witness.35 Section 122 of the Juveniles Act36, of the
Laws of Zambia provides for viore dire in assessing competence of a child of tender years. It
provides that:

Where, in any proceedings against any person for any offence or in any civil
proceedings, any child of tender years called as a witness does not, in the opinion of the
court, understand the nature of an oath, his evidence may be received though not on
oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the
reception of his evidence and understands the duty of speaking the truth; and his
evidence though not given on oath but otherwise taken and reduced into writing so as to
comply with the requirements of any law in force for the time being, shall be deemed to
be a deposition within the meaning of any law so in force: Provided that where evidence
admitted by virtue of this section is given on behalf of the prosecution, the accused shall
not be liable to be convicted of the offence unless that evidence is corroborated by some
other material evidence in support thereof implicating him.
Therefore, this means that normally, the evidence of children may not be received unless it is
corroborated or a connecting link is established. This is thus in relation to the exclusionary rules
of evidence in Morgan.

35 Chapter 53 of the Laws of Zambia.

36 Chapter 53 of the Laws of Zambia.

9
It is certain that the court will exclude evidence on public policy grounds. Relevant evidence
must be excluded on the ground of public policy when it concerns certain matters of public
interest considered more important than the full disclosure of the evidence in court. 37The
interests will vary from case to case and from time to time. The considerations are similar to the
rules governing privilege, the main difference being that privilege may be waived while public
interest or policy is an absolute rule. If the judge decides, on the balance, that the document
should be produced, it is advisable for them to see it before admitting it. The decision is for the
court and it may sometimes require examining the document to make the relevant
determination38. Otherwise, the party seeking to rely on it must show that it is relevant. The
objection must be made by the party wishing to rely on the public policy protection, his counsel
or the court.
The scope of the rule is unlimited. Many areas evolve as law and policy develop. Some of the
most classic ones involve documents by the state, discussions or proceedings in parliament,
police sources and so on. Section 25(1) of the State Proceedings Act 39 provides for protection
of state documents on grounds of public policy during discovery and inspection of documents to
be adduced as evidence in court. This also symbolizes the painstaking by Edmund Morgan in his
article that evidence of relating to public policy should not be admitted in the courts of law.

The grounds of privilege may also be by a minister as stated in section 25(3) of the State
Proceedings Act.40 Parliament deliberations may not be produced without leave of the House (s.
8 of the National Assembly (Powers and Privileges) Act). 41 The governing principle is the
general public interest in the matter. The fact that a document is marked confidential is not per se
an absolute bar to its production. In the case of Asiatic Petroleum Co. Ltd v Anglo-Persian Oil

37 Alex Stein, The Foundations of Evidence Law, (New York, Oxford University Press,
2005), 30-73.

38 Ibd.

39 Chapter 71 0f the Laws of Zambia.

40 Chapter 71.

41 Cap 12 of the Laws of Zambia.

10
Co. Ltd42, the court stated that other public interest considerations may be based on the character
of the source of information. The protection also extends to sources of police information.
However the claim for public interest must be weighed against the public interest in the
administration of justice, such that information should not be excluded if it tends to establish the
innocence of an accused person.

Daniel Chizoka Mbandangoma and The Attorney General, 43 where the plaintiff in a civil
action against the State applied that a witness for the defendant be ordered to disclose the identity
of a police informer on whose information the plaintiff was charged with theft by public servant.
The defendant objected on the ground that as a matter of public policy the identity of a police
informer is not required to be disclosed. It was held that the identity of police informers must in
the public interest be kept secret and is not required to be disclosed. This explains the Edmund
M. Morgan exclusionary rules of evidence as applied in Zambia that certain type of evidence
cannot be advanced or admitted in court.

iv. CONCLUSION

In conclusion, this essay defined exclusionary rules of evidence with reference to Edmund
Morgans article as admitting material evidence brought to court while dismissing certain
immaterial evidence. Furthermore, guidelines to the trial judge to conduct its fact finding mission
in the most effective, efficient and fair manner. This essay identified and explained that self
incriminating evidence, privilege (which may be professional or that between a husband and a
wife) as part of the exclusionary rules of evidence. The essay further noted documentary
evidence as part of exclusionary rules of evidence, hearsay evidence, evidence of children below
14 years and finally public policy as part of the exclusionary rules of evidence. Thus, the courts
do not consider such evidence as material or admissible to a trial process.

42 [1916] 1 KB 822.

43 (1977) Z.R. 334.

11
 BIBLIOGRAPGHY
Statutes:
The Constitution of Zambia 1991. Of the Laws of Zambia.
The Criminal Procedure Code. Chapter 88 of the Laws of Zambia.
The National Assembly (Powers and Privileges) Act). Chapter 12 of the Laws of Zambia.
The Evidence Act. Chapter 43 of the Laws of Zambia.
The Juveniles Act. Chapter 53 of the Laws of Zambia.
The State Proceedings Act. Chapter 71 of the Laws of Zambia.
Cases:
Blake v The People. (1973) Z.R. 157.
Chrispin Nsondo v The People. (1981) ZR 302.
DDP v Boardman. [1975] AC 421.
Esther Mwiimbe v The People. (1986) Z.R. 15 (S.C.).
Kenneth Mtonga and Victor Kaonga v The People. (SCZ Judgment No. 5 of 2000.).
Muvuma Kambanja Situna v The People,(1982) Z.R. 115.
Mwale v The People. (1975) Z.R. 163.
Melody Chibuye v The People. (1970) Z.R. 28 (H.C.).

Makin v Attorney of New South Wales. [1894] A.C 232).

Obrien v Chief Constable of South Wales Police. [2005] 2 All ER 930.

Re Mumba. (1984) Z.R. 38 (H.C.).

Saunders v UK. (1996) ECHR 65.
Subramanian v The Director of Public Prosecutions. 1956, 1 W.L.R. 965.
The People v Austin Liato. [2015] ZMSC 26.

12
The People v Habwacha. (1971) Z.R. 154 (H.C.).
Zambia Publishing Company Ltd v Pia Kakungu. (1982) Z.R. 167).
Books:
Hatchard, J. Ndulo, M. The Law of Evidence in Zambia. Lusaka; Multimedia Publications. 1991.

Stein, Alex. The Foundations of Evidence Law, (New York, Oxford University Press. 2005.

Wilgoe, S.H. Evidence In Trials at Common Law. 270-, McNaughton Rev 1981.

Washbourne, Emma. Key Facts: Evidence. London; Hodder Education. 2010.

13