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BSA 2023 § 161 — What matters may be proved in connection with proved statement relevant under section 26 or 27

§ SECTION 161 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

What matters may be proved in connection with proved statement relevant under section 26 or 27

The absent maker’s statement can still be tested. When a statement admissible under § 26 or § 27 is proved — its maker being absent — any matter may be proved to contradict, corroborate, impeach or confirm it, just as if the maker had testified and been cross-examined.

How to read Section 161

When an absent person’s statement is admitted under § 26 or § 27, the other side may attack it — and the proponent support it — with the same evidence that would have been allowed had the maker testified.

The setting

A statement relevant under § 26 or § 27 is proved — the maker is not in court to be cross-examined.

What may be proved

All matters to contradict or corroborate the statement, or to impeach or confirm the maker’s credit.

The test

Whatever could have been proved if the maker had been called as a witness and denied the matter on cross-examination.

The bare Act

The section in its own words — a single, balancing rule.

Section 161 · verbatim

Whenever any statement, relevant under section 26 or 27, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

In short: under § 26 and § 27 the law lets in the statement of a person who is not before the court — someone who is dead, cannot be found, or is otherwise unavailable, or whose statement was made in an earlier proceeding. The obvious difficulty is that the maker cannot be cross-examined: the ordinary machinery for testing a witness is missing. This section restores the balance. Once such a statement is proved, all matters may be proved — to contradict or corroborate the statement itself, and to impeach or confirm the credit of the person who made it. The measure of what is allowed is a hypothetical: whatever might have been proved if that person had been called as a witness and had denied, on cross-examination, the truth of the matter suggested. So the absent maker’s statement is exposed to the same attack (bias, prior inconsistency, bad character) — and the same support — that a live witness’s evidence would face; it is neither immune from challenge, nor open to more than a live witness would have been.

→ This carries forward IEA 1872 § 158 — testing the credit of the maker of an admitted absent-person statement.

Glossary

statement relevant under § 26 or § 27

A statement of an absent person (dead / unavailable), or from an earlier proceeding, admitted under those sections.

the person by whom it was made

The (absent) maker of the statement.

contradict or corroborate

Challenge or support the truth of the statement.

impeach or confirm the credit

Attack or bolster the maker’s credibility.

as if called as a witness and denied on cross

The yardstick — what would have been admissible against or for a live witness.

§ 26 / § 27

Statements by persons who cannot be called (§ 26) and in prior proceedings (§ 27).

The picture

An absent maker cannot be cross-examined — so the law lets his statement be tested by the same evidence that would have met him in the box.

a § 26 / § 27 statement is provedits maker is ABSENT — no cross-examinationthe STATEMENTmay be CONTRADICTEDor CORROBORATEDthe maker’s CREDITmay be IMPEACHEDor CONFIRMEDthe yardstick: whatever could have met the maker had he TESTIFIED……and denied the matter on cross-examination (bias, prior inconsistency, bad character)neither immune from challenge, nor open to more than a live witness would be

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

what may be provedContradict, corroborate, impeach or confirm — as against a live witness

In one lineOnce a § 26/§ 27 statement is proved, any matter may be proved to contradict/corroborate it or impeach/confirm the maker’s credit — whatever could have met him on cross.
the absent maker’sstatementCONTRADICTdisprove the statementCORROBORATEsupport the statementIMPEACH creditattack the makerCONFIRM creditbolster the maker
Whenever any statement, relevant under section 26 or 27, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made,test the statement and its maker…the statement may be attacked or supported, and the maker’s credit impeached or confirmed.
which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.→ the yardstick: as if he had testified and denied itthe measure is live-witness admissibility — whatever could have met him on cross.
ExampleA dying declaration (admitted under § 26) names the accused. The defence may prove that the deceased bore a grudge against him, or had earlier said something inconsistent — just as it could have if the declarant were alive and cross-examined.
✗ Not thisThe section admits no more than would have been allowed against a live witness. It is not a licence to prove matter that could not lawfully have been put to the maker on cross-examination.

why it mattersRestoring the cross-examination the absent maker escaped

In one lineBecause the maker is not present to be cross-examined, this section supplies the equivalent testing — keeping the absent statement on the same footing as live evidence.
a LIVE witnessis cross-examined —bias, prior words, characterall tested in the boxa § 26/§ 27 statementmaker absent — no cross§ 161 supplies the same testingcontradict / impeach as if presentthe absent maker gains no unfair immunity from scrutiny
Whenever any statement, relevant under section 26 or 27, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.the balance restored, in fullthe whole rule ties the testing of an absent statement to what a live witness would have faced — no less, and no more.
ExampleThe prosecution proves a statement made in an earlier proceeding (§ 27). The defence may still impeach the maker’s credit — and the prosecution may confirm it — exactly as if he were giving evidence now.
✗ Not thisThis does not reopen whether the statement was admissible under § 26/§ 27 in the first place. It governs how, once admitted, its truth and the maker’s credit may be tested.

Connected provisions

§§ 26–27 · source

Statements of absent persons

§ 26 (persons who cannot be called — dead, unavailable) and § 27 (statements in earlier proceedings) — the statements this section tests.

§ 160 · back

Former statements to corroborate

Corroborating a live witness by his own earlier statement; § 161 tests an absent maker’s statement.

§ 162 · next

Refreshing memory

A witness may refresh his memory from a contemporaneous writing (his own or verified), a copy with leave, or — if an expert — professional treatises.

lineage

IEA 1872, § 158

Carried forward — testing the credit of the maker of an admitted absent-person statement.