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Thursday, December 3, 2015

Grice on implied assertion


An "implied assertion" is a statement (or conduct) that implies some fact.

Did I invent that?


Did Grice invent that?


It's LEGALESE: Hart _analysed_ that.

There are varying opinions as to whether "hearsay evidence" of an implied assertion should be "admissible" in court to prove the TRUTH of the contents of the implied assertion.

Sounds odd?

Well, it's not that difficult.

Consider the question:

"Is there any charley?"

"Charley" is slang for cocaine.

Grice would distinguish between

"Is there any charley?" +> X

where X is whatever is IMPLICATED by the question. But then, to honour Strawson, Grice would also consider:

"Is there any charley?" >> X

where X is whatever is PRESUPPOSED by the question.

A question is NOT an assertion.

"Snow is white."

is an assertion. So the idea is that something asserted is implied by some utterance.

While an implied assertions IS considered hearsay, it is generally considered more reliable than a REGULAR statement or assertion, as an implied assertion is far less easy to fabricate.

------ But then, try to read and understand Dummett on "CONDITIONAL assertion"! and fail!

In fact, in R v Sukadeve Singh 2006 EWCA Crim. 660, 2 Cr.App.R 12, Rose LJ, gives the judgment of the court and says this at paragraph 14:

when sections 114 and 118 of the Criminal Justice Act 2003 are read together the sections,
in our judgment, ABOLISH

-- or as Popperian Palin would prefer, 'refudiate' --

 the common law hearsay rule
(save the components which are expressly preserved [This type of ceteris paribus defeater fascinated a defeatist like H. L. A. Hart!)
and create instead a NEW rule AGAINST hearsay which
does NOT extend to IMPLIED assertion.

-------------------------- SO in the NEW RULE, "implied assertion" is what Grice, emphatically, calls a "no no".

WHAT WAS SAID -- or as Grice expressed, "EXPLICITLY COMMUNICATED" -- by the telephone callers ("We want some charley") in Kearley is NOW admissible as DIRECT evidence of the fact that there was a ready market for the supply of drugs from the premises, from which evidence could be INFERRED an intention by an occupier to supply drugs.

Rose concludes:

"the view of the MAJORITY in Kearley, in relation to hearsay, has been set aside by the Act."

which is a pity, since, after all, it was a majority, even if apparently it was the minority who was right!

In Sukadeve Singh (a different case, 2006), the content of the utterances in each telephone entry was held NOT to be a matter stated within section 115 but to be one such monstrosity, that of AN IMPLIED ASSERTION, which IS NOW ADMISSIBLE because it is no longer "hearsay" --
the conceptual analysis of 'hearsay' has changed -- implied assertion does not count, and that is that.

But back to fourteen years earlier:

R v Kearley (1992) 2 AC 228.

R v. Alan Robert Kearley No.1 1992 2 A.C. 228.

"Kearley", as the case is abbreviated as, is a case that may be taken as concerning the rule on the conceptual analysis of "hearsay" and admissibility of evidence -- and it evokes the concept of an 'implied assertion' (Legalese if ever there was one). "Is there any charley?" was a question, an utterance in a telephone conversation. But this question carried an IMPLIED ASSERTION: that charley was available and the Kearley was selling charley.

The appellant (Chippie or Kearley) is charged with possession of drugs, and, worse, intent to supply.

Some of the police that arrests Kearley stays behind to search Kearly's house during which time Kearley receives seventeen telephone calls requesting for supply of drugs ("We want some charley").

None of the seventeen telephone callers was asked to provide evidence in court.

The police was.

That's the UK forya!

The counsel for the appellant argues that the evidence -- the utterances in the seventeen telephone calls -- is irrelevant because the evidence only illustrates the state of mind of each of the seventeen telephone callers, not the state of mind of the accused.

If they think there's charley, that's THEIR problem, not Kearley's!

This fits the Griceian paradigm:

"Is there any charley?" EXPRESSES A BELIEF that charley may be found there. Why call otherwise?

The counsel, to look intelligent, cites Subramaniam v. Public Prosecutor 1956, and Blastland and Woodhouse v. Hall 1980.

It is also contended that the number of calls -- seventeen -- does not make the evidence more relevant because if one telephone call is irrelevant, 17 calls are equally irrelevant.

This follows from a maxim that Grice admits is 'terse': "Be relevant!".

It is held in Wright v. Doe 1837 that evidence is only relevant if weight can be properly attached to it as a step towards PROVING an issue in the case.

This case -- Wright v. Doe, 1837 -- is concerned with a similar (if Victorian) issue, where the court holds that the sanity of the testator as expressed by a third party's letter addressed to the testator is INadmissible because of hearsay.

Britons use 'hearsay' broadly: a letter does not say nor hear, but so there!

The majority of the court (with two important lords, Browne-Wilkinson and Griffiths, dissenting) finds that the evidence is irrelevant.

And the majority find the evidence is irrelevant because it only shows or displays a belief manifested in the minds (or psychological attitudes, as Grice prefers) of the telephone callers that Kearsley would supply drugs.

The evidence says nothing about whether Kearsley actually supplies drugs.

This is ripe for Griceian analysis.

He usually taped conversations.

i. Is there any charley?

is surely different from the REGULAR assertion:

ii. I need some charley.

Surely (ii) does not ENTAIL that K has charley, so I cannot see why Browne-Wilkinson and Griffiths disagreed!

And even if the evidence IMPLIES the notion that Kearsley was a supplier of drugs, the evidence was EXCLUDED, by the conceptual analysis of "hearsay" in the hearsay rule, and thereby rendered inadmissible.

Griffiths dissents.

Griffiths says that he agrees with Lord Browne-Wilkinson that the appeal should be dismissed.

Griffiths sees the admissibility of such evidence as a matter of "common sense" -- "the least common of the senses," he adds for humorous effect.

As long as weight can be attached to the evidence, it should be admissible.

Is the sole possible relevance of the UTTERANCE ("We need charley") that by manifesting the telephone caller's belief that the defendant is a supplier?

Griffiths cites the argument of the counsel for the plaintiff in the case of Wright v. Doe, 1837, arguing that THE LETTER can be used to show an ordinary course of life, which is relevant to the case.

If a letter was written in a foreign language it would show that the testator knew that foreign language.

Griffiths believes that inferences will always be drawn.

Therefore, the existence of multiple possible inferences is immaterial to the admissibility of the specific evidence.

What is not immaterial is the consistency of the inferences.

In Blastland, all the inferences are equally consistent or plausible, whereas in the Kearsley case it is clearly more plausible that Chippie WAS supplying drugs -- hence the seventeen telephone calls.

According to Lord Ackner, in Blastland, if one was to draw a relevant fact by means of a NECESSARY IMPLICATION (rather than implicature) from a person that is not called a witness, it is INadmissible as hearsay.

But in the case of Ratten v. The Queen, Lord Wilberforce supports  the notion that the IMPLIED ASSERTION of a relevant fact is EXCLUDED by the hearsay rule.

The fact must be relevant -- or asserted directly, NOT IMPLIEDLY. No implied assertion, but REGULAR assertion. No implicit assertion, but explicit assertion.

The fact that in the current case the act of telephone calling the accused per se is completely irrelevant to his accusations.

Hence it is irrelevant.

Ackner nonetheless goes on to conclude that implied assertion should NOT be excluded as hearsay, thus dismissing the appeal.

Ackner believes that this evidence is INadmissible.

The evidence is an oral request for drugs to be supplied by the appellant.

The utterance ("Is there any charley?") was NOT made in the presence of the appellant, NOR in the a scenario were the appellant was the actual addressee, NOR by a witness.

The evidence "invites" the jury to draw the inference that the appellant was a drug dealer (vide Zwicky on implicature as an invited inference).

The evidence is only able to show that the telephone callers are under the impression that Chippie will supply drugs to them.

But such impression says nothing about whether Chippie actually does supply drugs to them, or INTENDS to supply drugs to them.

The evidence is evidence only as to the state of mind (or psychological attitude, to use Grice's parlance) of the seventeen telephone callers, who wished to obtain drugs and thought that the accused would supply them.

Therefore, even if the prosecution is able to get the seventeeen telephone callers to testify, it would still be INadmissible in court.

Oliver argued that a piece of evidence is relevant if it can be said to be probative.

The seventeen telephone calls are irrelevant.

The seventeen telephone calls must show that the accused IS supplying drugs.

But all they do is show that the telephone callers BELIEVED that the accused (or someone living in the same premise as the accused) is supplying drugs.

Oliver said that a layman's approach is not a good guide in a criminal trial.

Oliver adds, contra Griffiths, that using "common sense" as a determinate of relevance is inadequate.

The existence of potential custom does not establish intention of the supplier.

Browne-Wilkinson thinks that the seventeen telephone calls are relevant because they show people are resorting to the premises for the purpose of obtaining drugs from the accused.

Though such circumstantial evidence may be inadequate, the jury may nonetheless draw an inference from it.

I.e. an implied assertion from "Is there charley?"

Such existence of a potential market shows an opportunity for the accused to supply drugs.

Similarly, if a coffee-shop had people lined up outside to buy coffee, the chances are that the owner of the coffee-shop intends to sell coffee.

Just because the seventeen telephone calls were irrelevant does not mean they cannot go towards proving a relevant fact.

An implied assertion which is derived from irrelevant evidence can be relevant.

The number of calls -- seventeen -- is also relevant because it shows the size of the potential market hence the size of opportunity to sell.

If the callers were able to testify, Browne-Wilkinson sees no reason why they should be prevented, hence no reason to prevent the police.

The NZ case of Davidson v. Quirke 1923 is cited to show that calls were relevant.

The case was concerned with illegal gambling and the big number of telephone calls made to place bets.

So long as the fact is relevant in the sense that it tend to prove an issue of fact in the case it should be admissible. 

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