Rule of Hearsay Exceptions

In everyday language, Hearsay is well known as unverified information heard or received from someone else or simply matters whose facts one is not certainly sure of, or simply rumour. In law hearsay means any oral or written statement made by someone who is not a witness in a case but which the court is being requested to accept as truth to prove a matter that has been stated in the case. This kind of evidence is generally inadmissible. The start of rule of hearsay has been traced back to the trial of Sir Walter Raleigh in 1603. Raleigh was accused and found guilty of high treason on the basis of evidence one person had heard another person saying that they heard Raleigh saying that he would kill the King by slitting the monarch’s throat. The miscarriage of justice in that case made English jurists to develop a hard and fast rule against evidence of hearsay. However in recent times several exceptions to the rule have been allowed by statute to provide for particular circumstances as I will discuss later in this essay.

The rules of hearsay in criminal proceedings are generally governed by Criminal Justice Act 2003 while in civil proceedings Civil Evidence Act 1995, section 1(2)a1: Hearsay means a statement made otherwise than a person while giving evidence in proceedings, which is tendered as evidence of matters stated. According to this definition, three ingredients are important to identify hearsay: a statement or assertion, made by a person other than when giving evidence in proceedings and which is tendered for the purpose of proving the truth of a fact or facts asserted. Statement here should be taken to mean any kind of representation, oral, written or sign language and gestures E.g. Chandrasekera v R2, where gestures made by a woman who was not able to speak were regarded as a statement.

The hearsay rule has often been regarded as one of the most complex and most confusing of the exclusionary rules of evidence3 Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made e.g. Subramaniam v Public Prosecutor4 In this case, appeal was allowed on the grounds that the appellant had not been given the opportunity to give relevant admissible evidence that terrorists had made threats to the accused causing him to apprehend instant death if he had not complied with their instructions.

If X, a neighbour states W a car owner that he saw Y driving off in W’s car, the Y is charged with stealing the car, this statement is relevant but the hearsay rule will prevent the prosecution calling W testify what he heard X saying. This is because the purpose for doing so is to request the court to accept that the facts stated as narrated by X are true. The rule thus obliges the prosecution to call X as a witness to give direct evidence that she saw Y driving off in the car.

The purpose for this rule is to filter evidence that may or not be admissible depending on how reliable it can be. There are several reasons such as ambiguity, insincerity, memory loss and defective observation, Language as used in everyday life is ambiguous and sometimes one word has several different meanings. There is always the possibility that only the original speaker of a statement really knows the meaning of what he said. The same statement brought to court by someone else may bring out a completely different meaning from what the originator meant.

The statement in question might be based on the maker’s flawed perception of an event to which it related and especially when the information has been passed around several times. There might be reason to doubt the sincerity of the statement maker. For example, the person who heard the statement might have been blind to the maker’s intended sarcasm. The witness may have had absolutely no intention that his words be taken as an accurate statement of fact. It could even be that the maker of the statement lied for other reasons but never intend the statement to be used in court. 5

Hearsay evidence may also be inadmissible on the grounds that the statement may be based on the maker’s flawed memory of events and if he is not in court to be cross examined, the reliability of the evidence can not be ascertained, as Lord Bridge of Harwich said in Blastard Arguments in favour of rule of hearsay are cantered on the need for accuracy of information and fairness to all parties in court proceedings as the following points illustrate.

Hearsay is not the best evidence:

Hearsay is usually only indirect secondary evidence of the facts in issue. The best evidence would be the testimony of the maker of the statement. Hearsay requires the fact-finder (the jury or the magistrate) to draw two inferences rather than one; as to the reliability of the statement maker and the reliability of the reporter of that statement. The existence of the rule encourages the parties to secure the best evidence available where there is a reasonable possibility of this being achieved. In some cases however, hearsay will be the best evidence available and in other hearsay may actually be more reliable than direct evidence7

Hearsay is not on oath:

The oath sworn by the witness is one of the guarantees traditionally relied upon by the common law as a means of ensuring the witness’s sincerity. The oath, it is suggested, serves as a reminder to witnesses both as to the solemnity and importance of giving evidence in court and that punishment awaits those who commit perjury. Consequently, it is argued, those who give sworn evidence are more likely to tell the truth and to give greater care in recalling memories of the events in question. These safeguards do not exist in relation to out-of-court statements.

Absence of Cross-Examination and the Difficulty of Assessing the Weight of Hearsay:

This is often regarded as the strongest and most important justification for the rule. Crossexamination is a significant means of testing and exposing weaknesses in testimony. It is claimed to be instrumental in revealing insincerity, mistakes and ambiguity in testimony. If these matters cannot be tested it is much more difficult for fact-finders to accord evidence its true probative weight.

Demeanour of the Witness:

Many regard the opportunity to observe a witness giving evidence to be valuable in assessing the reliability of that evidence. This view is based on the assumption that a person’s body language, confidence and the manner in which they deal with questions, the way in which they deliver the evidence and so on, provide important clues as to whether the person is telling the truth.

Risk of Manufactured Evidence:

The risk of manufactured evidence attaches to both hearsay and testimonial evidence. The testifying witness can be cross-examined in order to root out fabrication. This is not possible in the case of hearsay evidence and the risk increases in cases of multiple hearsay, where the statement has been repeatedly passed from one person to another.

Risk of corruption in Transmission:

Witnesses may misreport the statement of another. The error might lie in the non-effective use of language by the maker of the statement which results in the statement failing to assert its intended and true meaning. Alternatively, the vagaries of language are such that a statement, though an accurate communication of its intended meaning might also be capable bearing a further and unintended meaning with the danger that the listener imbues it with an unintended meaning. Moreover, the listener may simply mishear the message and hear what he expects or wants to hear.

Right to challenge and confront one’s Accusers:

This is an argument based on procedural rights. It is argued that the presence of and therefore the ability to challenge one’s accuser are instrumental in promoting a defendant’s fundamental interest to an accurate outcome of the trial. If subjected to trial an accused ought to benefit from procedures that maximise accuracy.

Secondly, it is suggested that rights of confrontation and challenge demonstrate official concern and respect for human personality. Maximising opportunities for parties to
participate in the process of decision-making promotes the legitimacy of the decision both in the eyes of the parties and of the public generally.

The application of the hearsay rule can lead to the exclusion of seemingly probative and reliable evidence: In Myers v DPP,9 D was charged with conspiracy to receive stolen goods and conspiracy to defraud. The prosecution sought to prove that D was stealing cars and changing identifying marks in order to pass them off as renovated write-offs. In order to prove that the cars sold by D were in fact cars that had been stolen, the prosecution called an employee in charge of records kept by the manufacturer of the cars. It was proposed that he give evidence from microfilms of cards filled out by production line workers which recorded the unique serial numbers stamped on the cylinder blocks during manufacture.

D successfully appealed against his conviction. The House of Lords held that the evidence of the manufacturer’s records was inadmissible hearsay. The purpose of adducing the evidence was to show that certain cars carried certain identifying numbers when they left the production line. He was giving this evidence in relation to numbers that were supposedly stamped on engines by some un-identified workers at the factory. However this decision was reversed by Criminal Evidence Act 1965 which provided for the admissibility of trade and business records which was ultimately been replaced by ss23-26 Criminal Justice Act 1988.

The rule applies to evidence tendered by either side. The rule applies both to evidence adduced by the prosecution and the defence.

The application of the hearsay rule to exonerating evidence that the defence wishes to rely on can appear to result in unfairness, but the, the courts have resisted any persuasion to admit such evidence: Sparks v R[1964]10, white man, was convicted of indecently assaulting a 3 year old girl. The girl did not give evidence at trial. The defence wished to call the girl’s mother to testify that about half an hour after the incident had taken place, the girl told her mother that ‘a coloured boy had done it.

However the Privy Council agreed with the trial Judge not to admit this evidence as a correct application of the hearsay rule.

Four main categories of admissible exceptions are provided for by section 114(1), Chapter two of Criminal Justice Act 2003: hearsay admissible by statute, hearsay admissible under any preserved common law rule, hearsay admissible by agreement and hearsay admissible in the interest of justice.

Almost as soon as the rule against hearsay had been formulated, the Judges recognized the necessity for some exceptions to the rule11. These exceptions evolved with developed of common law. In Northern Ireland, Article 22 of the Criminal Justice (Evidence) (Northern Ireland) Order 200412preserved a number of common law exceptions to the old rule against the admissibility of hearsay evidence. This means that in the specified circumstances, an out of court statement will be admissible as evidence of any matters stated in it regarding: Public information, Reputation as to character, Reputation or family tradition, Res gestae, Confessions, Admissions by agent sand expert evidence13,14. The rationale underlying all of these exceptions is that the statements made are likely to be more reliable because of the circumstances in which they were made. In R v Andrews, the House of Lords agreed that hearsay evidence of witnesses who had heard morrow say “I have been attacked by Peter O’Neil and Donald” was admissible under the res-gastae doctrine. S118 of the CJA 200315 Article 2016 sets out a series of categories under which first hand hearsay evidence, whether oral or documentary, will be admissible, provided that the witness is unavailable to testify for specified reasons. Such reasons are where the person is:

(a)Dead;

(b) Unfit because of bodily or mental condition;

(c)Absent abroad;

(d)Disappeared; or

(e)Unwilling to give evidence through fear.

The admissibility of documents as evidence and accompanying conditions is governed by article 2117. In the case of documents prepared for the purpose of criminal investigations or proceedings the statement will only be admissible if the supplier of the information is unavailable or cannot reasonably be expected to recall any of the matters dealt with in the statement.

In 1992 the House of Lords considered the case of R v Kearley18, The accused was charged with possession of drugs with intent to supply. Drugs were found at this flat. Telephone calls in which the callers were asking for drugs were received at the flat by the police officers. While the police officers were still at the flat 7 persons came seeking to buy drugs. The prosecution could not call the callers to court to testify instead proposed to call the police officers to give evidence of the telephone calls and visitors. The House of Lords ruled that this evidence was inadmissible because although the police officers were not going to assert that the accused had been dealing in drugs the implication drawn from their statements could not be treated differently from an assertion to that effect.

Other misgivings about application of the rule and its exceptions are that Hearsay can be one sided. For example when a shop keeps a record of goods sold, an entry in a book to show that an article was sold would be inadmissible to prove the fact of sale. But absence of an entry that a certain object was sold may be admissible to show it was not sold. Confessions are an exception to the hearsay rule as it stands. A confession is defined as ‘An assertion wholly or partly adverse to the person who makes it’

The rule of hearsay has received much criticism in recent times and many proposals for its reform. It has been critiqued for excluding probative evidence that ought to be admitted for the July’s consideration and for admitting misleading, unreliable or unfair evidence that ought to have been excluded.19 Section 1(1) Civil Evidence Act 1995, ‘In civil proceedings evidence shall not be excluded on the ground that it is hearsay’ however there are safeguards written in to the act such as sufficient notice be given to the other party that it is intended that hearsay evidence be used. The other party is therefore able to deal with any matters arising from the use of hearsay evidence and can balance their argument appropriately. The criminal law has been added to in recent years such as the Criminal Procedures and Investigations act 1996. This has introduced the obligations of primary and secondary disclosure of evidence and defence statements. Combined with a statute affecting the use and permitting of hearsay evidence this could give all the safeguards needed to prevent the exclusion of good quality evidence.

Bibliography
Cases

• Chandrasekera v R (1937)
• Myers v DPP [1965]
• R v Singh 2006
• R v Kearley 1992
• Sparks v R [1964] A.C. 964, PC.D
• Subramanian v Public Prosecutor [1956] 1 WLR 965

Instruments

• Criminal Justice Act 2003
• Civil Evidence Act 2005
• Criminal Justice (Evidence) (Northern Ireland) Order 2004 (N.I. 10)
• Criminal Procedures and Investigations act 1996

Books

• Dictionary of Law6th Ed. Edited by Elizabeth A Martin & Jonathan Law, Oxford 2006
• Allen Christopher. Practical guide to Evidence 4th Ed Cavendish 2008 pp 202
• Cross and Tapper on Evidence 10th Ed, Colin Tapper, Oxford 2004
• Kean Adrian. Modern Law of Evidence 6th Ed, Oxford 2006.
• Murphy Peter, Murphy on Evidence, Oxford 2008
• Roberts P, & Zuckerman A. Criminal Evidence, Oxford 2004
• Phil Huxley. Evidence (The Fundumentals) Sweet&Maxwell 2008
• Stockdale Michael. Evidence1st Ed, Sweet&Maxwell 2007