What is Hearsay
Hearsay evidence and the rules relating to it
are a very complex part of the law. Put simply, the term hearsay
covers any oral or written statements made by a person who is not
the witness testifying in court to prove that which is contained in
the statement. For example, the witness in a murder trial heard a
man say that he saw the accused stab the victim to death. The
statement is hearsay because it is being put forward by someone who
may not have seen the incident but heard about it, to prove that the
accused did stab and kill the victim. This article looks at
hearsay in criminal trials. If you are interested in
hearsay in civil cases then
please refer to the relevant article.
How can Hearsay be Identified in Criminal
Proceedings
Hearsay can be identified by asking a few
simple questions as follows:
- Which statement do I think may be
hearsay? (Identify the statement)
- Was that statement made out of court
instead of by a witness during the trial?
- What was the aim of the person who made
the statement? Was it to make another person believe what was
said in that statement or, to make another person or machine act
upon the facts as if they are true. If neither of these were
intended then the statement is not hearsay and can be admitted
as original evidence (evidence to prove that a statement was
actually made, for example, a witness testifying to having heard
the accused saying “I’m going to kill you” to the victim)
However, if the statement seems to have been made with either of
the aforementioned intentions then the next questions outlined
below must be proceeded to.
- What is the purpose of admitting the
statement?
- If the purpose of admitting the statement
is to prove that what is said is true, for example, the accused
said “I’m going to kill you” and the statement is needed in
court to prove that the accused had to have killed the victim
then it is hearsay. If the purpose of admitting the statement is
just to prove that it was made by the accused i.e. that he said
“I’m going to kill you” to the victim, then it is admissible as
original evidence.
Is Hearsay admissible evidence in a Criminal
Trial
There are a number of limited circumstances
where hearsay evidence will be admissible in a criminal trial, as
follows:
- Where all the parties (the Prosecution,
the Defence and, the Judge) all agree to the hearsay evidence
being admitted;
- Where admitting the evidence is in the
best interests of justice. For example, a witness may have heard
a person say “it was not the accused who stole the car, I saw
another person do it”. It may be decided by the judge that it is
in the best interests of justice for the evidence to be admitted
here as the accused may be wrongly convicted without it;
- Where there is a common law (law that
develops as a result of court decisions and which applies in
similar cases) exception;
- Where there is a statutory (contained in
a legal Act) provision under the Criminal Justice Act 2003 (CJA
2003) that renders the hearsay statement admissible.
What provisions of the CJA 2003 relate to
admitting hearsay evidence
Under the CJA 2003 hearsay is admissible in
the following situations:
- The person who made the statement which
is considered hearsay is not available to appear in court and
give evidence as a witness (CJA 2003 s.116);
- The statement was made in a business
document or a professional document (CJA 2003 s.117)
- The statement is a specific type of
statement that was made prior to giving testimony in court by
the witness that has been deemed admissible (ss.19 and 20 CJA
2003)
It is to be noted that even in a situation
where hearsay evidence is not admissible under any of the provisions
contained in the CJA 2003, it may still be admissible under the
provision contained in s.114 (1) (d) CJA 2003. This provision gives
judges discretion to admit hearsay evidence if they feel that it is
in the interests of justice to do so and, not doing so would
prejudice a party to the proceedings, whether that be the accused or
the prosecution.
Under what Common Law exceptions can Hearsay
be admitted in a Criminal Trial
Hearsay is admissible under any of the
following common law exceptions as contained in s.118 (1) of the CJA
2003 which has preserved a number of exceptions that have come about
in court decisions throughout the years:
- Public information that is contained in
public records and concerns a public matter which is available
for the public to make reference to;
- Reputation; if evidence to prove the good
or bad character of a person has been deemed admissible
(character evidence is not always allowed to be used in court
proceedings) then it may also be deemed admissible as hearsay
evidence. If the evidence is to prove or disprove that a certain
marriage exists, that a particular right exists or, the identity
of any person or thing then it is admissible under this hearsay
exception;
- An instance where a statement was made
in an event where emotions were running high, where the event
had happened very recently and a person who was involved in that
event made a statement regarding that event or, a statement was
made by a person regarding their physical or mental state then
it may be considered admissible;
- Where a confession has been made
admitting something relevant to the case being tried;
- Where someone else committing the crime
with the accused made a statement that proves that the accused
was also committing the crime (this is known as a common
enterprise);
- In the event where an expert, while
giving evidence, relies on the work or opinions of other experts
within their field
