Hearsay in Criminal Trials

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.

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For more information on:

  • What provisions of the CJA 2003 relate to admitting hearsay evidence 
  • Under what Common Law exceptions can Hearsay be admitted in a Criminal Trial