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.

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