Hearsay evidence in criminal trials

What is hearsay?

The law relating to hearsay evidence in criminal proceedings is complex. Hearsay evidence is, essentially, any oral or written statements made by a person who is not testifying in court but those statements are relied upon to prove that which is contained in them.

For example, a witness in a murder trial heard a man say 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, but is relied upon to prove that the accused stabbed and killed the victim. The rules relating to hearsay in civil cases are different.

How is hearsay identified?

Hearsay can be identified as hearsay by considering the following issues:

Which statement do you think may be hearsay? Was that statement made outside of court proceedings and not 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 someone else act upon the facts as if they are true? If neither of these were intended, the statement is not hearsay and can be admitted as ‘original’ evidence.

What is the purpose of admitting the statement? If the purpose is to prove that what was said is true, (for example, the accused said: “I’m going to kill you”, and this statement is needed in court to prove that the accused killed the victim) then it is hearsay. On the other hand, if the purpose of admitting the statement is to prove that the statement was made by the accused, then it is admissible as original evidence.

Is hearsay admissible evidence?

The general rule is that hearsay evidence is not admissiblein a criminal trial. However, there are limited circumstances in which hearsay evidence is admissible:

  • Where all parties (eg. the prosecution, the defence and the judge) agree to the hearsay evidence being admitted.
  • Where admitting the hearsay 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”. The judge may decide to admit the evidence in the interests of justice.
  • Where there is a common law exception.
  • Where there is a statutory provision under the Criminal Justice Act 2003 (CJA 2003) making the hearsay statement admissible.

What does the CJA 2003 say about 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 (section 116).
  • The statement was made in a business or professional document (section 117).
  • The statement is a specific type of statement made prior to giving testimony in court by the witness that has been deemed admissible (sections 19 and 20).
  • The judge also has a discretion to admit otherwise inadmissible hearsay evidence in the interests of justice and where not doing so would prejudice a party to the proceedings (section 114 (1)(d)).

Common law exceptions allowing hearsay evidence

Hearsay is admissible under any of the following common law exceptions (also set out in section 118 (1)) CJA 2003):

  • Public information contained in public records and which 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) then it may also be deemed admissible as hearsay evidence.
  • 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 where a statement was made by a person regarding their physical or mental state – it may be considered admissible as hearsay evidence.
  • Where a confession has been made admitting something relevant to the charge/s.
  • 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.

Section 114(1)

The court will only exercise its discretion under s114(1) where admissibility under other statutory provisions or common law rules is not permitted. The court must consider various factors in considering whether to exercise its discretion in favour of allowing hearsay evidence to be admitted under s114. These factors include its probative value to a matter in issue; the circumstances in which the statement was made; the reliability of the maker of the statement and of the evidence of the making of the statement itself; and whether oral evidence of it can be given (and, if not, why not).