The K-Zone: Conclusions

This article provides an overview of the law of hearsay evidence in criminal trials. In civil hearings, hearsay evidence is now generally admissible, provided that there is adequate disclosure, so the issues there are not particularly complex.

Those studying, and indeed practising, criminal law at the time I'm writing this (early 2005) are having problems -- the CriminalJusticeAct2003 is not yet fully in force, and it is being brought into force in stages. So it's quite difficult to be sure whether the old law or the new law applies in some circumstances.

What is hearsay?

Hearsay evidence is evidence contained in any out-of-court statement (oral or otherwise) made by a person and tendered into court to prove the truth of its contents. The standard example is Fred's telling Mary that he saw Bill stab Joe. If Fred testifies in court as to what he saw, this is strong, first-hand evidence. If Mary testifies as to what Fred told her, this is strong, first-hand evidence only of Fred's statement. As to whether Bill stabbed Joe, Mary's evidence is hearsay in that respect. The problem with Mary's evidence is that, however reliable Mary is as a witness, the jury has no way of establishing the reliability of Fred's report to Mary. Fred may have made it up, or hallucinated it, or simply been mistaken.

For these reasons, and others (see below), the common law has traditionally excluded hearsay evidence in criminal trials, with certain exceptions. A person (defendant or prosecutor) who wishes to adduce evidence that might be regarded as hearsay has to prove to the court that either (a) it is not, in fact, hearsay, or (b) it is hearsay, but should be admitted under an exception to the rule against hearsay.

If the designation `hearsay' could only be applied to simplistic situations of the Fred-told-Mary-that-Bill type, there would be far

fewer problem in the law of evidence than there presently are. Unfortunately, there are many borderline cases in which it is difficult to distinguish hearsay from first-hand evidence. Here are a few examples.

Although Mary's evidence about Bill is hearsay, what if Fred himself gave evidence, but had to ask Mary to refresh his memory before entering the witness box? Would his evidence therefore be hearsay? It would be hearsay if Mary gave it herself, and he is essentially repeating Mary's recollection. In reality, of course, the situation that arises more often is one in which the witness makes notes at the time of an offence, and then wants to refresh him memory from those notes during the trial. This issue is sufficiently complex that it merits its own entry -- see WitnessRefreshingMemory.

If Fred writes to Mary that he saw Joe stab Bill, and Fred is not available to testify, does Fred's written account amount to hearsay? If the reason for excluding documentary hearsay is that the maker of the first-hand statement is not available to testify, then presumably documentary hearsay should be exluded for the same reason -- this seems unobjectionable. But what about situations in which we can expect the documents themselves to be accurate? In MyersVDPP1965 it was held that even perfectly reliable documentary evidence was hearsay, if it was offered to prove the truth of its contents.

Can conduct amount to hearsay? For example, if Bill identified his assailant by gestures before dying of his wounds, could Fred give evidence of those gestures? In so far as those gestures amount to `verbal' assertions, that is, statements equivalent to words, then it appears that they are hearsay (ChandrasekeraVR1937). This seems unobjectionable, but what about conduct other than gestures? To the extent that this conduct asserts some fact, it would appear that it is hearsay.

If Fred saw somebody stab Joe, but could not identify that person but instead helped the police draw up a `photofit' image, would that image itself be hearsay if the person who drew it did not testify? At present, it would appear that it would not be considered hearsay, even though it is a document tendered to prove its contents, but this anomaly will be changed by the 2003 Act.

If Fred did not tell Mary that Joe stabbed Bill, but instead Mary tells the court that she overheard Fred asking Joe why he stabbed Bill, is Mary's evidence hearsay? Fred's question is not a statement and so, logically, cannot be hearsay. The jargon term for such evidence is an ImpliedAssertion. In RVKearly1992, the House or Lords remarked (obiter) that an implied assertion did_ amount to hearsay.

If Joe's defence is that he stabbed Bill in self-defence, because Bill had threatened to kill him, can Bill admit Joe's threats as evidence? This is a tricky one -- on the one hand Joe's threats are out of court statements, and they are being tendered as evidence by Bill. However, it seems that these statements are not hearsay, because they are not tendered to prove that they are true. For the purposes of self-defence, whether the victim was really threatening the defendant is irrelevant -- it is the defendant's state of mind that is at issue. So the truth, or otherwise, of the threats is not relevant.

Until the 2003 Act comes into force, there is, in fact, no statutory definition of hearsay. Whether something is hearsay or not has to be determined by comparison with existing case law. In practice, a great deal of time is spent (some would say `wasted') during criminal trials arguing about whether a certain piece of evidence amounts to hearsay or not.

According to s.114(1), the new law on hearsay applies to

``a statement not made in oral evidence [tendered as] as evidence of any matter stated...''

s.115(2) defines `statement' as

``any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.''

While s.115(3) defines `matter stated' in the following terms:

``(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been-

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.''

This is a fairly complex definition split, as it is, across three sepearate sections of the Act. Putting all the bits together, a simplified definition of hearsay can be distilled from the Act as follows:

Hearsay evidence is any representation of fact or opinion, made by a person by any means, for the purpose of causing another person to believe believe it, or to act as if it were true.

Comparing this defintion with the principles that can be extracted from the pre-2003 case law, it does not appear that the statutory definition will effect radical changes in the law, except in one area -- implied assertions. By limiting hearsay evidence to statements made with the purpose of causing another person to believe them, implied assertion are removed entirely from the scope of the exclusionary rule. Does this mean that a case such as Kearley would have to be decided differently? Maybe, but is still lies within the scope of the court to exclude evidence on the basis that it is irrelevant, rather than because it is hearsay.

Why has hearsay evidence generally been excluded?

The following arguments are generally offered by supporters of the exclusion of hearsay evidence. I state these arguments here without comment; for a discussion see the next section.

Since the person who made the made the hearsay statement is not in court, the jury is denied an opportunity to assess that person's demeanour in the witness box.

Hearsay evidence is not the `best evidence', as it is necessarily second-hand or worse. Error can arise in the transmission of the information between people.

Although the person offering the evidence in court is sworn, the statement itself was not made under oath.

It is easy to fabricate evidence if hearsay is admissible.

As a matter of principle, the accused has a right to face his accusers. If hearsay evidence is admitted, he is denied this right because the true accusers are not in the courtroom. If hearsay is excluded, anybody who wishes to make an accusation against the defendant is forced to do so to his face and in public.

The exclusionary principle is subject to exceptions which have been developed over the years to balance the interests of the defendant with the interests of society.

Admitting hearsay evidence favours the prosecution. The inequality of arms between prosecution and defendant does not support making the defendant's task any harder.

Much hearsay evidence will be of little weight. It should be excluded on the same grounds that irrelevant evidence is excluded -- the human mind can only assess a certain amount of information with any reasonable accuracy.

The most powerful argument in favour of excluding hearsay is that, by definition, the person who made the evidential statement is not available to be cross-examined on it. This means that the jury faces an additional task when assessing the validity of hearsay evidence. First, it has to determine whether the credibility of the witness offering the evidence in court is such that he or she should be believed; then, it has to determine whether, if the witness can be believed, the hearsay evidence itself is to be believed.

How cogent are the aguments against admitting hearsay?

Having heard the arguments for excluding hearsay, we can now examine how cogent each one is.

The jury is denied an opportunity to assess that person's demeanour in the witness box. The value of demeanour in assessing credibility is completely unknown. The Law Commission, in its report on hearsay, acknowledge the widespread support this argument has, but points out that, if there are other good reasons for admitting certain hearsay evidence, it would be inappriate to overrule those reasons on the basis of a factor which is not at all well understood.

Hearsay evidence is not the `best evidence'. Although hearsay may not be the best possible evidence, it may in many cases be the best available_ evidence. An obvious example is a statement made by a person now dead. Without bringing a ouija board into the courtroom, we aren't going to get an better evidence than hearsay. In addition, in many cases hearsay evidence will be superior to first-hand testimony -- Myers is the obvious example. It seems reasonable to admit documentary hearsay when it is clearly more reliable than oral testimony, and oral hearsay in circumstances in which error is very unlikely (e.g., DyingDeclaration). However, the argument that it should be admitted if it is the best available evidence is ill-conceived. There will be circumstances where the only evidence available on some point at issue is the statement of a two-year-old child or a person with a highly defective memory, but such evidence might be worse than nothing. There must be a threshold below which unreliable evidence is excluded, even if it is the best available.

The statement was not made under oath. The Law Commission rejected this argument, on the grounds that the efficacy of the oath is predicated on religious believe. Taking the Law Commission's view to its logical conclusion would mean that we dispense with the oath in courtroom proceedings altogether. Many people would argue that taking the oath makes a person more likely to give truthful evidence, because it reinforces the solemnity and significance of the occasion, as well as reminding the witness of the penalty for perjury.

It is easy to fabricate evidence if hearsay is admissible. Of course, any witness can fabricate evidence; the particular problem with hearsay is that the (absent) maker of the statement is unavailable to be challenged on it. The Law Commission took the view that the risk of fabrication is only very significant if the maker of the statement cannot be identified. It also suggested safeguards such as allowing evidence to be admitted with a view to undermining the credibility of the absent party. However if, for example, a prosecution witness `X' gives (false) evidence that the deceased murder victim told X that the defendant had threatened to kill him, it is not clear how the defendant can mount an adequate challenge to this evidence using any of the LC's safeguards.

As a matter of principle, the accused has a right to face his accusers. This is a widely-held view, and in some jurisdictions (e.g., New Zealand) it has constitutional status. That the defendant and his accusers come face-to-face is an important consideration in ensuring that justice is seen to be done, which is important if the criminal justice system is to command the respect of society. The importance of this principle is evident from the reluctance with which such special measures as video-taped evidence have been greeted by the courts. The Law Commission does not provide any counter-arguments to this argument in its report, beyond pointing out that there may be more important considerations than enforcing what it takes to be matters of principle.

The exclusionary principle is subject to exceptions which have been developed over the years to balance the interests of the defendant with the interests of society. In fact, the current (pre-2003) law on hearsay is full of illogicalities and anomalies, and there are clear cases where the exclusion of hearsay has not been in the interests of justice at all.

Admitting hearsay evidence favours the prosecution. In fact, sometimes the admission of hearsay evidence would favour the defendant, and there are cases where the defendant's case has been undermined by his inability to adduce hearsay evidence (e.g., RVBlastland1986).

Much hearsay evidence will be of little weight. A counter-argument is that the admission of hearsay in civil hearings does not seem to have caused any problems. However, there are two major differences between civil and criminal hearings in this respect. First, in most cases there is not so much as stake in civil hearings. Second, the triers of fact in civil hearings are nearly always judges -- people who have years of experiencing in assessing the relative weight of evidence. In criminal trials, the triers of fact are almost always lay people with no such experience.

Although number of authorities have expressed doubts about the efficacy of cross-examination, I suspect that anyone who has spent any time in the criminal courts will have seen a witness whose evidence seemed perfectly solid and credible during ExaminationInChief go to pieces during cross-examination. Moreover, Art. 6 of the ECHR provides that that accused has a right to ``examine witnesses against him''. Arguably, any provision of law that allows evidence to be adduced without challenge will fall foul of Art. 6. Consequently, even if one accepts that hearsay evidence ought to be more freely admissible, it has to be accepted that the defendant must be given every opportunity to challenge that evidence.

It should be clear from the above that the interests of justice do not favour the exclusion of all hearsay evidence in all_ circumstances. However, despite the views of the Law Commission on this matter, I don't believe that there is a compelling argument in favour of admitting hearsay where there is no better evidence available. Nevertheless, it seems sensible and just to admit it when the possibility of error or fabrication can be ruled out. We will return to these arguments for and against the exclusion of evidence later, when we look at the provisions of the 2003 Act.

What exceptions are there to the rule excluding hearsay?

The first exceptions to the exclusionary rule were developed by the courts on a case-by-case basis. These exceptions have, over the last hundred years or so, settled into a number of categories which have one of two factors in common factor: either the likelihood of error or fabrication is quite low, or the failure to admit the evidence would be hugely inconvenient to the court.

These exceptions are dealt with in detail in the article CommonLawExceptionsToTheHearsayRule but, in outline, the following types of hearsay evidence are admissible at common law (and continue to be admissible under the 2003 Act).

Public records

Res gestae statements (statements made by a person when he was so overwhelmed with the immediacy of events that the likelihood of fabrication can be discounted)

Confessions

The body of expertise drawn upon by expert witnesses

Evidence of a person's reputation

Statements made in furtherance of a common criminal enterprise

Certain trivial items such as a witness's name, address, and occupation

(`Dying declarations' were admissible at common law, but this category has not been preserved by the 2003 Act -- such declarations would now be caught by the statutory scheme of the Act)

After the mid-20th century, it became increasingly apparent that these categories were not inclusive enough to admit all the hearsay evidence that the interests of justice demanded -- the case of Myers was probably the turning point. In addition, opinion started to shift towards favouring the admission of hearsay evidence when, even though not particularly strong, nothing better was available. Consequently the CriminalJusticeAct1988 added a number of StatutoryExceptionsToTheHearsayRule. In outline, the following types of hearsay evidence are admissible (and this continues to be the case under 2003 Act)

Business records, including...

Records pursuant to a criminal investigation

Statements made by persons who are unable to attend court, because they are unfit to testify, out of the country, not locatable, unwilling to testify out of fear of recriminations, or dead.

The 2003 reforms

It is important to appreciate that the 2003 Act makes few changes to the types of hearsay evidence that are admissible. To be sure there is a marked change of emphasis, from prima facie inadmissibility to prima facie_ admissibility, but if a piece of evidence would never have admissible before the 2003 Act, most like it will remain inadmissible. There are three main exceptions to this statement.

Owing the the new definition of hearsay, implied assertions will tend to be admissible, provided they are relevant

There is a provision in s.114(1)(d) allowing any hearsay evidence to be admissible if it is ``in the interests of justice''. s.114(2) clarifies how this test is to be administered. This provision is clearly intended to avoid situations such as DPP v Myers, where evidence that is clearly relevant, probative, and reliable had to be excluded because it could not be brought within one of the established categories of admissible hearsay.

Admissible oral statements made by absent persons are now admissible in the same circumstances in which only documentary statements would have been admissible under the 1988 Act.

The following changes are made to the prima facie admissibility of hearsay.

Business documents are now prima facie admissible in circumtances in which they have required the leave of the court under the 1988 Act. This includes documents prepared for the purposes of criminal proceedings.

Statements made by absent witnesses are prima facie admissible in circumstances in which they would have required the leave of the court under the 1988 Act. However, where the witness is absent because of fear, it remains the case that leave must be obtained, and where the absent witness is unidentified, hearsay evidence will not be admissible at all.

The 2003 Act makes the following clarifications; these are not really changes at all, merely clarifications of the existing law.

A defendant may adduce a confession made by a co-defendant to exonerate himself of the offence, even if this confession would not be admissible by the prosecution. See ConfessionsAgainstCodefendants.

Hearsay evidence will be admissible if all parties agree to it's being admitted.

The 2003 Act does not attempt to bring admissible common-law exceptions to the exclusionary hearsay rule into the statutory framework. Instead, it preserves the entire body of case law relevant to these exceptions. This is odd in a way, because the 2003 Act changes the emphasis on statutory exceptions from prima facie inadmissibility to prima facie_ inadmissibility. Yet no such change has been effected, or can be effected, for the common law exceptions. So, for example, an oral statement made during a police investigation by a person who has since died, and recorded by the investigating office, will be prima facie admissible on the basis that it is a `business document'. However, it will be prima facie inadmissible_ on the basis that it is a DyingDeclaration.

It is difficult to make a strong case for the exclusion of all hearsay evidence, but arguments will no doubt continue to rage over exactly which evidence should be admitted and which should not. Given the motivation behind the Law Commission's report on hearsay, there was no realistic prospect that it would recommend the reduction of the amount of hearsay evidence that would be admissible. The most that could be hoped for by those opposed to the admissibility of hearsay was that it would recommend no substantial new categories of admissibility. This is, on the whole, what was recommended, and what the 2003 Act implemented. The increases in admissibility have generally been to correct anomalies (such as extending the admissibility of statements made by absent persons to include oral statements), or have been broadly welcomed (removing implied assertion from the scope of the exclusionary rule). Very little evidence that would have been absolutely inadmissible under the pre-2003 law will now be absolutely admissible, although the burden of proving the inadmissibility of defence evidence may have shifted to the defendant in some cases.

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