Critically discuss the hearsay rule and the exceptions to it

In short, a hearsay statement is one made out of court, by any medium, for the purposes of causing a person to act as if the statement were true, and which is tendered as evidence that it is true.

The general principle: hearsay is excluded

Under the 2003 Act, it remains the case that hearsay evidence (so long as it fits the definition in ss.114-5) is not admissible. However, as is the case now, certain categories of hearsay are admissible, and these categories are largely unchanged in the new law. What is different, however, is that the categories that are included are automatically admissible, subject to a discretion to exclude them. In the pre-2003 law, they are admissible only by the discretion of the court.

Because the 2003 Act abolishes all common-law principles concerning hearsay evidence, it follows that any evidence that does not fit the new definition of hearsay is admissible. It is not_ the case that its admissibility falls to be determined under the old principles.

The first exception: witness unavailable

According to s.116, hearsay evidence is automatically admissible if the maker of the statement is not available for any of the following reasons, and the maker can be identified.

  He has died

  He is unfit to be a witness (because he is ill or insane)

  He is outside the UK and it is not reasonably practicable to fetch him

  He cannot be found

In addition, hearsay evidence from an identified souce is admissible, with the leave of the court, if

* He does not give oral evidence through fear.

s.116(4) sets out the conditions under which leave will be granted to allow hearsay evidence from a witness who does not testify out of fear. It has to be `in the interests of justice', and the court must have regard for the difficulty of challenging the evidence, and whether a speicial measures direction would be more appropriate (see).

This category of hearsay evidence was formerly admissible under the CriminalJusticeAct1988, but only at the discretion of the court.

Note that hearsay evidence from unidentified sources is not only not automatically admissible, it is not admissible at all under this section. Some jurisdictions do allow hearsay from unidentified sources in some cases, but this concept has never found favour in the UK. However, it is not true to say that the 2003 Act never allows for the admissibility of hearsay from unidentified sources; more on this later.

The second exception: business documents

Under s.117, a statement created or received in the course of a trade, profession, or office is admissible if

  The person who made the statement might reasonably be expected to have knowledge of the matter,

  Oral testimony of the maker would have been admissible (this prevents, for example, the comments of small child being made admissible simply because they were recorded by a constable)

In addition, a statement made during a criminal investigation is admissible if

  The person who made the statement cannot be expected to have any recollection of the matter.

So if a person makes a statement to a constable concerning, say, the registration number of a car involved in a crime, the constable's written note of the registration number will be admissible, even though the person who provided it will long since have forgotten.

This additional ground for admissibility -- that the statement was made in a criminal investigation -- can be excluded by the court if it appears to be unreliable. However, provided the requirements of s.117 are met, no discretion is provided to exclude other business documents. However, since the 2003 Act does not disturb any existing discretion of the court to exclude prosecution evidence on the basis that it is prejudicial, it is only defence evidence that is unconditionally admissible under this section.

This category of hearsay evidence was formerly admissible under the CriminalJusticeAct1988, but only at the discretion of the court.

The `safety valve'

In addition to the two categories of hearsay evidence for which there is a presumption of admissibility (absent witness and business documents), the court has an overriding discretion to admit hearsay under s.114(1)(d) where it is `in the interests of justice' to admit it. The inclusion of this provision, which the Law Commission refered to as th `safety value' is in recognition of the fact that no set of rules will suffice to do justice in all cases. Section 114(2) provide a long list of factors which the court must take into account when deciding whether to exercise this discretion. These are mostly common sense. For example, the court must consider how easy it will be to challenge the evidence, what other evidence is available to prove the same issue, how relevant it is, how reliable the maker of the statement appears to be, and how prejudicial it would be to the defendant. Note that there is no specific limit on the exercise of this discretion. The court can, in principle, admit evidence from unidentified sources under this section if it appears just to do so.

This `safety valve' provision is entirely new in the 2003 Act. Previously, courts had no discretion to admit hearsay where it did not fall into one of the existing categories of exceptions to the hearsay rule. This led to a situation where appeal courts, faced with a manifest injustice, had to disguise the admission of hearsay as something else. On the one hand, such judicial sleight-of-hand should not longer be necessary; on the other, one has to wonder whether such a broad discretion will allow for proper certainty in the law. In its report on hearsay evidence, the Law Commission cited the erratically-exercised discretion under the as a good reason to broaden the admissibility of hearsay; but s.114(1)(d) provides an unparallelled opportunity for inconsistent precendents to be created.

Multiple hearsay

Hearsay evidence to prove that an earler hearsay statement was made (`multiple hearsay') is not admissible under the `absent witness' exception (except by agreement of the parties). It is admissible under the `business documents' exception, provided that all the documents in the chain would be admissible. It is also admissible if admitted under the new provisions in s.119 and s.120. These provisions allow for statements that are admitted in evidence to prove or rebut an allegation of

fabrication to stand as evidence of the truth of their contents (and not just of evidence of the witness's credibility or lack of it). Now, such statements can be admitted as evidence that a hearsay statement was made. This is not a complex provision, although it seems like it. If a person is allowed to take the witness stand and give evidence of a hearsay statement that was made to him, a previous statement that was made by that witness, and is admitted, has the same evidential status as his oral testimony. So if the witness can evidence a hearsay statement in testimony, his previous statement can evidence it as well.

Hearsay admissible by agreement

Hearsay evidence, including multiple hearsay, is automatically admissible if all parties agree to it being admitted. This is technically a new provision but, in practice, it is likely that a great deal of hearsay evidence slipped into the jury's hands because counsel did not challenge it, or even notice it.

Discretion to stop the proceedings

s.125 provides that a court may stop proceedings if it appears that the prosecution case rests wholely or partly on hearsay, and a conviction would be unsafe.

Although the general principle is that  evidence is inadmissible to prove the facts it expresses, over the years the courts have developed a number of exceptions. Although the  make some radical changes to the law regarding hearsay, it expressly preserves (s.118) many of these common law exceptions, including the following:

• A public document or record (see )
• a  utterance (which now has a statutory definition);
• a ;
• The body of expertise drawn upon by an expert witness
• Hearsay evidence of a person's reputation
• A statement made by a party to a common criminal enterprise
• Certain trivial matters such as evidence of name and address
• Note that merely being listed in s.118 does not make the evidence admissible; it must still satisfy the common law rules on admissibility. However not being listed in s.118 is definitive that a particular piece of hearsay evidence is not admissible on common law principles. Some common-law exceptions have not preserved by s.118. One is the DyingDeclaration. Such a declaration would now be prima facie admissible under s.116(2)(a), as an oral statement made by a person who is unable to give evidence in person on account of his being dead. However, at common law a statement made against a persons own (pecuniary) interest was admissible in certain circumstances; there appears to be no equivalent in the new Act.

The hearsay rule ought to be abolished. Its exceptions are complex and lead to the arbitrary exclusion of cogent evidence' Discuss Plan Intro Argument for hearsay Reasons . Law commissions findings Exceptions and exclusions Against Statute. Safety valves. Law commission Zuckerman report conclusion Insert introduction Definition of the hearsay rule: 'No-one seems to dout that the hearsay rule as applied in criminal cases in this country is imperfect' (Tapper, C) Cross & Tapper: A statement other than one made by a person giving oral evidence in the proceedings is inadmissible as evidence of any fact [or opinion] stated.1 Section 1(2)(a), Civil Evidence Act 1995: 'Hearsay' means a statement made otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated. Identifying hearsay There are three ingredients of hearsay: (1) A statement or assertion (2) Made by a person other than while giving evidence in the proceedings (3) Which is tendered in order to prove the truth of some...

THE HEARSAY RULE AND ITS EXCEPTIONS
"There are a thousand thoughts lying within a man that he does not know" (William Makepeace Thackeray)

    Hearsay is "second-hand" information.  It occurs when a witness testifies NOT about something they personally saw or heard, but testifies about something someone else told them or said they saw.  Hearsay usually involves an attempt to get some crucial fact entered into evidence that cannot be entered into evidence by any other means.  The constitutional due process danger that this represents is that it deprives the other side of an opportunity to confront and cross-examine the "real" witness who originally saw or heard something.  The confrontation clause of the Sixth Amendment has never been interpreted so literally as to preclude hearsay evidence.  Care must be taken to avoid hearsay from consisting of rumor, gossip, or scuttlebutt.  There are times when hearsay evidence is perhaps the right thing to do -- as in cases where a young child has been molested -- and, there are times when hearsay evidence is the only thing to do -- as in cases where the original witness has died or is unavailable.  At common law, there were five well-established exceptions to the hearsay rule, and these exceptions have been a part of the hearsay rule from the beginning.  Today, there are almost three times as many exceptions (10-20 depending upon how you do the counting), and it's not that hearsay exceptions are a growing area of evidence law, but only that more practical reasons exist making it necessary to add more exceptions.  The hearsay rule, its exceptions, and hearsay evidence are some of the most defining features of Anglo-American criminal justice.  It is appropriate to think of the hearsay rule as the main exclusionary rule in all of evidence law.

HISTORY AND DEFINITION

    The origins of the hearsay rule can be traced to the  in 1603, who was found guilty of high treason on the basis of testimony that someone had overheard someone else say they heard Raleigh would slit the King's throat.  The disgrace of this trial and its wrongful conviction led English jurists to develop a hard and fast rule against hearsay evidence, with hearsay defined as the words of a stranger to parties; that is, the words of someone to which neither the State nor the defendant are privy.  Not being privy to the person who spoke the original words means that an "out-of-court" statement is being repeated in court by a person who overheard another person outside of court make a statement, and indeed, this is the common law definition of hearsay (Klotter & Ingram 2004).  However, there is more to it, and what matters most is the purpose for which the words are used.  NOT ALL OUT-OF-COURT STATEMENTS ARE HEARSAY.  Scholars frequently distinguish between (a) "assertion-centered" hearsay and (b) "declarant-centered" hearsay, as so do the Federal Rules of Evidence.  FRE Rule 801 is as follows:

    The first type -- (a) assertion-centered hearsay -- is intended solely to prove the truth of some matter or crucial fact in the trial.  For example, if a witness is called to say they heard the defendant was out-of-town at the time a murder was committed, this attempt at an alibi defense would be based on hearsay.  The second type -- (b) declarant-centered hearsay -- depends upon the credibility of the witness.  For example, if a scientific (forensic) expert is called to testify about the supposed reputation some scientific technique enjoys in the scientific community, then their testimony may or may not be hearsay depending upon the qualifications and credibility of that expert.  There are many kinds of cases, such as libel, slander, and copyright infringement, where a credible hearsay witness is often needed to establish, in that witness' opinion, if damage or harm was widely perceived by a larger community.  In criminal cases, the most common scenario involves type (a)(2) hearsay, in which the nonverbal conduct of a witness gives away, betrays, or impeaches their true intent, for example, when an alibi witness is found to be demonstratively lying because they have some reason to lie, or had some gift or present purchased for them by the defendant.  In such cases, this kind of impeached hearsay evidence might be admitted at trial and used against the defendant since the witness never intended to assert the truth or the nonverbal conduct that was going on behind the scene.  Likewise, when the government relies upon impeachable hearsay evidence, there are grounds for reversible error of a conviction.

PROOF, TRUTH, AND DOUBT

    It should be obvious that the hearsay rule is intimately involved in legal inferences of "proof" and "truth" as well as all things relating to witness reliability, sincerity, perception, and memory.  You'll also find the interesting notion of "trustworthiness" tied into probabilistic conceptions of reasonableness and doubt in this area of evidence law.  Hearsay is an alternative to formal proof, but it is not necessarily non-logical proof.  Legal reasoning is quite deductive in this area, requiring consideration of ulterior motive by working backwards from the actual assertion or declaration, as well as consideration of whether or not the non-hearsay purpose of any such evidence drowns out the hearsay purpose.  Hearsay evidence is powerful evidence, and more often than not, contains implied assertions that weigh heavily on matters of guilt, or at least weigh heavily as inferences in the minds of the jury.  In some cases, hearsay may even contaminate a case from the beginning of a police investigation.  Consider the example of U.S. v Hernandez (1985):

    The above case illustrates the importance of conduct as implying an assertion, or type (a)(2) hearsay.  The Federal Rules of Evidence grant special importance to conduct in determining whether something qualifies as hearsay or non-hearsay (Falknor 1961).  It is NOT hearsay if a person acts in a way consistent with their belief but without intending to express or communicate that belief.  It IS hearsay when that person's conduct is self-verifying, and their actions express an asserted belief in the proof of something.  NOTHING IS AN ASSERTION UNLESS IT IS INTENDED TO BE ONE.  Conduct can be entered into evidence if a person acts "as if" their belief leads them to infer something that needs to be proven.  Conduct is inadmissible hearsay if their belief is acted upon in a way that implies they are already convinced of proof.  It's ironic, I know, but this is exactly how the law of hearsay determines truthfulness -- by how much "normal" doubt exists in the mind of a hearsay witness.  Sometimes, the conduct of a household pet, such as a dog or parrot, is of more evidentiary value than the testimony of a human whose motives are naturally suspect (Waltz & Park 1999).  It all depends upon what inference is being drawn in the mind of the person offering such evidence, as well as what practical reasons the court has for considering such evidence.

THE COMMON LAW EXCEPTIONS

    The following list attempts to present the exceptions in historical and meaningful order, although another useful way to classify the hearsay exceptions is to indicate which ones require the declarant to be unavailable and which ones do not.  The concept of declarant unavailability is itself a matter of some discretion, but as a general rule, the following require unavailability: dying declarations, declarations against interest, and former testimony; and the following do NOT require unavailability: spontaneous or excited utterances, present sense impressions, business and public records, and states of mind and physical condition.    

    (1) DYING DECLARATIONS -- This is one of the oldest exceptions to the hearsay rule at common law.  The basic assumption, be it right or wrong, is that the solemnity surrounding the act of dying, or a belief that one is dying, tends to impel truthfulness.  Of course, this is an imperfect assumption, but the law since ancient times has long held that the risk of admitting a deceitful dying declaration is far outweighed by the need to protect the public from homicidal criminals who might go free if unidentified by any other means.  Most state-level evidence rules restrict this exception to murder trials only, and some states actually require death, not just the belief of immanent death, and yet other states have had controversies involving victims that lapse into coma or recover from critical injuries.  Juries always have the right to grant as much value or weight to a dying declaration as they see fit.  Before a dying declaration can be admitted into evidence, the circumstances surrounding the death, and more importantly, the events leading up to the defendant's role in conduct that might have led to the death or dying declaration, need to be described in detail.  In practice, medical doctors and other experts may also be called to testify about states of consciousness that preceded death, but it is highly unlikely that the court will overturn years of precedent in the face of any expert testimony suggesting that people sometimes lie before dying.  Medical and emergency personnel, along with police officers responding to crime scenes, are the ones most likely to testify about a victim's dying declaration, and the cross-examination of such witnesses can be brutal.  Many police departments and other professionals have given up on the careful note-taking required to legally document a dying declaration, and instead rely upon admitting this kind of evidence under another exception -- spontaneous or excited utterances.

    (2) SPONTANEOUS OR EXCITED UTTERANCES -- This is an English common law exception to the hearsay rule that dates back to the mentalistic psychology inherent in utilitarian philosophy.  The reader will remember that utilitarian philosophy is based on the principle that all human behavior involves planning, reflection, and self-interest.  Eliminate that reflection and you've got behavior that isn't always self-interested, and more likely to be sincere and trustworthy.  The law has always recognized immediacy as a sign of truth.  It takes time and reflection to lie.  Also, according to the law, it takes a shock of some momentous occasion to elicit a spontaneous utterance.  The Federal Rule of Evidence (Rule 803) on this matter prefers to call such things "excited" utterances, and defines them as "statements made to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition."  In practice, this exception usually involves 911 calls or quick police responses where the victim is found hysterical, in great pain, frightened, and/or bleeding profusely, as with a domestic violence, battery, or rape incident.  In such cases, the court will usually allow the police officer to testify on behalf of the victim, and such testimony is not considered hearsay, but "the event speaking and not the speaker" (Pennsylvania v. Zukauskas 1983).  A spontaneous utterance doesn't even have to be verbal.  A crowd can point out the perpetrator at a crime scene with their nonverbal behavior, or the victim's frantic behavior immediately after being victimized can be an indicator of whodunit.  Police officers can also make excited utterances, and the recordings of radio communications between officers or between officers and dispatchers are sometimes admitted, as with all evidence of this type, without the party who actually made the statements ever having to take the stand.  It is totally up to each judge's discretion as to how long the time interval ought to be before something ceases to be "spontaneous."

    (3) RES GESTAE OR PRESENT SENSE IMPRESSION -- This is not really an historical exception at common law, but 38 states recognize this exception to the hearsay rule (Waltz & Park 1999), and the federal counterpart is solely the "present sense impression" exception as the phrase "res gestae" is nowhere mentioned in the Federal Rules of Evidence.  Where the res gestae exception exists, a party is allowed to admit evidence which consists of, among other things, everything said and done in the course of the incident or transaction that is the subject of the trial.  The evidence admitted under res gestae can be hearsay or non-hearsay.  For example, a firearm confiscated by police in the course of arresting a drug dealer can be taken as part of the usual transaction of drug dealing, or, to give another example, pornography confiscated from a child molester might be taken as inferring the victims were shown pornography.  The idea of res gestae is that some words and conduct are so closely associated with an occurrence that they can be considered part of the "whole story" and as such their report does not violate the hearsay rule.  A voir dire hearing is usually required before res gestae evidence can be admitted, and in order to spare the jury from being presented any prejudicial matter.  There is a bit of variation in how different states and judges handle res gestae exceptions, and the modern trend is to use the less confusing "present sense impression" exception.  A present sense impression is defined by FRE 803 as a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.  The idea of a present sense impression is that some statements are made under such conditions or circumstances as to indicate the trustworthiness of the statement, for example, when all passengers in a vehicle or a crowd witness the same thing.  Such declarations can be conclusory in form (I saw X say Y did it), but so long as they are contemporaneous and not the result of speculative hindsight by someone who has familiarized themselves with the case, they can be admitted as material evidence which does not invade the province of the jury.  Although the federal rules don't require it, a few states require corroboration by witnesses who have had an opportunity to observe the same thing, say they heard the same thing, or can testify about the truthfulness of someone who recounts what they say they heard.

    (4) ADMISSIONS AND DECLARATIONS AGAINST ONE'S INTERESTS -- These involve long-established common law exceptions to the hearsay rule, and consist of various types, of which admissions (acquiescing in the statement of another or remaining silent in the face of accusations) are a special type.  It may be helpful to think of this category of exceptions as similar to the way police investigators go about obtaining admissions or "soft" confessions.  There are two main types of declarations against interests -- against pecuniary interest and against penal interest.   The rationale behind this group of exceptions is the legal system's confidence in the notion of "probability of truthfulness."  When a person says or writes something that isn't exactly in their best interests, the legal system assumes that those statements probably would not have been made unless they were true.  At least such statements would be trustworthy if corroborated by other facts, and FRE 804(b)(3), which governs this exception, requires some corroborating facts.  For example, if an arson-for-profit case involves the testimony of a co-worker who says he heard the boss say "this place would be better off burnt down," and the boss denies ever saying this, the testimony of the co-worker would be admissible as hearsay if there were corroborating facts such as evidence that the business was doing badly.  This is an example of declaration against pecuniary interest, since the co-worker might be held liable in civil court by the insurance company for their part in the arson-for-profit scheme.  What is much more common, however, are declarations against penal interest, in which the hearsay witness is at risk of being charged as a co-conspirator to the crime.  In fact, declarations against penal interest are so common that at least one commentator (Davenport 1972) has called this exception the "co-conspirator exception."  A typical scenario runs like this -- a drug dealer (named Joe) is arrested in a passenger vehicle, and none of the fellow passengers are charged with anything, but later police questioning of the passengers reveals that one passenger says "I often allowed Joe to store stuff he said were drugs in a closet at my apartment."  The law would look upon this storage of extra drugs as a critical fact, and force this passenger to testify as a turncoat witness, even if that passenger had the foresight to obtain immunity from prosecution.  The passenger is clearly a co-conspirator, but their statement is not taken as a confession, only as a self-inculpatory declaration against penal interest in order for the prosecution to get at Joe.  The prosecution can always try to prosecute the co-conspirator later, but it will not be able to rely upon the co-conspirator's statement alone since it was used as hearsay in another case, and doesn't qualify as a confession.  It only qualifies as a statement to get at the truth in the context of the present case.  It may be helpful to think of this as the law looking favorably upon "uncooperative" witnesses as opposed to "cooperative" witnesses because the law looks down on snitches, who voluntarily sell out their friends in order to save themselves.  In order for the truth to come out, the law assumes everyone must face the real risk of a penal sanction.  That's what a declaration against penal interest means -- that the truth comes out when you are forced to say things that risk getting you in trouble.

(5) BUSINESS AND PUBLIC RECORDS --  The law assumes that organizations and individuals create records for a reason, and have a vested interest in seeing that they are accurate.  There are two ways to get such records admitted into evidence, either under the awkward authentication rule of documentary evidence, or under the business records exception to the hearsay rule.  Most lawyers prefer the hearsay exception route, and it can be said this is the most expanding area of hearsay exceptions.  All sorts of records can be admitted: school records, medical records, financial records, and computer records (to name a few).  The absence of records can also be used to make hearsay inferences about the conduct of an organization or individual.  About the only type of record that is excluded are police investigatory records where police have extracted second-hand information.  Rap sheets and arrest records are, also, for the most part, excluded, especially in criminal trials where such evidence would be unfairly prejudicial.  Previous conviction of a crime cannot be used as evidence in a subsequent criminal action, although a few states (like California) have evidence codes that allow admission of previous felonious behavior.  Previous arrest records are widely used, however, in sentencing hearings and civil trials.  To be admissible, hearsay records must follow the best evidence rule by being recorded in the normal course of doing business and at the time the business was conducted.  Computer records best satisfy this rule, and the field of computer forensics has opened the door to a vast number of possibilities in this area. 

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