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It is time the rule against hearsay evidence in criminal proceedings was abolished and brought into line with the rule in civil proceedings. Discuss.

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Introduction

2,000 words It is time the rule against hearsay evidence in criminal proceedings was abolished and brought into line with the rule in civil proceedings. Discuss. The hearsay ruling, one of the biggest exclusionary rules in the law relating to evidence, has often been criticised. There are those who support it and those who see little relevance in the rule, and would like to see it abolished. In civil cases, the rule now has little application, and could be seen as an indicator of the growing feeling of dissatisfaction with the rule1. That said recent criminal cases have shown that the hearsay rule is still playing a part in cases and proving as problematic as ever2. Its impossible to give a thorough look at hearsay in such little space3, but a brief over view of what exactly the hearsay rule is, will be followed by a look at some of the problems it causes, and why abolishment may seem appropriate. Cross on Evidence4 defines Hearsay as: "An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted". This is to prevent, a witness being called to testify that a person told them they saw a crime happen, though they themselves did not see it. ...read more.

Middle

In the second case, O and V had both been identified in a line out by two separate witnesses. At trial one witness could not remember identifying anyone, and the second witness did not believe the person she picked was in court. However the police officer responsible was allowed to give evidence confirming the identification's. In both cases one witness is attempting to prove the truth of another's statement. They are, on this point of law, indistinguishable. In one, the hearsay rule applied, in the other, the court allowed a way around it. An extension to the hearsay rule arose in the case of Kearley (1992)14, where the rule was held to apply to "implied assertions". An implied assertion, is a piece of evidence that is circumstantial, yet the law treats it as though it were a direct statement upon whose truth the party adducing it, intends to rely on. In the case, K was arrested on suspicion of drug dealing. While police searched his flat 10 people were said to have telephoned and 7 called in person. Some asked for K and offered to buy drugs. The prosecution did not call any of the "prospective buyers" to testify15, but called the police officers to confirm the calls took place. The defence successfully convinced the majority (3-2) of the House of Lords that this was however nothing more than hearsay and irrelevant. ...read more.

Conclusion

8 Turner [1975] 61 Cr App R 67 9 [1965] AC 1001 10 Crim LR 316 11 1 QB 857 12 52 Cr App R 80 13 QB 678 14 2 AC 228 15 It is unknown why, perhaps because they did not wish to cross their dealer, or they could not be traced. However, had one of these callers testified, it would then no longer be hearsay. 16 "it is difficult to think of much more convincing evidence of (k's) activity as a drug dealer than customers constantly ringing his flat to buy drugs and a stream of customers beating a path to his door for the same purpose." Lord Griffiths, Kearley (1992). 17 The fact that K had only been found with a small amount of drugs (an amount that could be manufactured easily) may mean that the hearsay rule being applied actually protects innocents from police corruption. 18 Lord Oliver felt that to ignore the hearsay ruling for an implied assertion would have meant the court "embarking upon a process of judicial legislation". Perhaps this highlights the need for the courts to be given improved and greater detailed legislation on the matter from parliament. 19 Teper v R [1952] AC 480 20 AC 41. "The danger against which this fundamental rule provides a safeguard is that untested hearsay evidence will be treated as having a probative force which it does not deserve" - Lord Bridge. 21 [1996] Cr App R 302 1 ...read more.

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