∙ Defective observation (misperception)
The statement in question might be based on the maker’s flawed perception of an event to which it related.
∙ Defective memory.
Hearsay evidence may be objected to on the grounds that the both the statement may be based on the makers flawed memory of events and if he is not in court the reliability of the evidence can not be tested.
- Hearsay is not the best evidence
Hearsay is usually only indirect secondary evidence of the facts in issue. The best evidence would be the testimony of the maker of the statement. Hearsay requires the fact-finder (the jury or the magistrate) to draw two inferences rather than one; as to the reliability of the statement maker and the reliability of the reporter of that statement. The existence of the rule encourages the parties to secure the best evidence available where there is a reasonable possibility of this being achieved.
- Hearsay is not given on oath
The oath sworn by the witness is one of the guarantees traditionally relied upon by the common law as a means of ensuring the witness’s sincerity. The oath, it is suggested, serves as a reminder to witnesses both as to the solemnity and importance of giving evidence in court and that punishment awaits those who commit perjury. Consequently, it is argued, those who give sworn evidence are more likely to tell the truth and to give greater care in recalling memories of the events in question. These safeguards do not exist in relation to out-of-court statements.
- Absence of Cross-Examination and the Difficulty of Assessing the Weight of Hearsay
This is often regarded as the strongest and most important justification for the rule. Cross-examination is a significant means of testing and exposing weaknesses in testimony. It is claimed to be instrumental in revealing insincerity, mistakes and ambiguity in testimony. If these matters cannot be tested it is much more difficult for fact-finders to accord evidence its true probative weight.
- Demeanour of the Witness
Many regard the opportunity to observe a witness giving evidence to be valuable in assessing the reliability of that evidence. This view is based on the assumption that a person’s body language, confidence and the manner in which they deal with questions, the way in which they deliver the evidence and so on, provide important clues as to whether the person is telling the truth.
- Risk of Manufactured Evidence
The risk of manufactured evidence attaches to both hearsay and testimonial evidence. The testifying witness can be cross-examined in order to root out fabrication. This is not possible in the case of hearsay evidence and the risk increases in cases of multiple hearsay, where the statement has been repeatedly passed from one person to another.
- Risk of Error in Transmission
Witnesses may misreport the statement of another. The error might lie in the non-effective use of language by the maker of the statement which results in the statement failing to assert its intended and true meaning. Alternatively, the vagaries of language are such that a statement, though an accurate communication of its intended meaning might also be capable bearing a further and unintended meaning with the danger that the listener imbues it with an unintended meaning. Moreover, the listener may simply mishear the message and hear what he expects or wants to hear.
G. Right to challenge and confront one’s Accusers
This is an argument based on procedural rights. It is argued that the presence of and therefore the ability to challenge one’s accuser are instrumental in promoting a defendant’s fundamental interest to an accurate outcome of the trial. If subjected to trial an accused ought to benefit from procedures that maximise accuracy. Secondly, it is suggested that rights of confrontation and challenge demonstrate official concern and respect for human personality. Maximising opportunities for parties to participate in the process of decision-making promotes the legitimacy of the decision both in the eyes of the parties and of the public generally.
Hearsay and reliability
The application of the hearsay rule can lead to the exclusion of seemingly probative and reliable evidence:
Myers v DPP, [1965] A.C. 1001
D was charged with conspiracy to receive stolen goods and conspiracy to defraud. The prosecution sought to prove that D was ‘ringing’ cars – stealing cars and changing identifying marks in order to pass them off as renovated write-offs. In order to prove that the cars sold by D were in fact cars that had been stolen, the prosecution called an employee in charge of records kept by the manufacturer of the cars. It was proposed that he give evidence from microfilms of cards filled out by production line workers which recorded the unique serial numbers stamped on the cylinder blocks during manufacture.
D successfully appealed against his conviction. The House of Lords held that the evidence of the manufacturer’s records was inadmissible hearsay. The purpose of adducing the evidence was to show that certain cars carried certain identifying numbers when they left the production line. The cards represented “assertions by the unidentifiable men who made them that they had entered numbers which they had seen on the cars”.
The decision was almost immediately reversed by the Criminal Evidence Act 1965 which provided for the admissibility of trade and business records which was ultimately been replaced by ss23-26 Criminal Justice Act 1988, which is discussed below.
The rule applies to evidence tendered by either side.
The rule applies both to evidence adduced by the prosecution and the defence. The application of the rule to exculpatory evidence that the defence wishes adduce can appear to result in unfairness, however, the courts have resisted any intuitive leanings towards admitting such evidence:
Sparks v R [1964] A.C. 964, PC.
D, white man, was convicted of indecently assaulting a 3 year old girl. The girl did not give evidence at trial. The defence wished to call the girl’s mother to testify that about half an hour after the incident had taken place, the girl told her mother that ‘a coloured boy had done it’. The Privy Council upheld the trial judge’s decision not to admit this evidence as a correct application of the hearsay rule.
Arguments for a change in the hearsay rule
Take this example.
In 1992 the House of Lords considered the case of Kearley (Zuckerman CLR 1996). Kearley was charged with possession of drugs with intent to supply. Drugs were found at this flat. While police were there10 telephone calls were received in which the callers asked to speak to the accused and asked for drugs. A further 7 persons came to the flat seeking to buy drugs. The prosecution could not call the callers to court to testify instead proposed to call the police officers to give evidence of the telephone calls and visitors. The House of Lords ruled that this evidence was inadmissible because although the police officers were not going to assert that the accused had been dealing in drugs the implication drawn from their statements could not be treated differently from an assertion to that effect.
Hearsay can be one sided. Consider this (CLR 1996, Sweet and Maxwell) A shop keeps a record of goods sold. An entry in a book to show that an article was sold would be inadmissible to prove the fact of sale. But absence of an entry that a certain object was sold has bee held admissible to show it was not sold.
Hearsay affecting confessions
Confessions are an exception to the hearsay rule as it stands. A confession is defined as ‘An assertion wholly or partly adverse to the person who makes it.’
Conclusion
Section 1(1) Civil Evidence Act 1995, ‘In civil proceedings evidence shall not be excluded on the ground that it is hearsay…’Allen, C.
There are safeguards written in to the act such as sufficient notice be given to the other party that it is intended that hearsay evidence be used. The other party is therefore able to deal with any matters arising from the use of hearsay evidence and can balance their argument appropriately. Hearsay is not defined in criminal law although some of the exceptions to it are. The criminal law has been added to in recent years such as the Criminal Procedures and Investigations act 1996. This has brought into being the obligations of primary and secondary disclosure of evidence and defence statements. Combined with a statute affecting the use and permitting of hearsay evidence this could give all the safeguards needed to prevent the exclusion of good quality evidence. The reasons for not allowing hearsay mentioned above in the earlier paragraphs could satisfactorily be covered with a safety net of notice as described.
