The standard definition of hearsay as found in the widely used Black's Law Dictionary.

The standard definition of hearsay as found in the widely used Black’s Law Dictionary:

“A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay evidence is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matter therein, and thus resting for its value upon the credibility of the out of court asserter. Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say”

However as the definition above also states, there are numerous exceptions to the hearsay rule. An example is when the original declarant is not available and the statement contains indicia of reliability. What is important is that the use of an out of court statement as an assertion of the truth of the content of that out of court statement, as the definition above reads, “ to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out of court asserter”. The concern of the hearsay rule is that matters of fact asserted by an individual rely for their truth in part upon the credibility of the individual asserting them. The hearsay rule generally disallows the use of out of court statements as evidence of the truth of the matters asserted in that statement. However in countries like Malaysia, the parliament has come up with a regulation to allow hearsay as evidence. That regulation is the Esential (Security Cases) Regulations (ESCAR) Offences. The Attorney General in Malaysia can designate any offences as an ESCAR prosecution. This procedure directly indicts the accused to trial by the High Court Justice without a jury. Witnesses need not identify themselves when they testify. Hearsay is admissible and giving the same weight as direct evidence. Upon conviction the maximum permissible sentence must be imposed. The death sentence thereby becomes mandatory for some of the ESCAR prosecutions.

This is a preview of the whole essay

Hearsay can be identified by applying the following rules; that is hearsay is anything said or written outside the courtroom, if it is being used to prove the truth of what is contained in those words or writing. A valuable case to look at is R V. McLean; in this case the Court of Appeal found with considerable reluctance, that the witness’s testimony was inadmissible hearsay. The reason why the case was judged this was is because of what has been stated above the out of court statement that was introduced by the victim, was being introduced as evidence of truth of what he said, that is in this case the car registration number. There is one Australian case, were hearsay was again not admissible. The case is Miller V. Wertheim and Rothman; in this case, a one Ms Miller alleged that Mr. Wertheim the out going president of the New South Jewish Society, made a speech which vilified and intimidated Jewish people. The evidence of the speech was objected by the respondents on the basis that it was hearsay. The respondents were wholly successful in their application to dismiss the principal application and were prima facie entitled to an order for cost. In this case there objewction was successful because the could would not allow the speech and said that indeed that it was hearsay, since it was an out of court statement.

As it has been stated above there are respites available that can provide admissibility to the general principal of hearsay. One such example is the case of Subraniam V. Public Prosecutor. In this case the accused was charged with unlawful possession of ammunition under emergency regulation. It was a defence to have a lawful excuse for possession and the accused sought out to give evidence that he was captured by terrorist, however the trial judge ruled that he could not state that in evidence what the terrorist had said to him as that would amount to hearsay. However the Privy Council quashed the conviction on the following basis, that the evidence of a statement made to a witness by a person who is himself not called a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact it was made. This means that in the present case the accused was seeking to introduce the statement of the terrorists, not to show the truth of what the terrorists had said to him but to establish the state of his own mind as a result of what they has said. Another such case to look at is Myers V. Dpp, although it has been superseded by statue. In this case the accused faced several charges of receiving stolen cars. The prosecution case was that wrecked cars and their log book shad been bought at a very low price and then cars of the same type had been stolen, passed off and sold as the legitimately bought cars. The prosecution were allowed to establish that the cars were stolen by calling employees of the car manufacturers, and these witnesses produced microfilm records, purporting to show, the cylinder block numbers which had been indelibly stamped on the engine and contemporaneously recorded during the manufacturing process. The majority of the House of Lords Held that the evidence had been wrongly admitted on the ground that the hearsay rule was absolute unless an exception applied. The list of common law exceptions was closed, and the mere fact hearsay evidence was highly reliable was not itself any reason to admit it in the absence of an established exception. No matter how cogent particular evidence may seem to be, unless it comes with a class, which is admissible, it is excluded. The technical nature of the hearsay rule has created difficulties for the courts. If highly reliable and probative evidence falls within the scope of the exclusionary rule it is inadmissible unless a common law or statutory exception could be found to justify its admission.

At common law the exceptions to the rule in both criminal and civil cases become horribly tangled. In Malaysia the Malaysian government have made amendments to the Malaysian Evidence Act which they made in 1993 have now made it possible for a party wishing to adduce evidence in the form of inter alia electronic data stored in a computer, CD-Rom, magnetic diskette or documents produced by a computer, to do so with fewer obstacles. The Evidence Act now also provides that in any criminal proceedings a computer generated document of any statement contained in such document is admissible in evidence of any fact stated therein. It is because of this that to considerable extent particularly in civil case these problems have been resolved by statutory in intervention in the form of The Criminal Justice Act 1988 and the Civil Evidence Act 1995. These are the certain extent to which the rule of hearsay can be admissible in court as evidence.