Hearsay And The Exceptions In Civil And Criminal Cases

The general rule at common law is that hearsay evidence is inadmissible unless it falls within a common

law or statutory exception. The rationale behind this exclusionary rule is that out of court statements made

by others cannot be tested in court by cross-examination to see if they are true or not.

Hearsay evidence is renowned as one of the most difficult areas as of law to pigeon hole and define. It

has been widely interpreted and reinterpreted by the courts. A useful starting point is the definition found

in the Civil Evidence Act 1995 section 1, which, bearing in mind that it only applies to hearsay

in civil cases, is one of the nearest to a clear definition of hearsay. The definition itself is based on

common law cases, which form the basis of how hearsay evidence is treated in criminal cases; Under

section 1(2) of the Act - Hearsay evidence can be thought of as "any statement made otherwise than

by a person while giving oral evidence in the proceedings, which is tendered as evidence of the matters

stated." Examples of hearsay statements in documents can be found in witness statements read out by

solicitors in court; public analyst certificates, and records from businesses, such as accounts.

For the purposes of the hearsay rules, the definition of a statement applies equally to those made orally,

to those made by a gesture and those made in documents.

Statements that have been held to be hearsay include documents from a factory, assembly line (Myers v DPP); somebody nodding in agreement to a question; and phone calls to a drug dealer's house

asking for the usual supply of drugs. The cases have shown that statements could be statements that on

the face of it are not repeated to prove the facts stated, but on reflection imply that the facts suggested

are true. However, even the cases dealing with these so-called "implied assertions" are unclear and often

conflicting.

There are several clear common law exceptions to the hearsay rule. As stated the hearsay rule will not

apply to the statement where the party seeking to rely on the statement other for than the proving of the

truth of the matters contained within it. Some examples of statements held not to be hearsay include

those repeated by others to show only that a statement in question was actually made, for example where

a person had been threatened by terrorists, the statement was repeated not to show that the threat was

true or not, but simply that it was made, and therefore was capable of being believed by the accused and

thus capable of amounting to duress - Subramanium v DPP.

Another exception is statements made by mechanical devices, for example where there has been no

human intervention or input, such as with automatic calculations and printouts or itemised phone bills

such as in R v Spilby (1990).

Furthermore, statements made in public documents, for example in documents concerning a public

matter and made by a public officer under a duty to inquire into, and record results of the inquiry, such as

a Register of Births and Deaths, or an Office of Fair Trading return are not excluded under the hearsay

rule.

The hearsay rule does not apply to photographs, video recordings, sketches, photo fits, and works of

reference such as maps, and historical texts,

A statements made by a deceased person as to the cause of his death is admissible as evidence of the

cause of death, if as in R v Perry (1909), as long as the person is under a settled hopeless

expectation of death. 

Res Gestae statements, those that made in the heat of the moment, where it is assumed the person

making them has not had time to concoct an untrue statement are admissible. These will generally be

statements that so to show physical sensation or the maker's state of mind or if closely associated with a

dramatic event.

Thus if a person whilst away form home writes a letter explaining why he is staying away from home the

letter would be admissible as to the fact that he had stayed away from home, as it is a statement

explaining the relevant action at the time that they were performed, and thus be admissible as to show

further reasons why he stayed away from home. (Rouch v Great Western Railway Co (1841)).

In Thomas v Connelll (1838), where a man stated that he was insolvent the statement was

admissible to show his state of mind at the time, however it cannot be held up as proof that he was

insolvent and other evidence must be brogue to show that this was the case. It merely could be brought

as evidence to demonstrate that the maker of the statement believed that he was insolvent.

A statement of intent may also be admissible, both if it was made at the time that the act was carried out

or proper to the carrying out of the act. The court has a discretion based on the time between the

statement and the carrying out of the alleged act as to whether or not it could be that the intent was still

possessed. The longer the time elapsed between the statement and the act itself then the lower the

probative value of the statement.

Where statements are closely associated with a dramatic event then they can be admitted as evidence of

the fact that they have been concocted or distorted can be disregarded. The judge in determining so will

look a the makers state of mind at the time so assess whether it was so dominated at the time by the

events that concoction can be ruled out. In addition the judge will look at factors that could lead the

person to distort or concoct including motive, and reliability of the circumstances in which, for example,

identification was made. If the judge does decide that the statement is admissible then he should still

draw to the juries' attention factors which might increase the risk of concoction or distortion.

We shall move to look at statutory exceptions to the Hearsay rule. Under the Criminal Justice Act 1988 (CJA) two main exceptions apply under ss. 23 and 24.

Section 23 covers first hand documentary statements. This section provides that a statement made by

a person in a document shall be admissible in criminal proceedings as evidence of any fact stated of

which oral evidence would be admissible, but only where the maker of the statement is unable to attend

court. The court may hold that this is the case if they are outside the UK, unfit to give evidence, can't be

found, where they are not giving evidence out of fear or whether they are deceased.

The statement must be first-hand hearsay, to come under the exception, that been that the statement was

made by a person who directly perceived the facts of which the evidence is being given.

Where a statement satisfies the above requirements, the court still retains discretion to refuse its

admittance where it is in the interests of justice to do so by virtue of s.25 (1). In deciding whether it is in

the interests of justice to refuse a statement's admittance, the court may consider the risk of unfairness to

the accused by either admitting it or not, and whether he/she is likely to be able to contradict it.

Similarly, where the statement was prepared for the purpose of a criminal investigation, or for criminal

proceedings, for example under S.9 it is a witness statement taken by us during an accident investigation

then the statement is only admissible if the court decides that it is in the interests of justice to admit it

under s.26.

Under Section 24 documents prepared in the course of a business, profession or occupation to be

admissible, despite them being hearsay statements, are exempted form the hearsay rule in certain

situations...

Under this section, statements in documents will be admissible as evidence of any fact of which direct

oral evidence would be admissible if the document was created or received in the course of a trade,

business, profession or other occupation, or by a person holding an office and where the information was

supplied by a person who had personal knowledge of the matters dealt with.

Once a business document falls within the ambit of s.24, it is generally admissible without the need to

show that the witness is unavailable to attend court. However, if the document was prepared for a criminal

investigation, then the document will not be admissible unless the witness who made the document and

who had personal knowledge of the facts stated is unable to attend court, or can't reasonably be expected

to remember the matters stated.

Sections 25 and 26 also apply to business documents, and so the presumption is that a S.24 statement would be admitted unless it was not in the interests of justice to do so, but if it was prepared in

the course of a criminal investigation etc. it would not be admitted unless it was in the interests of justice

to do so.

Examples of S.24 statements could include receipts, delivery notes or statements to the police. It should

also be noted that a document has been held to include a tape, film, or disc. as well as a written

document.

In determining the weight of the evidence admitted under section 23 and 24 the court can consider

all relevant circumstances from which an inference of the documents accuracy can be drawn. In addition

section 27 provides that a statement that is admissible in criminal proceedings can be proved by a

copy of the original authenticated in a manner approved by the court.

CJA 1988 s.30 applies to expert reports. The provisions of ss. 23-26 above do not apply to expert reports.

As a special exception to the hearsay rule, an expert report can be admitted in evidence without the

expert who made the report giving oral evidence, provided that the court gives leave for this to happen.

The decision to give leave will turn on the contents of the report; the reasons why the expert cannot give

evidence; the risk of unfairness to the accused from his/her inability to cross-examine the expert etc.

The rules for crown court cases state that expert reports should be disclosed to the other side as soon as

practicable after committal of the accused, and recent changes to the rules regarding prior disclosure may

also affect the likelihood of a court giving leave to admit an expert report where disclosure rules have not

been complied with.

Admissibility of a computer record will be hearsay if it is stating information fed in by a human (e.g., a

word processed document). However, it could be a business record within the meaning of section 24 CJA 1988 (above) and be admissible (subject to ss. 25 and 26). A computer record

will not be hearsay if it is of a computer made calculation. Such a document is real evidence.

The Police and Criminal Evidence Act 1984 (PACE) S.69 provides that computer records

may only be admissible (whether they are hearsay or not) where there are no reasonable grounds for

believing that the statement is inaccurate because the computer has not been used correctly, and that the

computer was operating properly.

The effect of S.69 is that any party wishing to rely on computer evidence (e.g., by oral evidence of an

operator, or by a certificate showing reliability of the computer signed by a responsible person), must

prove that the computer was working and being used properly.