Law of Evidence: Hearsay Rule

Rule Against Hearsay

• The rule against hearsay states that a statement made out of court may not be presented in evidence as proof of its content.
• Hearsay is inadmissible, which is an example of an exclusionary rule, because the maker of the out-of-court statement is not available to be cross-examined, and therefore, the quality of evidence cannot be tested.

Exceptions to the Rule Against Hearsay

• To avoid unfairness, the law has developed exceptions where hearsay evidence can be properly relied upon.
• There are two questions to be asked to determine if evidence is admissible:
  • Does the evidence fall within the definition of hearsay evidence? If yes, it is prima facie inadmissible.
  • Does the evidence fall within one of the exceptions to the general exclusionary rule?

Criminal Justice Act 2003: s 114

• Section 114 CJA 2003 provides that hearsay is admissible if, but only if, it falls within one of the exceptions in s.114(1).
• The exceptions include:
  • Any provision of the chapter or any other statutory provision makes it admissible.
  • Any rule of law preserved by section 118 makes it admissible.
  • All parties to the proceedings agree to it being admissible.
  • The court is satisfied that it is in the interests of justice for it to be admissible.

Statements and Matters Stated: s 115 CJA 2003

• A statement is any representation of fact or opinion made by a person by whatever means.
• A matter stated is one where the purpose, or one of the purposes, of the person making the statement appears to the court to have been:
  • To cause another person to believe the matter or.
  • To cause another person to act or refrain from acting on the basis that the matter is true.

Test for Hearsay: R v Twist

• The Court of Appeal reformulated the sections as a test that determines whether or not a communication is hearsay.
• The test has three parts:
  • Identify what relevant fact (matter) it is sought to prove.
  • Ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises.
  • If yes, ask whether it was one of the purposes (not the only or the dominant purpose) of the maker of the communication that another person should believe that matter or act upon it as true. If yes, it is hearsay and if no, it is not.

Not Hearsay

• Private diary: anything written in a private diary where the writer did not intend that anyone else should ever read it cannot be hearsay as there is no intention on the part of the maker of the statement that any other person should believe anything.
• CCTV: section 115(2) contains the words '...made by a person…’, so no issue of hearsay arises where the piece of evidence in question was created entirely by a device.
• Questions: where there is no statement of a matter.
• Original evidence:
  • Words spoken out of court are admissible original evidence.
  • The purpose of the party adducing the evidence is to show that the words were spoken, not that they were true.
  • Original evidence can also be adduced to show the state of mind of the maker.

This quiz covers the rule against hearsay in the law of evidence, its general rule, and exceptions. It also touches on the importance of testing the quality of evidence.