Hearsay

Hearsay Evidence Rule

The most famous rule of evidence is that prohibiting hearsay. Hearsay is a statement made otherwise than in court, which is offered as evidence of the truth of its contents.  In the narrow and commonly understood sense, a witness may not generally relay that which another person said on another occasion as evidence of the truth of what that person said.  The rule also applies to statements in documents and a range of other express or implied assertions.

Generally, a witness, who is not an expert, can only give evidence of matters of which he has direct first-hand knowledge. These must usually be matters which he has actually observed and perceived. A key lynchpin is based on the notion that cross-examination is most effective and meaningful when it relates to matters of first-hand observation. It is the other party’s right to challenge the observation, perception and credibility of the witness.

In practice, the parties may waive the strict application of the hearsay rule.  This is more likely to occur in a civil case, particularly in cases where there is no serious dispute on the matters concerned.  Hearsay evidence is permissible in pre-trial applications. Such applications usually proceed on the basis of affidavit evidence.

Definition of Hearsay

Hearsay evidence is evidence of out of court statements, whether verbal, in documents or otherwise which are put forward as a truth of its content. An obvious example of hearsay is found in its everyday meaning;  A witness may not offer as the truth of its contents, something which some other person said on another occasion to him.

Hearsay may be verbal or written.  It may be any express or implied assertion, the truth of which is an issue in legal proceedings. It may be slightly less intuitively obvious, that a document or a certificate by a public authority is hearsay evidence, where it is offered as proof of its contents.  The hearsay evidence rule applies equally in criminal and civil cases.

Many statements, which might appear to be hearsay evidence are not. .A statement is only hearsay if it is offered as evidence of its truth. Many statements and document which arise in a legal context, are not hearsay because they are legally effective irrespective of the truth of the words spoken or written.

For example, statements in the course of buying and selling goods and the formation of contracts are relevant irrespective of the subjective intention of the person making it. They are not hearsay because their “truth” is irrelevant. The word themselves are legally significant.

Rationale for Exclusion

Hearsay evidence is generally excluded because it is assumed to be unreliable. It has been reformed to a greater extent in criminal cases, than in civil cases in Ireland.  The rule has been completely reformed in other jurisdictions such as England and Northern Ireland so that hearsay is generally admissible under certain conditions.

Hearsay evidence is considered to be doubly objectionable. It is subject to the fallibility of recollection and more, importantly is not subject to challenge by way of cross-examination. There are various exceptions to the hearsay evidence rule. The exceptions often require that other facts be proved, in order to form a basis for the exception to the rule.

The rule against hearsay is based primarily on the fact that hearsay evidence is unsworn and may not be challenged by cross-examination.

The rule goes to the heart of the common law system of trial, by which a party may challenge his opponents’ evidence and reliability and credibility of his witness by cross-examination.  Cross-examination is undertaken by questions, which the witness must answer under oath. Failure to answer or tell the truth constitutes contempt of court or perjury.

By putting questions to the opponent’s witness, the evidenced or testimony of the witness may be tested and examined. Its reliability, accuracy and the honesty of the witness may be challenged. It may be shown that the witness may have made errors of perception and recollection. The witness may be shown to be dishonest. Answers to questions may show that the witness is biased, has a connection to the other party or has another interest in the matter in dispute.

Where there is a conflict of facts in the evidence of the parties witnesses, then the facts as alleged by the opponent (whether already heard or not) must be put to the other’s witnesses in cross-examination.  That witness must be given the opportunity to comment on or deny the evidence of the contradicting witness.

Rationale

The hearsay evidence rule is based on the assumption that juries are unable to evaluate the strength of such evidence.  It protects against the manufacture of evidence by means of the multiple repetitions of false claims.  Pre-trial statements may be unreliable due to error, ambiguity, misunderstanding, and untruthfulness.  In the case of multiple hearsay, these factors can be amplified by the re-telling,  so by the time an original accurate account of the matter has passed through a number of intermediaries, it may bear little resemblance with the initial accounts.

Perhaps, the best justification for the hearsay evidence exclusionary rules is that hearsay is not given on oath and cannot be tested in court by cross-examination. This reflects the primacy of verbal evidence in the common law trial. The opportunity to confront, challenge  and cross-examine a witness is regarded as a powerful weapon in ascertaining the truth,

The hearsay exclusionary rule reflects the principle of so-called “best evidence”.  This principle, which is found in other areas of evidence law, requires that the best available evidence should be produced to the exclusion of other secondary forms of evidence. This best evidence rule requires the production of the original document, where this is possible.

Pre-Trial Statements

The hearsay rule makes most out-of-court statements, even those prepared for the trial itself, inadmissible as proof of their content. It, therefore, excludes the admission at trial of pre-trial statements by witnesses.    The witness must give his evidence afresh in court.

Pre-trial statements are available for limited purposes only, as set out in other chapters. They are relevant principally, to the issue of credibility, subject to conditions.

They are admissible as proof that inconsistent evidence is given was given on another occasion.  In this case, they have obvious and logical value in undermining credibility.

Statements Relevant Apart from Truth

What is apparently hearsay, may not be so. Statement by persons out of court may be received as evidence when they are not offered as evidence of their truth. For example, in a defamation claim, it is irrelevant whether the statement is or is not true is irrelevant.  The mere making of a defamatory statement is sufficient to constitute defamation.

Similarly, in contract law, a person who makes a statement is bound by whatever a reasonable person would interpret as his intention, irrespective of his actual subjective private intentions. Such statements are not hearsay, as the fact of the making of the statement is the issue. The truth is immaterial as statements are legally significant.

The contents of a document, being an assertion made out of court, would constitute hearsay if offered as evidence of its truth. Therefore, contrary to the importance laid on documents in former times and in Continental legal systems, documents need to be independently proved, under common law evidence rules.

The existence of an appropriate written document or agreement will often lend greater credibility, where there is a dispute. Nonetheless, the document will itself require proof or grounding in verbal testimony. Deeds have special status and when they are [20] years old, apparently regular and produced from proper custody, they are presumptively valid.

State of Mind

Words spoken out of court may be introduced as evidence of a person’s state of mind, state of knowledge or intention. In many cases, statements will be the best evidence of a person’s state of mind.  Spoken words are also admissible to show the effect which the words have on another person, where this is material.  The words are not hearsay, in this context,  as they are not offered as evidence of their truth.

Hearsay evidence may be constituted by any implied assertion.  Verbal and non-verbal statements, actions, gestures may implicitly assert particular facts.  In this case, they may be excluded as implied hearsay.  On the other hand, behaviour that does not make a positive assertion, will not be hearsay.  Difficult questions of interpretation may arise in drawing the line between the two kinds of cases.

A speaker may not assert particular facts but may have assumed them. In some circumstances, this may be characterised as hearsay.  In some other jurisdictions, implied assertions are not subject to the rule or have been statutorily removed from it.  If applied too widely, many otherwise relevant statements and conduct could be excluded from being offered as evidence,  on the basis of having an element of implied hearsay.

Reform

The hearsay evidence rule is still largely applicable in Ireland.  It has been substantially reformed in the criminal context, but not the civil context. The hearsay evidence rule has been abolished in England and Northern Ireland.  It appears likely that some further reform will take place in the Republic of Ireland in the coming years.

In contrast, other jurisdictions have reformed the civil rules, in advance of reforming the criminal rules.  This is justified on the basis that the liberty of the citizen is not at stake in civil trials.  Since 1988, juries are not a feature of the vast majority of a civil trial, in Ireland, so that the justification for the rule is less sustainable, in this context.

Ssome Irish courts have suggested that some elements of the rules have constitutionally protected status. The principle of confrontation of witnesses is said to be an element of constitutionally guaranteed fair procedures. The hearsay evidence rule itself has not been categorised as a constitutional right in itself. It may constitute and elements constitutional fair procedures, in some cases. What constitutional fair procedures require, will vary with the circumstances.

Criminal Case Reform

The Criminal Evidence Act 1992 creates an exception for certain documentary evidence, in the context of criminal proceedings.  Documents include maps, plans, graphs, photographs and any other information in a non-legible form, which may be produced in a legible form.  The Act allows admission of information in documentary form, where it is compiled in the ordinary course of business.

The Act allows admission of documentary evidence, even where the person who compiled it is not identifiable, provided that he may reasonably be supposed to have had personal knowledge of the matters in question.  The information may be supplied directly or indirectly.  Where it is supplied indirectly, it must be supplied to a person who receives it in the ordinary course of business.

The court has the discretion to exclude the document in the interests of justice if circumstances suggest it is unreliable, false or it would result in unfairness to the accused.  The documents may be challenged by other evidence as to reliability. It is a condition of admission of the evidence, that a copy of the document is served in the accused, at least 21 days before trial.  A certificate that the information is compiled in the ordinary course of business is evidence of the matter stated.

Children’s proceedings.

The courts usually relax the hearsay rule, in family and child welfare proceedings. Inquiries into the welfare of children have always been regarded as inquisitorial, rather than adversarial in nature.  This principle can be traced back to wardship procedures, which have a long vintage.  The courts effectively allow hearsay evidence, in these case,  subject to a discretion to exclude it,  where it is unreliable,  and generally to give, it the appropriate weight.

The Criminal Evidence Act and Childrens Act have modified the hearsay evidence rule, in relation to children’s evidence.  In certain cases, evidence may be given by live video link. An intermediary may be allowed to assist the child, in certain types of case. Children’s Act Section 23, 1997 removes hearsay rule in relation to young children who are too young to give testimony or where the giving of evidence might be viewed as traumatic.

In appraising the weight at such evidence, the court may consider whether the statements were made contemporaneously with the subject matter, whether the hearsay is multiple, whether there is a motive to conceal or misrepresent, whether the statement has been edited or changed in collaboration with others and the circumstances in which it is given.  Rebutting evidence may be introduced to challenge written statements by children.

Civil Cases

Hearsay evidence is generally admissible in pre-trial, interlocutory stages of civil proceedings.  Similarly, in criminal matters, applications for warrants, applications for bail et cetera may be based on hearsay.  Where the liberty of the citizen is in issue, the Supreme Court has emphasised that great care should be taken to ensure that a person is not unfairly deprived of his liberty.  Hearsay evidence should be treated with care.

The Rules of Court specifically allow for evidence on affidavit in the pre-trial stages of a legal action.  Affidavits stand as evidence in themselves unless liberty is given to cross-examine.  The courts, will not generally accept hearsay evidence over verbal evidence which contradicts it without good reason.

In civil proceedings, the parties may agree to admit evidence notwithstanding that it constitutes hearsay.  If matters are not seriously in dispute, the courts encourage parties to agree on them in the interest of efficiency and saving of court time. The agreement to admit evidence does not necessarily admit the underlying facts.  The parties may alternatively admit the underlying facts, in which case, evidence would not be required at all in relation to them.

Tribunals and Other Bodies

The rules of evidence do not apply with the same rigour, in relation to hearings by tribunals and similar quasi-judicial bodies.  Constitutional rights of fair procedure apply, but what they require is variable and depends on the nature of the proceedings.  In some cases, the excessive reliance of hearsay evidence would be in breach of the citizen’s rights to a fair hearing.

The courts recognise that informal flexible and efficiency will justify the use of hearsay evidence, consistent with constitutional fair procedures.  However, the more important and critical the interest in issue, the less acceptable is hearsay evidence.  Where key constitutional rights are in issue, fair procedures generally require the right to cross-examine the person making the allegation of putting forward matters, which may lead to a determination materially affecting a constitutional right.  See the sections on administrative laws.  Therefore, where the matters concern a person’s livelihood, property or reputation, fair procedures may require the ability to challenge critical evidence.