Hearsay Exceptions

Table of Contents

Admissions I

A major exception to the hearsay rule is that a statement made against the maker ’s interest is admissible, even if it is hearsay. The reason is that it is presumed that a person will not have a motive to make a false statement against his own personal or financial interests

In civil cases, an admission may be made formally in the pleading themselves. Alternatively, it may be made in response to a notice to admit facts prior to trial. It may be informally agreed.

Generally, admissions made by third parties are inadmissible as hearsay. However, in some cases, the words and statements of third party will bind a party to the action. This may happen, for example, where there is a relationship of agency, partnership or title involved.

Admissions by an agent may be treated as the party’s admission. It must be made as the time the agency was in place. The agent must have express or implied authority to make the admission.

Partners commonly have authority on behalf of each other in relation to litigation. See the sections on partnership law. The admission must be made in the course of the partnership.

Admissions II

Admissions are allowed as exceptions to the hearsay rule. An admission is a statement made by the other party to proceedings which is adverse to and contrary to his interests. The exception does not apply to the statement of third parties. An admission contrary to one’s interest is admissible as evidence of the truth of its contents. A statement contrary to interests may be proved as evidence of the truth of its content.

The presumption is that a person will not normally make a statement contrary to his interest. A person will not, in the normal course of things fabricate a statement that is adverse to his personal or financial interests. On the contrary, such a statement viewed as especially probative.

In the criminal context, an admission to a person in authority, such as the Gardai,. is a confession. Confessions obtained by the Gardai are subject to certain rules designed to protect a person who may confess to something under a physical or psychological pressure. See the separate section on criminal evidence.

An admission may take place in some circumstances, by silence. Where a person fails to deny an assertion made by another verbally or in writing, on an occasion or in circumstances in which it would be reasonable and usual for a person to make a denial, then failure to deny, may constitute an admission. Similarly, where a person does not deny a statement on an occasion when he would be reasonably expected to deny it, there may be an inference from the silence equivalent to an admission.

Admission of Agents

Admissions by an agent may be treated as the party’s admission. It must be made at the time the agency was in place. The agent must have express or implied authority to make the admission.

Partners commonly have authority on behalf of each other in relation to litigation. See the sections on partnership law. The admission must be made in the course of the partnership.

Admissions by one joint tenant do not automatically bind his fellow joint tenant.

Hearsay; Limits and Exceptions

Hearsay evidence can cover statements, written documents, conduct and implied assertions. Some evidence, which might appear at first glance, to be hearsay is not, in fact, hearsay because the question of its truth is not relevant. In this case, the truth of the content of the documents will not matter. For example, letters constituting an exchange of correspondence constituting a contract are admissible as proof of their content, as the truth or falsity of the underlying offer and acceptance is irrelevant as a matter of contract law.

There are limits on the extent to which conduct and implied assertions are subject to the hearsay exclusion. Conduct is less likely to be fabricated than deliberate statements. It is only conduct and behaviour that involves an express or implied assertion that is likely to be considered equivalent to a hearsay statement.

The Courts have been reluctant to extend the hearsay rule too far, as otherwise evidence of intention and other matters requiring circumstantial evidence could rarely be proved.

Quasi-Hearsay

Statements and documents will often be allowed as evidence on the basis that they do not constitute hearsay. Many statements and documents, particularly in a commercial context are legally significant and relevant irrespective of whether or not they are true. The hearsay rule does not apply in these cases because the statement is not offered as proof of its contents.

In the context of contract and many other legal situations, the truth or otherwise of a statement are irrelevant. What matters is words spoken and written and their “truth” or otherwise is irrelevant. A person is bound to a contract if a reasonable bystander would believe that he was assenting to the offer and agreement. The truth or otherwise of the offer or acceptance is irrelevant. The statement is not hearsay.

Sometimes the fact that a statement has been, is itself the relevant question. In this case, it is not hearsay. Statements made by a person or to a person may be admitted in order to show their state of mind, information and belief. The fact that a particular person was told something is allowed as proof as to its effect on them and in particular how it would affect his knowledge, information and belief. In this case, the truth or otherwise of the statement is irrelevant.

Statements produced by mechanical or electrical devices or machines without human intervention are generally admissible. Statements which prove a person\’s state of mind are admissible even though they are made out of Court. What a person says will often be the best available evidence of his state of mind.

Spontaneous Statements – \”Res Gestae\”

Spontaneous statements which are part of the matters in dispute may be permitted, as so-called “res gestae”. In some cases, they are not true exceptions to the hearsay evidence rule as they are not admitted as proof of their content. They may, for example, be admitted to show a person’s state of mind at the relevant time.

The statement must be spontaneous and made by a person participating in the relevant events or observing them. For example, a statement made by a witness to a crime, as it happened or within moments thereafter, may be admissible as such on this ground. Over time, the requirement for spontaneity or contemporaneity has eased slightly.

Latterly, the courts have allowed evidence of statements, provided they are very closely associated with the relevant time, place, and circumstances where they are so closely connected that they may be regarded as part of the circumstances themselves, in the same way as a piece of real evidence found at the scene and not merely a later narration.

The statement must be such that it was made in circumstances of spontaneity or involvement in the event concerned so that the risk of concoction is small. If the statement may be regarded as a true reflection of what was actually happening, it may be admitted as evidence.

In contrast, if the statement gives an account of a past event or the speaker is disengaged from the events concerned, it is inadmissible as hearsay.

Spontaneity

Statements made by a person which accompany a relevant act may be admissible as evidence of their truth. This is a further aspect of the principle that statements which are an integral part of the event itself are admissible.

Statements made contemporaneously with a particular act or event are usually allowed. This is because the element of spontaneity means that they are unlikely to be fabricated. The exception applies where it is made without the opportunity for reflection and in the course of the event or matter in dispute.

The statements which are an integral part of the matter or transaction which are made spontaneously and without the opportunity for reflection are presumed reliable and admitted. They are allowed even though they constitute hearsay. Such statements are often described by the Latin term “res gestae”. They are an inherent part of the act or event in issue.

Spontaneous statements made by persons involved in the event are admissible as evidence of their truth. Such statements must be made without the opportunity for reflection. For example, if an incident occurs, statements which are an integral part of the incident concerned, are presumed to have greater weight because of the absence of opportunity for fabrication, reflection and consideration.

In deciding whether that statement is sufficiently spontaneous, the Court takes account of:

the possibility of fabrication and distortion;
whether the event is so unusual or startling that it must dominate the thoughts of the person who makes the statement;
error, malice and other human weakness.

Statements made by victims after they had been attacked naming the assailant would be generally admissible on this ground.

State of Mind and Intention

Statements in relation to a person\’s state of mind or emotion at the relevant time may be received as evidence of the truth of their content. The statement must relate to the state of mind of the person who makes the statement. It must coincide with the emotion and must state that the emotion or intention or state of mind is felt. On this basis, a statement that person is hungry, distressed, anxious etc. may be received as evidence of such fact.

Statements of future intentions are permissible as evidence of intention on that date. For example, a statement by an accused that he intended to kill a particular person is admissible as evidence of this intention. However self-serving statements are not allowed.

A statement of a person\’s physical sensations at the requisite time may be allowed as proof of the same. The statement must be contemporaneous. Circumstances which explain an event and accompany it may be allowed as evidence of intention. It is not admissible as evidence of a person’s physical sensation.

For example, market surveys have been admitted in passing off cases are admitted as evidence of the opinions and beliefs of the person who completes the survey. There are limits, however, to the admission of such evidence. On occasions, the courts have disapproved of the survey evidence, of the basis that it cannot be contradicted by cross-examination. All of the background facts, including questionnaires, answers and circumstances may be required to assess the accuracy and context of the survey evidence.

Deceased Person Cause of Death

Certain statements made by deceased persons are allowed as evidence of their truth, which would otherwise constitute hearsay. This is a pragmatic principle, based on non-availability of the maker of the statements. In addition, the exceptions are such that the possibility of fabrication is unlikely.

The declaration must be spontaneous and unprompted. It may be written or verbal. It must be relevant to the cause of death.

A declaration made by a dying person as to the cause of death is allowed in evidence. It must be shown that the person had no hope of recovery. In murder and manslaughter cases, a statement by the victim may be admissible on this ground. This exception applies only to the causes of death.

Statement Against Interest

Generally, an admission is admissible, only if made by the other party to proceedings. A statement by a person now deceased, against his interest is admissible. In this case, the person need not be party to the proceedings.

It is necessary to show that the deceased had actual knowledge of the matters concerned and that he knew that the statement was against his interests. An example may be where a person admits that he owes a particular debt

The presumption is that a statement against a person\’s financial or other interests will not generally be made. The statement must be against the interests of the maker of the statement at the relevant time. He must know that it is against his interest.

Records

There are various other classes of statements by deceased persons which are allowed as evidence. These include statements as to family relationships, births, marriages, deaths, intestacies, the identity of parents, statements as to public and private rights. Entries in records, diaries and registers made by deceased persons even if made in private business records.

Written declarations made by a person in the course of a duty, who is now deceased, are admissible. The information must have been recorded contemporaneously. The recording or statement must have been made in the course of an office or employment, where it is the maker’s duty to so record.

Statements as to a person\’s pedigree (i.e., family relationship) by blood relatives or spouses of blood relatives of the person whose pedigree or relationship is in dispute, are permitted.

Declarations by persons which explain with the contents of a will are admissible. Where the will is lost, declarations made contemporaneously with the will or shortly before or afterwards, are allowed as secondary evidence of its contents.

Public Records

Declarations made by a deceased person in the course of duties are admissible. This may include notes or entries in records and registers made by a public official. The presumption is that a person is unlikely to fabricate a note or declaration made in the course of the duty.

Statements in public record and documents may be admissible as evidence of their truth, by way of an exception to the rules. The document must be made under a duty to inquire into the relevant information. It must concern a public matter. The document or records must be intended for public inspection.

Statements in public documents may be generally proved by the production of a certified copy. Where a public officer makes records in the course of his duty a certified copy is admissible as sufficient evidence. In many cases, statutes provide that a certified copy in a certain form is admissible as proof of its contents.

Statements in works of reference and authorities on a particular subject are admissible as evidence of the truth of their content.

Children’s Evidence

Statements made by children in civil proceedings which would otherwise be hearsay may be permitted if the child is unable to give evidence by reason of age or where the giving of evidence would not be in the interests of the child\’s welfare. The court may exclude evidence if it is not in the interests of justice to admit it.

There are certain considerations which must be taken account on. In particular, any resultant unfairness to the parties must be considered. Notice must be given before the power to receive such evidence may be invoked. The notice must include particulars of the evidence as is reasonable and practicable.

The court must consider the reliability of the statements with reference to the motivations of the children to conceal and misrepresent, contemporaneously, whether multiple hearsay is involved and the possibility of collaboration. A child\’s unsworn statement may be allowed in evidence on the above basis.

Public Documents

.Document and entries made by persons under a duty (e.g. public official) to compile records are admissible. The exceptions required that the person (public or private) has a duty to keep a particular log or record. The person making the declaration must have had a duty to ascertain the facts and record them. He must have had personal knowledge of the matter concerned at the time the record is made.

A statement in public documents and records is admissible. Certain statements in bank records are deemed admissible by statute . in a statement in many public records are deemed admissible by legislation .

A statement in authoritive textbooks may be received. Permission of the court is required to read these as evidence.

Reform

In other jurisdictions, in particular, Northern Ireland, England and Wales the hearsay rule has been largely abolished. Subject to certain notices and protections, hearsay is generally admissible in civil cases Northern Ireland and England and Wales.

In these jurisdictions, the long standing criticism that hearsay evidence should not be automatically excluded, even if it is logically relevant and probative of the matters in dispute, has been accepted. The Irish Law Reform Commission has recommended that the hearsay evidence be reformed.

The Law Reform Commission report on hearsay recommend that the rule be abolished but that judges have a discretion to exclude statements made other than in Court. As in Northern Ireland, England and Wales, it was proposed that the law would be reformed to provide notices of the proposal to offer hearsay evidence.