The hearsay rules allow the admission of documents provided that they are proved. For example, a photograph might be proved by the person who took it.
Anomalies arise in the case of an automatically taken photograph and, by extension, automatically taken visual recordings and other data recordings. The criminal courts have allowed the admission of computer-manufactured output as real evidence where it is produced mechanically, notwithstanding that it is produced mechanically without human intervention.
The Electronic Commerce Act provides that evidence should not be denied admissibility, solely on the grounds that it is in electronic form or not in an original, where another electronic form might be deemed to be an original or better copy.
Hearsay evidence is an out-of-court statement offered as proof of its contents. The principal objection to its admission is that it is not capable of being tested by cross-examination. It is not given an oath. It is unlikely to be given in a formal setting where there is an obligation to tell the truth.
An out-of-court statement which is not offered as evidence of the truth of the contents would not constitute hearsay. Statements made out of court may indicate a state of mind. They may be admissible where they would be evidence of this fact regardless of the truth of their contents. They show the maker’s state of knowledge. In this case, it is “original” evidence and not hearsay. It must be proved by admissible evidence.
The hearsay evidence rule applies to information generated by all kinds of mechanical, electronic and other automated means and processes. It may be accepted as physical evidence provided the machine which produced it is shown to be functioning at the relevant time.
Communicative conduct may constitute hearsay. This may be so if it is offered as evidence of the truth of the matter asserted. Conduct that does not declare or assert facts will not generally be hearsay. Orders, questions and exclamations do not generally assert any proposition. Such evidence may be admissible as evidence of a particular emotional state or reaction.
Exceptions to Hearsay Rules
A confession or admission against the maker’s interest is admitted as evidence of its truth by way of exception to the hearsay evidence rule. An admission by a party adverse to his interest is generally admissible as evidence against him.
The Criminal Justice Act provides a means for the formal proof of an admission. Any fact of which oral evidence may be given in any criminal proceedings may be admitted by or on behalf of the prosecution or the accused, and the admission by any party of any such fact shall be, as against that party be conclusive evidence in those proceedings of the fact admitted.
An admission for this purpose
• may be made before or at the hearing,
• if made otherwise than in court, shall be in writing,
• if made in writing by an individual, shall be signed by the person making it and, if so, made by a body corporate, shall be signed by a director or manager, or the secretary or clerk or some other similar officer of the body corporate,
• if made on behalf of an accused who is an individual, shall be made by his counsel or solicitor,
• if made at any stage before the hearing by an accused who is an individual, must be approved by his counsel or solicitor either at the time it was made or subsequently, and any signature referred to shall be taken to be that of the person whose signature it appears to be unless the contrary is shown.
An admission for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial). An admission may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.
Statements by deceased persons against their financial or proprietary interests are admissible. The person making the statement must believe that it is contrary to his or her interests at the time.
An exception to the hearsay evidence rule arises in relation to statements that are part of the transaction and so closely associated with it that they are part of the thing done, so that they are an item of real evidence in the sense of the thing observed rather than reported statement in relation to it. There must be a close relationship with the relevant events. This must be such that this is an integral part of the matter in question, the so-called res gestae.
It recognises that the human utterance is a fact and a communication and that it may be interwoven with the relevant actions, such that the actions cannot be understood without reference to the words accompanying them.
The exact extent of the principle is unclear. It may be difficult to delimit how central particular facts, circumstances and utterances are to the matters in issue.
One class of the exception refers to spontaneous excited utterances. They imply a sudden and startling event, bringing an instinctive, perhaps excited or emotional utterance. The spontaneity is assumed to make it unlikely that the statement was fabricated. The utterance must be closely related to the events concerned, such as to preclude or minimise the risk of fabrication.
In modern times, the courts have looked at the context in which statements are made in judging whether they are sufficiently contemporaneous and integral for the purpose of their rule. There may be a greater risk of fabrication, error or distortion in certain contexts relative to others. which do not depend on how spontaneous or contemporaneous the statement may be. It is the matter for the judge to determine how integral to the events the utterance is. The context will illuminate the likelihood of fabrication.
The principle extends to contemporaneous statements made by persons whose actions and conduct are in issue. The contemporaneous nature of the statement lends credibility, and the involvement of the person in the relevant events in many cases means that the statement is indicative of their state of mind, condition, physical condition, emotional condition or knowledge and, accordingly, is not hearsay at all in this context.
A statement may illuminate a person’s physical condition, health and well-being.
Statements in relation to a person’s state of mind will not generally constitute hearsay where they are not offered as evidence of the truth of what is said. However, some statements which constitute hearsay are allowable under the contemporaneous statement exception.
Statements which accompany acts and explain the party’s intentions may not breach the hearsay rule. A statement accompanying the acts may be offered as evidence of the state of mind of the person doing it. When the motive or the reason for doing an act, the intention or motive i
Where it is an issue, contemporaneous statements may be evidence of such motive, intention or reason.
A dying declaration is admissible as an exception to the hearsay evidence rule. It is presumed to be trustworthy in view of impending death. In modern times, it is more controversial as to whether impending death is a sound basis for assuming truthfulness.
Some of the cases involve dying declarations made by a person who is the victim of the offence concerned. Such cases are under the scope of earlier exceptions and in that they are contemporaneous with the actual event and fall more readily into this category.