The hearsay ruling, one of the biggest exclusionary rules in the law relating to evidence, has often been criticised. There are those who support it and those who see little relevance in the rule, and would like to see it abolished. In civil cases, the rule now has little application, and could be seen as an indicator of the growing feeling of dissatisfaction with the rule1. That said recent criminal cases have shown that the hearsay rule is still playing a part in cases and proving as problematic as ever2.
Its impossible to give a thorough look at hearsay in such little space3, but a brief over view of what exactly the hearsay rule is, will be followed by a look at some of the problems it causes, and why abolishment may seem appropriate. Cross on Evidence4 defines Hearsay as: "An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted". This is to prevent, a witness being called to testify that a person told them they saw a crime happen, though they themselves did not see it.
However the hearsay rule in operation is not quite as simple as it first seems. There is a distinction made between original evidence and hearsay evidence. Whether a matter is hearsay, and inadmissible or not depends on the purpose the evidence is produced for. For example, witness A stating "I saw X stab Y" would be original evidence. Witness B stating "I saw A crying because she said she saw X stab Y" would be inadmissible hearsay if its purpose was to prove X as a murderer. However, if A had later killed X, then B's statement could be admissible if its purpose was to prove A's state of mind.
An example is Subramaniam v Public Prosecutor (1956)5 where the Privy Council held that S had been incorrectly refused leave to recount what supposed terrorists had told him, as the purpose was not to prove the factual truth of the terrorists comments, but to prove the mental state of S. The distinction on hearsay is quite a complicated one as can be seen from the above case. However due to the hearsay ruling the courts have come to some absurd and unjust conclusions, as good evidence can be overruled regardless of which party produces it.
The case of Sparks6 is a notorious example of the hearsay rule gone awry. A white US air force officer was accused of assaulting a young girl. The defence called the girls own mother to testify that after the assault, the girl had told her mother she was assaulted by "a coloured boy". The evidence would certainly have helped the accused, but it was ruled as hearsay and inadmissible7. Neither is sparks a solitary example. 8 It is an established principle that the reliability of a particular piece of hearsay evidence does not guarantee its admissibility.
Such as the case of Sparks above, where the victim's mother was to testify. In Myers v DDP 9, Myers was charged with giving stolen vehicles new identities and selling them. The prosecution wished to admit as evidence microfilms of manufactures records which unidentified workmen had inscribed engine block numbers on. No one at any point cast any doubt on the authenticity of the microfilms, however they were ruled to be not admissible as hearsay. Lord Reid stated, "No matter how cogent particular evidence may seem to be unless it comes within a class which is admissible, it is excluded.
" A justice system that cannot allow clear evidence must surely need to correction. Despite the ruling in Myers, there has been a recent departure from the principle that hearsay is always inadmissible regardless of reliability. An intriguing case for those interested in the future of the hearsay rule is Ward, Andrews, and Broadley (2001)10, where the Court of Appeal quite openly allowed evidence it admitted was hearsay. Police were unable to independently identify W as being the occupant of vehicle, in a case regarding conspiracy to steal.
However on three occasions the occupant had told the police his name was W, he'd given W's correct date of birth, and the correct address for W. The Court gave two reasons for allowing this hearsay evidence, namely the quality of the evidence, and secondly because it also considered W's comments as a confession. It is however; still too early for us see the ramifications of this decision. Is the precedent now, that reliable hearsay evidence is admissible? The emphasis on the confession is also a problem.
Is WAB now going to be distinguishable from other cases due to this, and no change to the hearsay rule has actually happened. WAB leads onto a further problem with the hearsay principles. Judges have found the rule stands in the way of evidence that could impact on a case, especially where liberty is at stake, and search for ways around it. This can lead to the rule not being applied consistently. Judges sometimes even blatantly avoid or ignore the hearsay rule, as in Rice (1963)11, a case decided before Myers. An air ticket bearing the names of R and another M, were used to allow the jury infer that it was used by R and M.
It's strange that the ticket would not have been admissible had it claimed it was issued to Rice, but it could be admissible because it only inferred as such. Further complications to the hearsay rule and its application are found, when it is noted that the case of Rice was not mentioned in Myers, making it hard to reconcile the authorities on the matter. Was Rice overruled or are they distinguishable? In other ways, it can be said with certainty that the court is trying to evade the hearsay rule. Two cases that can be compared are McLean (1967)12 and Osbourne and Virtue (1973)13.
In McLean, a robbery victim dictated to another the number plate of the offender's car. At trial the victim could not remember what he had dictated, and had not verified what had been written. The evidence was ruled out as hearsay. In the second case, O and V had both been identified in a line out by two separate witnesses. At trial one witness could not remember identifying anyone, and the second witness did not believe the person she picked was in court. However the police officer responsible was allowed to give evidence confirming the identification's.