The law relating to hearsay evidence in criminal proceedings is complex. Hearsay evidence is, essentially, any oral or written statements made by a person who is not testifying in court but those statements are relied upon to prove that which is contained in them.
For example, a witness in a murder trial heard a man say he saw the accused stab the victim to death. The statement is hearsay because it is being put forward by someone who may not have seen the incident but heard about it, but is relied upon to prove that the accused stabbed and killed the victim. The rules relating toare different.
Hearsay can be identified as hearsay by considering the following issues:
Which statement do you think may be hearsay? Was that statement made outside of court proceedings and not by a witness during the trial?
What was the aim of the person who made the statement? Was it to make another person believe what was said in that statement or, to make someone else act upon the facts as if they are true? If neither of these were intended, the statement is not hearsay and can be admitted as ‘original’ evidence.
What is the purpose of admitting the statement? If the purpose is to prove that what was said is true, (for example, the accused said: “I’m going to kill you”, and this statement is needed in court to prove that the accused killed the victim) then it is hearsay. On the other hand, if the purpose of admitting the statement is to prove that the statement was made by the accused, then it is admissible as original evidence.
The general rule is that hearsay evidence is not admissible in a criminal trial. However, there are limited circumstances in which hearsay evidence is admissible:
Under the CJA 2003, hearsay is admissible in the following situations:
Hearsay is admissible under any of the following common law exceptions (also set out in section 118 (1)) CJA 2003):
The court will only exercise its discretion under s114(1) where admissibility under other statutory provisions or common law rules is not permitted. The court must consider various factors in considering whether to exercise its discretion in favour of allowing hearsay evidence to be admitted under s114. These factors include its probative value to a matter in issue; the circumstances in which the statement was made; the reliability of the maker of the statement and of the evidence of the making of the statement itself; and whether oral evidence of it can be given (and, if not, why not).
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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