The Basic Hearsay Rule - Essay Example

?Introduction The hearsay rule has a great function is a criminal case. The basic rule is that ments may not be used against a criminal defendant, or a civil defendant for that matter, unless the statement is subject to cross-examination. This would mean, generally, that the maker of the statement must be present on the stand. Otherwise, this statement would be considered hearsay and inadmissible, if the statement is used to prove the truth of the matter asserted. However, the Criminal Justice Act 2003 has essentially negated the hearsay rule because it has given discretion for judges to admit statements that are made by a witness who is available to testify, if admitting these statements “is in the interest of justice,” and has given too much of a leeway for a prosecutor to declare a witness unavailable. Discussion The Criminal Justice Act 2003 states, as a general rule, that hearsay inadmissible. Section 114 (1) states that “in criminal proceedings a statement not made in oral in evidence is admissible as evidence of any matter stated if, but only if,” then it goes on to outline four different exceptions.1 One exception is for when any provision, whether in this chapter or in any other statute makes the statement admissible.2 Another exception is when “any rule of law preserved by section 118 makes it admissible.3 The other exception is when the parties agree to the admissibility of the statement.4 The fourth and final exception is when “the court is satisfied that it is in the best interest of justice for it to be admissible.”5 Further, the Act carves out exceptions for when a witness is unavailable. In this case, hearsay is admissible if the statement that the unavailable witness would give would be deemed admissible as evidence;6 the person who made the statement has been identified to the satisfaction of the court;7 and that the witness is unavailable according to five different criteria.8 The criteria are that the witness must either be dead, unfit, outside the UK, cannot be found, or is in fear.9 More problematic are the categories that state that a judge can use his or her discretion in deciding whether to admit the statement, and when the witness is unavailable. When the witness is unavailable, then the defendant cannot cross-examine the witness. This would be fundamentally unfair to the defendant. A prosecutor should make every effort to bring witnesses into court so that he or she may be cross-examined, and the statutory provisions that are used for determining whether a witness is unavailable seem too broad. One of the provisions states that a witness may be unavailable because of fear. “Fear”in this case may either be fear for that person’s life or another person’s life, or it may be fear of financial loss. It seems that it would be too simple for a witness to use this excuse. Most witnesses have jobs, and these jobs are not always understanding about having to take off of word to testify. Therefore, the witness can state that he or she is unavailable because of fear of financial loss, and then that witness’ statement can be introduced as evidence against the defendant, without the defendant being able to cross-examine. This rule seems to be weighted in favor of the prosecution, because it seems that virtually any witness can be unavailable under this particular section of the Criminal Justice Act 2003. Further, if the witness cannot be on the stand because the trial occurs on a workday, and that person could be fired, then it should be the prosecutor’s responsibility to have secured the statement, through a deposition, on a date that was convenient for the witness. This exception does not put the responsibility on the prosecutor to secure the statement, so this is another flaw. Moreover, although the court has guidelines as to when it can accept a statement under these conditions, these guidelines are rather vague. The judge may accept the statement if the statement should be “admitted in the interests of justice,” and the judge only has to have regard for the content of the statement, the risk of unfairness to the defendant, and “any other relevant circumstances.”10 Therefore, it seems that the judge has broad discretion as to whether or not to admit the statement. Leave to admit a statement is only required when the witness is in fear. Under the other categories of unavailability, the statements can seemingly be admitted without the court examining the statements. While statements made by a person who is currently dead would certainly fit the category of unavailability, the other three categories are more suspect. What, exactly, makes a person “unfit?” What does the term “reasonably practicable” mean in the section that states that a witness is unavailable if he is outside the U.K. and it is not reasonably practicable to secure his attendance, and in the section that states that the person cannot be found and the reasonably practicable steps have been taken to find him? There are not any guidelines for how to construe these terms, so these definitions of unavailability seem ripe for abuse. This section of the Criminal Justice Act 2003 is problematic because it seems that a judge may essentially admit any statement at all. The judge has guidelines that he must consider, but, in the end, the judge still has discretion on what statements may be entered. This section seems the most unfair to the defendant, because the hearsay rule is based upon such a fundamental rule of fairness – that the defendant be able to cross-examine the witness. Therefore, the Criminal Justice Act delineated careful exceptions in which hearsay testimony can be admissible. If the statement does not meet any of these exceptions, it would be unfair to go ahead and allow the statement, yet this section will do just this. For instance, hearsay can be admitted under this section even if the witness was available to testify. This follows the logic that, if the witness were unavailable, then the witness unavailability exception would be used by the prosecution. So, if the witness is available to testify, then it follows that hearsay coming from this witness would not be the best evidence. This seems clear. Yet the statement may still be admissible by the judge, even though the statement would clearly not be the best evidence, and clearly would be unfair to the defendant because of the inability to cross-examine. Mulcahy (2005) argues that these hearsay exceptions violate the right that a defendant has to a fair trial under the European Convention on Human Rights (ECHR).11 This is because there are a number of cases that were decided under the ECHR that would presumably be decided differently under the Criminal Justice Act 2003. One of the cases cited by Mulcahy to illustrate this is the case of Unterpertinger v. Austria, 110 Eur. Ct. H.R. In this case, the defendant was accused of assaulting his wife, and neither his wife, nor his step-daughter, who was also a witness, attended the trial. Instead, their statements were accepted into court and the defendant was convicted on the basis of this. Barbera v. Spain 146 Eur. Ct. H.R. was another case cited by Mulcahy. In that case, a written statement by a former accomplice of the defendant was presented into court, because the witness could not be found. A third case cited by Mulcahy is the case of Delta v. France 191 Eur. Ct. H.R., in which the witness and victim of a robbery refused to appear and the defendant was convicted on the basis of statements they made to the police. Moreover, in the case of Kostovski v. Netherlands,12 the ECHR courts held that defendants could not have fair trials unless they are able to confront witnesses, even when the witnesses are in fear of coming to court, such as the cases of parents of children who are accusing the defendant of sexual abuse. In each of these cases, the trials were held to be unfair under the European Convention on Human Rights. In each of these cases, under the Criminal Justice Act 2003, the convictions would presumably be upheld, because in each of these cases the witnesses are unavailable, either by fear or because they could not be found.13 Indeed, in the seminal case of R v. Horncastle,14 a case that was based upon the Criminal Justice Act 2003, the court dismissed the appeals of criminal defendants who were not allowed to confront witnesses against them, even though, in every case, the conviction was based upon these absent witnesses. Therefore, R v. Horncastle shows that the Criminal Justice Act 2003 is in direct conflict with the ECHR. Farrell (2007) is in accordance with Mulcahy that the hearsay provisions of the Criminal Justice Act 2003 violate a defendant’s right to fair trial.15 He states that accepting hearsay as evidence is unfair because of the fact that the witness cannot be cross-examined and his motives also cannot be examined, nor his character. The dangers are that the witness may be unreliable or have some other motive for bringing down the defendant, such as spite and the desire to cover his own tracks and “this latter point has been thrown into sharp relief by recent revelations in Northern Ireland, where it appears that some police informers in the IRA and loyalist organizations were at the very core of the activities of those groups and may have set up others in order to protect themselves.”16 Conclusion In answering the question as to whether the Criminal Justice Act 2003 has effectively removed the rule against the admission of hearsay evidence, the answer is mixed. On the one hand, hearsay is generally inadmissible, and the court’s discretion in admitting statements is not boundless. Rather, the court must consider a number of factors when admitting a statement, and, if there is evidence that these factors were not considered, the defendant would have grounds for appeal. On the other hand, the judge does have a considerable amount of discretion, and the most problematic areas of the hearsay evidence laws are that the judge may admit statements from a witness if it is in the interests of justice to do so, and the rule about admitting statements from an unavailable witness. In the first instance, it seems fundamentally unfair to the defendant – if the witness is available, then that witness must testify. Period. However, this section of the Criminal Justice Act negates the requirement for the witness to be unavailable. Therefore, it seems that, under this provision, virtually any statement may be admissible if the judge deems the statement to be in the best interests of justice to admit it. While the judge must have regard for a number of factors, therefore the discretion is not boundless, in the end, it is truly in the discretion of the judge whether to admit the statement. In the second instance, the conditions under which a witness is deemed unavailable seem too broad. What witness is not in fear of some kind of financial repercussions for testifying? Most witnesses will have a job, and, even if they are self-employed, testifying in court will be a financial burden for them. Therefore, this exception seems too easy. Even the other exceptions are too broad, as there is no guidance about certain terms – such as “reasonably practicable” and “unfit.” The prosecutor should have a high burden to show his witness to be unavailable, but this section does not impose such a burden on the prosecutor. Therefore, getting statements in under this exception would seem to be too easy as well. Because of these two exceptions, the prohibitions on hearsay are effectively nil. The solution would be to nullify the exception that states that a judge has discretion to admit any statement if it is in the interests of justice, simply because this exception will be used when the witness is available to testify, and, if the witness is available to testify, then that witness must testify. The other solution would be to tighten the requirements that a witness must meet to be considered unavailable. The stakes for the defendant are too serious to these kinds of loopholes to be present. Source Used Criminal Justice Act 2003. Michael Farrell (2007) “The Challenge of the ECHR,” Judicial Studies Institute Journal 2: 76-88. R. v. Horncastle [2009] UKSC 14 Conor Mulcahy “Unfair Consequences: How the Reforms to the Rule Against Hearsay in the Criminal Justice Act 2003 Violate A Defendant’s Right to a Fair Trial Under the European Convention on Human Rights,” B.C. Int’l & Comp. L. Rev. 28: 405-427. Kostovski v. Netherlands (1990) 12 E.H.R.R. 434. Read More

 

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