Hearsay Evidence Use - Essay Example

114294 HEARSAY EVIDENCE The Criminal Justice Bill is heralded as the harbinger of modernisation in the legal system, mostly in favour of witnesses, victims and the communities. It has one mission: reducing the crime, helping the fallen, and preventing further criminal activities, covering areas like detection of the crime, arranging the witnesses, punishing the deserving and the rehabilitation. According to the legal experts it has narrowed down the gap between prosecution and justice while invoking the public confidence in the method of detection and prosecution in vogue at present in United Kingdom. It is also concentrating on the punishment of the criminal by plugging the loopholes that might get an apparent criminal off the hook, while giving more importance to the protection of the innocent. "Hearsay evidence can be thought of as:- any statement made otherwise than by a person while giving oral evidence in the proceedings, which is tendered as evidence of the matters stated." http://www.forensicmed.co.uk/hearsay.htm Hearsay evidence is the second hand information that is used as evidence and it does not have any proof of its existence. It cannot be proved beyond doubt, and the doubt always exists even after the judgement. It is impossible to say that this really happened, but even the most brilliant law expert can only say that it might have happened. This made it unpalatable for the use of courts in earlier days. But now the act, looking at the importance and possibilities it holds, has made it admissible. "It occurs when a witness testifies NOT about something they personally saw or heard, but testifies about something someone else told them or said they saw. Hearsay usually involves an attempt to get some crucial fact entered into evidence that cannot be entered into evidence by any other means," http://faculty.ncwc.edu/toconnor/405/405lect11.htm It includes not only oral statements, but also gestures, like nodding of the head etc. In entering this as real evidence, Court will be depriving the other side a chance to process the evidence, by cross examining the witness, or verifying the evidence. There is nothing to cross-examine, as it is a kind of story, compared to other hard evidences, which glorify under solid proof. But there is an exception in the confession statement, where hearsay evidence is upheld. "The most important exception to the hearsay rule is admission or confession evidence. It is generally assumed that a party in a case would not make a statement against his or her own interests unless the statement was true" http://oasis.gov.ie/justice/evidence/hearsay_evidence.html As the confessions are an exception to the rule of Hearsay Evidence, even before the Act, a person stating another person's confession of a crime in the court, had been admissible. Victims of domestic violence sometimes could find it difficult to testify in the Courts for a variety of reasons and the statements of prosecution on their behalf might take the form of hearsay statement, or a secondary statement. While admitting these statements, Court does adhere to a lot of conditions and circumstantial proof. Statements made by the patients to the Medical officers usually are not disclosed as it comes under the priviledged category. But if disclosed, keeping the context in view, they might be admissible, even though it comes under the hearsay evidence category. The relevant rules for the hearsay evidence, are the best evidence rule, the opinion evidence rule and the self-serving evidence rule. Before the Act in question came into being, the rule prevalent was: "A.2.1. The Rule: Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein." http://www.irb-cisr.gc.ca/en/about/publications/weighevid/evidence_app_e.htm Hearsay evidence was thought to be untrustworthy, for the following reasons: 1. "The author of the statement is not under oath and is not subject to cross-examination, 2. There is no opportunity to observe the demeanour of the declarant, 3. Accuracy tends to deteriorate with each repetition of the statement; 4. The admission of such evidence lends itself to the perpetration of fraud; 5. Hearsay evidence results in a decision based upon secondary and therefore, weaker evidence rather than the best evidence available; 6. The introduction of such evidence will lengthen trials," http://www.irb-cisr.gc.ca/en/about/publications/weighevid/evidence_app_e.htm Under the Best Evidence Rule, which states that "The law does not permit a man to give evidence which from its very nature shows that there is better evidence within his reach, which he does not produce" http://www.irb-cisr.gc.ca/en/about/publications/weighevid/evidence_app_e.htm Sometimes, the court has reasons to believe that there are documentary evidences in the reach of a particular witness; but to impress the court in the right or wrong way, or to serve his own purpose, the witness might venture into the hearsay evidence, hiding the documentary evidence. Under those circumstances, however innocent and trustworthy such hearsay evidence could be, Court would not allow it, as there is a possibility of better evidence. There are many reasons for discarding the hearsay evidence, not only as useless, but also as dangerous. It also has a negative effect on the minds of Jury and the Judge, by leaving an impression of suspicion that does not have a proper base. So, Courts always hesitated to interpret hearsay, or admit it as evidence into the proceedings. Sometimes, it could be a piece of gossip or malicious invention, or even a baseless rumour. Frequently, Court is left with only hearsay evidence and then it is a dilemma for the Court to pick and choose. "There are times when hearsay evidence is perhaps the right thing to do -- as in cases where a young child has been molested -- and, there are times when hearsay evidence is the only thing to do -- as in cases where the original witness has died or is unavailable", http://faculty.ncwc.edu/toconnor/405/405lect11.htm Recent years have seen the greater importance of the hearsay evidence. Increasing mobility and uncertainty of the whereabouts of potential witnesses has created a crucial problem for the courts. They have to either depend on hearsay evidence, or have to be ready to drag on the cases forever, till a certain witness or evidence crops up from an unknown and unreachable place, under untraceable circumstances. Even after doing that, Courts might find it difficult to admit such evidence. In whichever way the Courts might decide to deal with hearsay evidence, there is no escaping the fact that it is definitely a growing area of evidence law. In the Criminal Justice Act 2003, Part II, 114, the Admissibility of hearsay evidence had been clarified and according to the new act, the oral evidence could be admissible as evidence if: a) any provision of this Chapter or any other statutory provision makes it admissible; b) any rule of law preserved by section 118 makes it admissible, c) all parties to the proceedings agree to it being admissible, or d) the court is satisfied that it is in the interests of justice for it to be admissible. It mainly depends on "how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case" http://www.opsi.gov.uk/acts/acts2003/30044--m.htm Another problem of this evidence is the inapplicability of perjury into it. Also it depends on the weight and importance of the evidence, the circumstances of the evidence, how reliable and truthful it sounds, the integrity of the person who is bringing in this evidence, the measure of difficulty to such an evidence as the ultimate truth, and how biased or prejudiced, or how independent and justified the evidence on the whole is. It is also admissible where the witness is untraceable, or dead, or a child who cannot speak for himself, and another person doing so becomes necessary, or if the relevant person is mentally retarded, or hospitalised, or in a coma, or seriously ill. There is another possibility where the person is facing a serious threat of being injured or killed by coming into the open to give evidence in the Court and there is little possibility of giving him total protection. This is a contentious matter; still the Court will weigh the circumstances and admit such a statement if it is satisfied that the person is, without doubt, under great threat and such a threat is rather from unknown quarters from which the person concerned cannot be effectively protected. Certain business documents, especially belonging to the family business, confessions, expert evidence, previous statements of witnesses, etc. are permitted, but there again, it is a matter for the Court to decide for or against the admissibility of such evidence. "Section 114 of the 2003 Act provides that a statement not made in oral evidence in criminal proceedings is admissible as evidence of any matter stated only on certain conditions. The meaning of "statements" and "matter stated" is explained in section 115 of the 2003 Act. "Oral evidence" is defined in section 134(1) of that Act. For the introduction of hearsay evidence in the Court of Appeal, see rule 68.20" http://www.dca.gov.uk/criminal/procrules_fin/contents/rules/part_34.htm The Prosecutor has to give formal notice to introduce the hearsay evidence prior to doing so, and the party who receives the notice, has the right to oppose it. The court, of course, has to the power to arrive at one of the three following decisions: a) dispense with the requirement to give notice of hearsay evidence, b) allow notice to be given in a different form, or orally; or c) shorten a time limit or extend it (even after it has expired). http://www.dca.gov.uk/criminal/procrules_fin/contents/rules/part_34.htm Thus, the present Act abolishes the previous common law rules and statutory provisions. The new law has come as a relief for all the parties concerned. It will be helpful for the victim, protects his rights of justice, for the alleged criminal, if he was being implicated, for the prosecution and for the defence. It makes matters clearer to the Court by giving the Court more opportunity to arrive at an independent decision. "The new hearsay provisions apply equally to the defence as to the prosecution with the added safeguard for the defendant that any matters requiring proof must be proved to the criminal standard by the prosecution and on a balance of probabilities by the defence". http://www.cps.gov.uk/legal/section13/chapter_v.html It looks like a sea change from the stiff 'non admissible' days. But the experts fear that extremely technical points have been included in the new law, even though it does not seem so, at first glance. Courts are given too much of responsibility and simplifying the rules stated in the said law might not be an easy decision to arrive at. "Although far less controversial than the evidential provisions on character, the new law on hearsay involves extremely technical changes. There is still a hearsay rule with exceptions, and the aim, at least, of the legislation is to simplify troublesome aspects of both the rule and the exceptions. Although the familiar structure is retained, the Act represents a significant shift towards admitting more evidence if it is relevant and reliable," http://www.northeasterncircuit.co.uk/documents/necircuit_hearsay.pdf There are many grounds on which the courts could be misled, confused and prejudiced. It is not easy to assess each piece of evidence impartially without getting emotionally involved in it. One must agree that every hearsay evidence has a personal appeal and individual quality of its own, which borders to be emotional compared to the dry, stipulated, proved evidence that is provided in the court in a routine way of presentation and acceptation. There is always something special about a hearsay evidence that touches the heart, not the mind, and immediately prejudice the judge and jury either in its favour or against it. The hearsay evidence itself has a biasing quality of its own, even though it is difficult to pinpoint the area from where it attains this quality. When this is the case, jury and judge will be hard pressed to arrive at a proper judicial, uninfluenced decision about the admissibility of the evidence. And once the decision is made either in favour of or against it, naturally the whole case gets influenced in the same way. It is said that hearsay evidence, with its emotional and heart wrenching appeal, could sweep away justice off its feet, which could be an arguable and overstated, rather doubtful fact. But, if it happens, it could be a terrible blow against the truth, under difficult circumstances. Another criticism, levelled against the hearsay evidence is that it could be a manipulator's paradise. A manipulator, with the right kind of ability and professionalism in acting, could create a believable scene with the right amount of emotion and pathos, and it is not at all difficulty to convince any human being, if it is done with all the correct ingredients and this could unfortunately lead the Court to admit such an evidence. In the course of justice, we come across many such instances, where even a professional psychologist would fail to separate truth from play-acting. It only requires an exceptionably talented actor to present the evidence. So, how can the Act rely on Judges and juries to rise above such manipulations Admissibility of hearsay evidence gives way to various kinds and forms of manipulations, half truths, speculations, presumptions, all out to convince the court with their supposed truthfulness, and this means, further hindrance in the affairs of court in arriving at a proper and right decision. The cynics of the evidence permissibility also ask, where is the end to such manipulations If evidence need not be backed with proper proof, there is no end to the evidences that could be admissible on various grounds. It might not happen in the same case; but definitely it will happen and will continue to do so, almost in every case, influencing the judges and justice. Every case has some emotional and weak spot to support itself. If the lawyers start manipulating such spots, to introduce the right and self-gratifying kinds of hearsay evidence, it is not impossible for them to alter the course of the case. Undoubtedly the hearsay evidence, mainly exists on psychology; psychology of the audience, the Jury and the Judge. We should not forget the media that has become a meddler even in matters of court. It would have been a much better way of doing things, if the matters of justice had been given as little publicity as possible, because eventually, publicity would harm the delivery of justice. By coming under the public glare, juries and judges buckle, which is not unnatural. But media is the biggest player, glorifying the evidences, characters and sometimes successfully carrying on a judicial and psychological warfare against the judges, court officials, witnesses (for or against) and building up emotional attachments and sympathy, usually for the alleged convict. Court cases are not rare where jury and the judges get pressurised to a very large extent, and end up sometimes, even in convicting an innocent person, only because the public opinion had been against him. Hearsay evidence comes under this emotional warfare and is closed linked with media, public mentality, justice psychology, and more importantly, with the psychology of the lawgivers, which could be a dangerous trend. And against such formidable adversaries, lawgivers, being ordinary humans, will definitely be helpless, according to the critics of the admissibility. Hearsay evidence, a kind of evidence without legs, but increasingly appealing due to its anonymity, and easiest thing in the world to invent, cannot become a great contribution in the hard path of justice delivery, they argue. These criticisms are definitely wise and believable to a certain extent. But the fact need not be so black. We have seen the judges and juries rising above all petty matters and imparting great justice of equilibrium and insight. Judges especially are used to criminal proceedings like fish in the water, and can smell right and wrong evidences and can sift them effectively. They look for the psychological evidences, body language, theatrical delivery, emotional pathos, relationships, advantages, and enmity even though sufficiently camouflaged, and have the high intelligence to separate innocent and well-meaning evidence from the masterminded one. And what is more, very rarely they make a mistake in their trade! Looked from this angle, admissibility of hearsay evidence had been of great advantage to the law. There are many ways of interpreting the justice and as the famous dictum goes, it is more important not to punish the innocent, than punish the guilty and the judicial machinery is tuned to this dictum. ""In summarising the accuracy of the penal system in identifying and dealing with people who infringe its prohibitions it can be said that the process of trial is a minor source of inaccuracy simply because so many of the accused plead guilty; in so far as it is inaccurate, most of its mistakes operate in favour of the individual, and not against him," (Walker, 1971, p.16). Sometimes, the judges must be feeling a twinge of conscience thinking back those cases that would have altered with a bit of help from hearsay evidence, and must have wondered what effect it would have made, if allowed! The Act is not unaware of the pitfalls of hearsay evidence, as can be clearly seen from the statutes; but the evidence became admissible because the degree of reliability is higher than the unreliability. "Hearsay statements from an unidentified source may carry an unacceptably high level of risk of being unreliable. Even when the identity of the declarant is known the risk of error of transmission is obviously greater if a statement is the product of multiple hearsay than first hand hearsay," (Criminal Justice Act, 2003, p.44/116, 2003c.44). Judicial system in UK is a collective body of many agencies working towards one goal and every evidence has to come from various stages and levels and naturally this means that even the hearsay evidence has to pass across many such hindrances, where it gets diluted, repeated, sifted and weighed. "The criminal law does not enforce itself. To understand a system we need to consider how law enforcers, prosecutors, lawyers, magistrates, judges, probation officers, and prison officers perceive their job and their function within the system", (Croall, 1995, p.4). This shows the stages through which every scrap of evidence has to go and how little opportunity is there for an absolutely unreliable piece of evidence to pass across so many formidable stages. BIBLIOGRAPHY: 1. Criminal Justice Act, 2003, (2004), Thomson, Sweet & Maxwell, London. 2. Davies, Croall and Tyrer, (1995), Criminal Justice, Longman, London. 3. Easton, S. and Piper, C. (2005), Sentencing and Punishment, Oxford University Press. 4. Turner, J.W.C., and Armitage, ALL, (1964), Cases on Criminal Law, 3rd ed., Cambridge University Press. 5. Walker, N. (1971), Crime and Punishment in Britain, Edinburgh University Press. ONLINE SOURCES: 1. http://faculty.ncwc.edu/toconnor/405/405lect11.htm 2. http://www.opsi.gov.uk/acts/acts2003/30044--m.htm 3. http://www.dca.gov.uk/criminal/procrules_fin/contents/rules/part_34.htm 4. http://www.cps.gov.uk/legal/section13/chapter_v.html 5. http://www.northeasterncircuit.co.uk/documents/necircuit_hearsay.pdf 6. http://www.forensicmed.co.uk/hearsay.htm 7. http://oasis.gov.ie/justice/evidence/hearsay_evidence.html 8. http://www.irb-cisr.gc.ca/en/about/publications/weighevid/evidence_app_e.htm 9. http://www.irb-cisr.gc.ca/en/about/publications/weighevid/evidence_app_e.htm 10. Read More