Hearsay Evidence in Criminal Justice - Case Study Example

hearsay evidence Hearsay Evidence: [The Effects of the Criminal Justice Act 2003] I Introduction To begin with, it may be d that the rule against hearsay in criminal proceedings, like many other past and present rules of inadmissibility, had its origin in the late 18th and early 19th centuries when the odds at trial were so stacked against defendants that judges felt they needed to strike some sort of balance.1 Hearsay evidence is often defined as “an assertion other than one made by a person while giving oral evidence in the proceedings”2 which is adduced as evidence of any fact or opinion asserted3, and is not given by the witness live. The common law has long recognised that such evidence is generally inadmissible in criminal proceedings4, and that the primary means by which evidence should be received in a criminal trial is in person, before the jury or justices, with witnesses speaking from first-hand knowledge, not simply repeating what others have told them.5 In hearsay rule the records are in principle inadmissible evidence of the matters they contain, and where a witness gives oral evidence only the oral evidence counts, and the previous statement by the witness generally does not. In short, it is an exclusionary rule of evidence,6 although subject to a number of extensive statutory and common law exceptions.7 On one view, it tends to exclude weak evidence and to ensure that a defendant may question his accusers, thus protecting the oral character of the English trial and on the other hand, it is capable of being too restrictive so as to work injustice either way, which in turn, may impede the smooth running of the trial process8. Thus herein emerges the need to examine the defects in the application of the “hearsay rule” prior to the enaction of the Criminal Justice Act 2003 [hereinafter CJA] and the remedies and lapses that emerge on the examination of the same. II Main Defects In Cases Prior To CJA 2003 It is commonly known that the law prior to the CJA was inadequate and needed reform. The old rule against hearsay was often said to be convoluted, unprincipled and arbitrary in the application of a number of the many exceptions. It may also have lead to the exclusion of cogent evidence and the admissibility of weak evidence. It wasted court time in requiring it to receive oral evidence when written evidence would do and it confused witnesses and prevented them from giving their accounts in their own way when the rule was rigidly applied9. For example due to the courts’ insistence on oral evidence; people who had committed crimes against vulnerable victims tended to be granted a certain level of immunity. There were certain obstacles to adducing evidence under the old law where the witness was very young, very old, mentally vulnerable or seriously ill10. Then there was also the problem of victims who found giving oral evidence too upsetting.11. Moreover the application of the haphazardly developed exceptions, lead to many anomalous consequences, resulting in probative, reliable evidence being excluded from consideration by the tribunal with real potential for injustice to the public interest, including the interest of the accused. For example in cases of Sparks v R12, R v Blastland13, and McGlashan v R14 justice was sabotaged by the strict application of the hearsay rule15. Additionally it may be stated that many of the exceptions to the hearsay rule have been criticized time and again for their restrictive nature and the narrowness of their scope. For example the principle of “refreshing memory” associated with hearsay evidence is absurd to it very core. It allows the court to admit the witness’s “refreshed” evidence, but there is no exception to the hearsay rule to allow the original written statement to be admitted instead when the witness is not refreshed16. Besides the concept of “dying declaration” which is an exception to the “hearsay” rule is arbitrarily narrow, as it extends to cases of murder and manslaughter alone, wherein the victim is under a settled and hopeless expectation of death, and that such declaration can only be proof of the declarant’s cause of death. It is humbly submitted that there seems to be no logical justification for these restrictions. A further illogicality is that a dying declaration in which the victim named his assailant would be admissible but not a similar declaration in which a person on the verge of death confessed to his crime.17 The principle of “res gestae” also highlights the illogicality of the exceptions associated with the hearsay rule. It allows for the spontaneous and contemporaneous conduct, opinion or statement of a person who is not available to give evidence to be admitted as evidence where the conduct, opinion or statement was so closely and inextricably bound up with the history of the guilty act itself as to form a part of a single chain of relevant evidence and also allows for the evidence to be admitted as evidence of truth and as evidence of the persons state of mind or emotional state at the relevant moment. While there may be little opportunity for concoction in such circumstances, there may be other problems of reliability, as statements made in the heat of the moment may be particularly prone to distortion, perhaps unwittingly, as the perceptions of both the declarant and the testifying witness may be coloured by the emotion of the moment. Moreover, courts have also held that out-of-court statements evidencing the declarants state of mind do not come within the definition of hearsay. This confuses rather than clarifies the extent and rationale of the exception.18 Moreover it is illogical to adhere to the principle that “hearsay’ rule perpetrates that, if an inference is drawn from a document, it is hearsay, but if an inference is drawn from the non-existence of a document or entry, it is direct evidence19 Continuing thereof, it may furthermore be stated that the rule has also barred evidence of a confession, which exonerates the accused, in instances where it comes from a co-accused or a third party (who is not involved in the proceedings). This was illustrated in Turner20, where the appellant sought to adduce in evidence the fact that another party had actually admitted to having committed the offence with which he was charged. It would seem judges have been apprehensive of confessions by third parties, because of the fear that fabricated confessions would become a habitual characteristic of criminal trials, and lead to flawed acquittals. While this fear is well founded, it is arguable that where evidence infers that there is a possibility that another person may have committed the offence unaided; the jury cannot be sure of the accused’s guilt, and to convict in such a situation would be unsafe21. This should be the case regardless of whether any such confession is made by co-defendants, or persons who are never prosecuted, it is still relevant to the issue of whether the defendant actually committed the crime in the first place. It may also be highlighted at this point that the hearsay rule, amongst other things, has been widely criticized for the fact that it is complex and difficult to understand and the law pertaining to the same is not easily accessible.22 Besides the ‘hearsay’ rule must be sought in a host of separate legislative provisions and court rulings, which in turn makes the entire process illogical, inconsistent, and without any principled basis. 23 Furthermore, the law of hearsay prior to the CJA 2003 had made little or no accommodation in response to the social reality of increasing global mobility. Rather than relaxing the rule, the law has forced parties to conform, which in most cases means the expenditure of significant resources and time to locate and transport witnesses back to the trial jurisdiction24. The law of hearsay also failed adequately to take account of advances in the electronic recording of communications. Recorded telephone conversations and messages, video and digital video tape recording, email, website information, etc are all examples of types of communication distinguishable from oral hearsay on the basis that the reliability problem in the transmission of what in fact was said is absent.25 It is humbly submitted in this regard that whilst both types of hearsay suffer from the potential untrustworthiness of the maker (whose evidence cannot be tested in court), electronically recorded hearsay contains a reliable record of the communication, whereas oral hearsay suffers from the additional reliability problem of trying to determine precisely what the declarant said.26 Thus the scope of these failings may explain why reform was felt to be exceedingly crucial. It would also help clarify the extent to which these reforms have made significant progress as well as discovering its possible shortcomings. III CJA: Main Features and Reform A careful analysis of the CJA 2003 would reveal that Part 11 of the CJA 2003 was set out to modernise the hearsay rule, framing it in a "more positive and transparent term" so as to send "a clear message that, subject to the necessary safeguards, relevant evidence should be admitted where that is in the interests of justice27 This is reflected in Sections. 114 and 118 of the CJA 2003 which if read together would reveal the clear abolishment of the common law hearsay rules (save those which were expressly preserved) and instead reveal a new rule against hearsay which does not extend to implied assertions.28 However, with the exception of the above the new Act failed to remedy many of the lapses that earlier existed with regard to the hearsay rule. For example many of the exceptions still overlap, and more importantly hearsay broadly is still excluded. In addition the process of determining the admissibility of the “hearsay” evidence still depends in important respects on judicial discretion that is more often than not, not made suitable for application by lay magistrates29 and is often exercised inconsistently in the Crown Court.30 Not much improvement has been brought about and the same can be gathered from the fact that advocates seeking to adduce evidence of what a non-witness said will still need to identify any hearsay element within the statement, and then to find either a specific statutory or a preserved common law rule whereby it can be admitted.31 Witnesses giving evidence in chief will still encounter the effect of the rule against narrative, which insists that the major emphasis of the trial is upon what the witness says in court rather than on what he said when events were fresh in his mind.32 The CJA 2003 on the flip side again fails to specifically cater for a confession made by a third party, which still remains inadmissible unless one of the exceptions apply33 and has nothing new to offer in substitution for s.26 of the 1988 Act beyond the power to bring to an end a trial based on unreliable hearsay.34 However some forward steps in the direction of improvement of the law of hearsay that need be mentioned include the fact that the CJA puts the hearsay rule in a more positive way in the key definitional provision, which is now s.11435 Thus under the CJA 2003 hearsay will, for the first time in criminal cases, be the subject of a statutory definition. The second, potentially more significant change, involves bringing the safety valve to greater prominence within the structure and enhancing the scope for its operation. Instead of being tucked away it is now included in s.114 (1)(d) as one of the four principal grounds for admitting hearsay. This is intended to signify a greater degree of parity with the other exceptions.36 Though the structure of s.114 tends to suggest that it should come into play only when all else fails reason entails that a judge will surely not be asked to admit evidence "in the interests of justice" except where it is out with the other provisions. But this does not necessarily mean that the safety valve should be given a limited operation37. Thus though the Law Commission might have intended it to be used only exceptionally, but there is nothing in the Act that specifically required it to be so limited: it conferred on the courts a "flexible weapon to achieve justice in criminal law.38 In brief it may be stated that Section 114, comes in unfamiliarly permissive form, and provides that "a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if " one of the four exceptions applies”.39 The new rule also has the happy effect of removing from the hearsay rule non-verbal conduct that is not intended to be assertive. Section 115 ditches some inconvenient precedents, in this regard. Paradoxically one is unable to understand what may the argument for excluding from the hearsay regime all speech and conduct which is not intended to communicate a matter, but from which an inference can be drawn?40 Moving further, it may be highlighted that s.116 includes a number of refinements made in response to criticisms of the earlier model. First, the new provision applies to all first-hand hearsay, unlike s.23 of the 1988 Act which was confined to documentary evidence alone41 Secondly, it makes it crucial that the maker of the statement "is identified to the courts satisfaction" which in turn prevents the tendering of "whosay" evidence where the absent makers credentials cannot be tested42 Thirdly, the discretion and leave provisions of ss.25 and 26 of the1988 Act are shorn away, so that a statement, which fulfils the conditions of admissibility in s.116, is automatically admissible43. This is a significant departure from the earlier statute and contains no equivalent of ss 25 and 26 of CJA 1988, which effectively gives the courts’ discretion to refuse to admit such evidence, even if one of the grounds of unavailability had been established. By contrast, if one of the provisions set out in s 116(2)(a)-(d) is made out, the evidence is admitted44. However, while the conditions relating to statements by those who are dead, ill, abroad or untraceable remain identical to the earlier provision, the condition whereby the evidence of a fearful witness may be given in his absence has materially altered in a number of respects, the most important of which is that a requirement to obtain leave to adduce the statement is a condition of admissibility under s.116 (2)(e) This suggests that the "leave" provisions of s.26, replicated in the 2003 Act only in relation to fearful witnesses, are actually of importance with regard to other witnesses, particularly those suffering from illness or disability where a decision may have to be made between the use of hearsay and the protection of special measures.45 Although fairly conservative in the respect of “liberalizing” admissibility, the new Act has liberalised the circumstances in which such material can be admitted. Under s 116(1)(e), there is no limitation on who the earlier statement was made to. By contrast, under the equivalent provision in s 23(3)(a) of the Criminal Justice Act 1988, it had to be made to a "police officer or some other person charged with the duty of investigating offences or charging offenders". Under the new statute, the earlier statement can be made to anyone-a friend, neighbour or work colleague, for example. Thus, if a defendants solicitor takes a statement that provides an alibi for his client, from a witness who subsequently is threatened into not giving evidence (for example, by a co-defendant), the statement could be admitted at trial.46 Moreover under s 116(3) fear is to be "widely construed", and expressly includes fear of death or injury to another person, not just the maker of the statement, 47such as that produced by a threat to burn down a witnesss house if s/he testifies48. In passing, it should be noted that s 116(5) provides that if any of the reasons for unavailability set out in s 116(2) are brought about by the proponent of the evidence, or someone acting on his behalf, the out-of-court statement will not be admissible. If a witness makes a favourable statement to the police on behalf of an accused person, and that individual, concerned about how this witness will fare under cross-examination, then threatens him into refusing to give evidence, he will not be able to invoke s 116(1)(e) to have the earlier statement admitted. Obviously, it would be wrong if one of the parties to a trial could benefit from his own misconduct. A word of caution may be struck here. Section 116 is only a partial solution to the problems occasioned by witness fear. To operate, it requires that a witness has at least initially come forward (to someone) and made a statement before succumbing to anxiety. It will not deal with the now fairly prevalent reluctance of witnesses to serious crimes, especially in some urban areas, to identify them and "get involved".49 Even under the new statute, establishing fear is unlikely to be easy, as the courts are reluctant to reach such conclusions on a purely circumstantial basis. As with the 1988 statute, they will probably continue to view the use of the hearsay statement of a frightened witness, in lieu of their oral testimony, as a serious matter, which requires the tribunal to be satisfied that the fear is genuine50 The new provision will also occasion some novel problems. Although the requirement contained in s 116(1)(b), that the person who-allegedly-made the earlier statement be identified to the courts satisfaction, will help prevent fabrication, its extension to oral statements, and to those made to people other than police officers, might occasion difficulties.51 Under s 119 of CJA 2003, such statements, when proved, will become evidence in their own right, even if their maker does not accept their truth.52 With these reservations, it is likely that s 116 will make a small contribution towards ameliorating the problems occasioned by witnesses who are subsequently threatened into not testifying. IV Conclusion Thus what emerges from the above is that the CJA 2003 does not have all the answers where hearsay is concerned. This would not be such a worry if we kept our evidence rules under constant review, but experience suggests it may be a good long while before we see any further attempts at reform. This makes it more of a pity that the Auld reforms were not taken as seriously as they should have been, and makes it more likely that judges will over time resort to the safety valve as the flexible weapon of choice53 In lieu of the above the following recommendations54 may be considered (i) reform of the rule against hearsay, in particular with a view to making hearsay generally admissible subject to the principle of best evidence, rather than generally inadmissible subject to specified exceptions (ii) the English law of criminal evidence should, in general, move away from technical rules of inadmissibility to trusting judicial and lay fact-finders to give relevant evidence the weight it deserves (iii) reversing the rule so as to render all relevant hearsay admissible, leaving its weight for determination by the tribunal (iv) retain the exclusionary rule (v) redefine hearsay evidence so that implied assertions no longer fall within the definition of hearsay; (vi) abolishing the common law exceptions, except those relating to confessions, admissions, statements against interest, statements in furtherance of a conspiracy, and opinion evidence (vii) enacting a core scheme that confers a discretion on the trial judge to admit hearsay evidence on the basis of a defined test of necessity and threshold reliability; (viii) incorporating sufficient safeguards to protect the innocent from being convicted and to prevent the integrity of the trial process from being compromised and (ix) repealing certain statutory exceptions, substantially modifying others, and adding new exceptions, particularly for prior consistent statements and evidence admitted by consent. Thus, it is only when due consideration to the above recommendations [which are in no way exhaustive by nature] are given importance would the CJA 2003 adequately be able to address the problems and dilemmas which have time and again been raised in association with the law relating to hearsay. Read More