Evidence Admissibility of Hearsay Evidence Section - Essay Example

Evidence Admissibility of Hearsay Evidence Section 116 Criminal Justice Act 2003 Section 116 of the Criminal Justice Act of 2003 One aspect of witness testimony bears special mention. Hearsay is anything not based upon the personal knowledge of a witness. A witness may say, for example, “John told me that Fred did it!” Such a witness becomes a hearsay declarant and, following a likely objection by the council, the trial judge will have to decide whether the witness’s statement will be allowed to stand as evidence. In other words those cases where witness is unavailable the judge instructs the jury to disregard such comments from the witness, thereby enforcing the hearsay rule. The hearsay rule does not permit the use of “secondhand” evidence. 1 Detecting ambiguity is the difficulty often experienced in the hearsay evidence on hearing an account of events. The civil case of Huff v. White Motor Corp 2. provides an excellent example of an ambiguous hearsay statement. At issue was the admissibility in evidence of a statement made by a deceased person that ‘as he was approaching the curve or starting into it his pant leg was on fire and he was trying to put his pant leg out and lost control and hit the bridge abutment and then the truck was on fire’. 3 First, there is ambiguity in relation to the sizes of the two fires referred to in the statement: the statement simply speaks of the pant leg and truck being ‘on fire’. This ambiguity is caused by the polarity of language: we are constrained to a choice between saying that something is ‘on fire’ or ‘not on fire’. Secondly, there is chronological ambiguity in the sense that it is unclear when exactly the first fire referred to actually start. The objections to the admission of hearsay are two, the person making the statement of the relevant fact is not subject to cross-examination and he is not in fear of punishment for stating what is not true nor, some might add, of hell fire for false swearing, but that is a consideration which has no weight in the twentieth century when people are no longer over-awed by the mummery of the oath 4. Juries And Hearsay Evidence It is often suggested that the vigour with which the rule against hearsay is still applied in criminal cases is attributable to the phenomenon of trial by jury in criminal trials on indictment. Juries, it is said, cannot be expected to assess properly the reliability of hearsay evidence on a case-by-case basis, and thus it is preferable that a blanket ban on such evidence be maintained 5. Concern about the ability of juries to handle hearsay evidence was particularly prevalent in the 19th century, 6 but its influence on current hearsay doctrine Act 2003 is still evident. ‘It is probably no accident’. In Continental jurisdictions, where very little reliance is placed on jury trial, there is no rule against hearsay of the sophisticated variety that exists in England. There is no reason why a flexible approach should not also be applied to prior consistent statements. It is true that, in contrast with the position in relation to prior inconsistent statements, there appears to be no necessity for the substantive admissibility in evidence of statements of witnesses, which are, by definition, consistent with their present testimony. However, there is at least one situation in which the admission of evidence of a prior consistent statement for its truth might prove useful. Where there has been a challenge to the truth of a witness’s testimony, he or she should be permitted to adduce evidence of a prior consistent statement for its truth. It should not be necessary for an allegation of recent fabrication to be made 7. An attempt to impeach her or his testimony in cross-examination should suffice. The approach discussed in relation to prior inconsistent statements should be adopted in determining whether the evidence is sufficiently reliable to be left to the jury. Indeed, the main point to argue for the adoption of a much broader principle, which would not even require a challenge to the truth of the witness’s testimony, is a prerequisite to substantive admissibility. Provided that a prior consistent statement is considered sufficiently reliable to be left to the jury, it should be admissible in evidence for its truth 8. In sum, it has been seen that where prior consistent statements and prior inconsistent statements are admissible in evidence in English law at present, they can be admitted, by virtue of the hearsay rule, as relevant only to credit. This is an artificial limitation. ‘Limiting instructions’ given by judges to juries in relation to the treatment of evidence as going solely to credit have been accurately described as constituting a ‘pious fraud’. More fundamentally, the validity of the entire distinction between relevance to facts in issue and relevance to credit may, in any event, be questioned 9. Owing to the rule against hearsay, this evidence can be treated as relevant only to credit. What of the situation, then, where the witness who made the out-of-court identification is unable to make in-court identification? Is evidence of the out-of-court identification rendered inadmissible by the rule against hearsay? 10 This issue has been viewed from different aspects in England. In Alexander v. R., a witness, Connell, had earlier identified the two accused from photographs shown to him. At the trial, however, he claimed to be unable to remember what photographs he had identified, and was also unable to make an in-court identification of both accused. The issue arose whether it was permissible for the police officer that had interviewed Connell to testify that he had picked out photographs of the two accused on that occasion. The judge Murphy J. Suggests in this case that ‘If the witness does not give evidence that on the earlier occasion he identified (i.e. correctly identified) the person in the photograph as the person at the event in question (even though he cannot remember the details) then the evidence from others of his previous act of identification is hearsay and inadmissible.’ 11 The doctrinal attractiveness of the reasoning of Murphy J. cannot be denied. If identification evidence is adduced merely to prove the fact of identification, rather than the fact that the person identified was the perpetrator of the offence charged, then the letter of the hearsay rule is not infringed. In an Alexander-type situation, the police officer would testify to the fact of the identification only, while the identifying witness would testify to the truth of the identification. If we take a broader look at the problem, however, we may quite legitimately conclude that, in such a situation, cross-examination of neither the identifying witness nor the police officer is likely to prove particularly helpful in exposing any unreliability in the identification evidence (taken as a whole) adduced by the prosecution. The identifying witness, by his or her own admission, can no longer remember whom he or she identified earlier (and cannot remember enough to make an in-court identification). He or she can therefore be cross-examined only as to his or her veracity, as to his or her opportunity to observe both at the time of the events in question and at the time of the identification, and as to the lapse of time and memory between the events and the identification. 12 The police officer never witnessed the events, which are the subject of the offence charged. The holding of admissibility may be dictated more by practical considerations such as the perceived desirability of not withholding highly relevant evidence from the jury 13, particularly given that the ‘failure to remember’ at trial might well be the result of intimidation between the time of the out-of-court identification and the time of trial 14. In England, where the issue has not benefited from extensive analysis, the decision of the Court of Appeal in R. v. Osbourne and Virtue 15 remains the leading authority. Osbourne and Virtue were picked out at an identification parade by Mrs Brookes and Mrs Head respectively. At the trial seven-and-a half months later, Mrs Brookes said that she could not remember picking anyone out at a parade. Mrs Head first said that she thought that one of the accused was a man she had picked out at a parade, but later said that she did not think that the man she had picked out was in court. The police officer in charge of the parade was then called to give evidence of the out-of-court identifications. On appeal, the Court of Appeal held, without adverting to the rule against hearsay, that this evidence had been correctly admitted. Lawton L.J. remarked: “ The whole object of identification parades is for the protection of the suspect, and what happens at those parades is highly relevant to the establishment of the truth. It would be wrong, in the judgment of this court, to set up artificial rules of evidence, which hinder the administration of justice”16. Clearly, greater transparency in the English law of hearsay could be achieved if the current rigid régime were to be discarded and replaced with a more flexible approach requiring courts to justify admissibility on a case-by case basis. It should be necessary for the court to demonstrate that the four ‘hearsay dangers’ are sufficiently low as to render the evidence reliable enough for consideration by the jury. Combinations of Witnesses Edmund Davies L.J., 17delivering the judgment of the Court of Appeal, held that Cope’s testimony as to the registration number of the car should have been excluded as hearsay: ‘for Mr Cope to be allowed to say that what he was told by Mr Gomery was that the car involved was HKB138D is a contravention of the hearsay rule when that remark is adduced as evidence that the car involved in the robbery was in fact HKB138D. 18 We would conclude that Cope’s testimony is not hearsay because it is not being adduced to prove that the car involved in the robbery bore that registration number: it is being adduced solely to prove the fact that the registration number in question was dictated to him by Gomery. Gomery’s testimony, on the other hand, is being adduced to prove that the number which he dictated to Cope was that of the car involved in the robbery. It is to be noted that, in R. v. Penno,19 in factual circumstances analogous to those of McLean 20the British Columbia Court of Appeal held that the hearsay rule was not infringed. Since English law apparently regards it as convenient to treat evidence of the identification of persons as sui generis and as constituting, de facto, an exception to the rule against hearsay, it is disappointing that this has not been stated explicitly, with the reasons for recognizing such an exception clearly articulated. It is only when one examines decisions like McLean that the altogether different treatment accorded to evidence of identification of persons comes fully to light. The issue of the relationship between the hearsay rule and confessions made through interpreters has attracted some attention. The effect of the decision of the Central Criminal Court in R. v. Attard 21 is that a police officer cannot give evidence of an interpreter’s translation of the accused’s confession of guilt, if the interpreter is not called as a witness. Third Party Confessions Confessions to crime by accused persons constitute one of the major common law exceptions to the rule against hearsay. Such confessions can be admitted in evidence as an exception to the hearsay rule, provided that they do not fall foul of section 76 of the Police and Criminal Evidence Act 1984 and are not excluded in the discretion of the trial judge under section 78 of the same Act. To confessions by persons other than accused persons, however, the hearsay rule applies with full vigour. The effect of this is that the defence in a criminal trial is unable to adduce in evidence a confession made by a third party. In R. v. Turner (Bryan James), the Court of Appeal was unable to find: “Any authority for the proposition advanced in this case that hearsay evidence is admissible in a criminal case to show that a third party who has not been called as a witness in the case has admitted committing the offence charged. The idea, which may be gaining prevalence in some quarters, that in a criminal trial the defence is entitled to adduce hearsay evidence to establish facts, which if proved would be relevant and would assist the defence, is wholly erroneous”.22 In R. v. Blastland, 23 one of the two points of law certified by the Court of Appeal was 'whether the confession by a person other than the defendant to the offence with which the defendant is charged is admissible in evidence where that person is not called as a witness'. The Appeal Committee of the House of Lords refused leave to appeal on this point, and the reason for this was explained briefly by the House of Lords when handing down its decision on the second point. It was said that 'to admit in criminal trials statements confessing to the crime for which the defendant is being tried made by third parties not called as witnesses would be to create a very significant and, many might think, a dangerous new exception'. 24 That such an exception to the hearsay rule would be a significant one cannot be disputed. The admission of cogent and reliable defence hearsay could contribute to the protection of an innocent defendant from wrongful conviction. That it would be a dangerous exception, however, is much less obvious. The soundness of such an exception would depend on what conditions require to be satisfied for the application of the exception. If the defence is permitted to adduce evidence of just any third-party confession, then an exception which allows the admission of evidence of third-party confessions on behalf of the defence would clearly be open to abuse. It would be possible, for example, for someone who has been granted immunity from prosecution, or is seeking to protect the accused, or is about to die, to make a false confession in order to exculpate the accused. 25 The general danger of false confessions is being increasingly well documented in the literature. 26If, however, there are prerequisites to the admissibility in evidence of a third-party confession, which seek in some way to ensure its reliability, then an exception to the hearsay rule, which renders such evidence admissible in appropriate circumstances, can hardly be considered a dangerous one. 27. In view of the existence of conditions which require to be satisfied before a confession by an accused person can be adduced in evidence by the prosecution, to require conditions in the case of third-party confessions would be no novel idea. The English courts have apparently considered the hearsay rule to be inapplicable to evidence adduced not for its truth, but for its falsity. This would seem to be in keeping with the doctrinal definition of the hearsay rule as one, which prohibits the admission in evidence of out-of-court statements to prove the truth of facts asserted therein. In A. -G. v. Good,28 the wife of a debtor made false statements to the effect that her husband was not at home when entrance was demanded. It was held that evidence of this statement was admissible to prove the husband's intent to defraud his creditors. The court considered that, had an unreasonable time elapsed between the demand for entrance and the opening of the door, this would have been admissible in evidence as a fact relevant to the issue. Thus, the wife's false statement was relevant in the same way. In Mawaz Khan v. R., 29 the two appellants appealed against their convictions for murder on the basis that evidence of out-of-court statements made by each of them in the absence of the other was hearsay and had been wrongly admitted. Each of the appellants had told the police separately that their injuries had been sustained in a fight between them, and that these injuries had no connection with the killing of the deceased. Many of the details of the appellants' statements were contradicted by the evidence of witnesses. Neither appellant gave evidence at trial. Lord Hudson, delivering the advice of the Privy Council, held that there was no infringement of the hearsay rule as the statements were adduced in evidence: “ not for the purpose of establishing the truth of the assertions contained therein, but for the purpose of asking the jury to hold the assertions false and to draw inferences from their falsity. The statements were relevant as tending to show that the makers were acting in concert and that such action indicated a common guilt”. 30 Andrew writes, “Even though this approach is in keeping with the technical definition of the hearsay rule, the assumption that the making of the untrue statements was motivated by a consciousness of guilt may rest on shaky foundations”.31 Bibliography Andrew L.- T Choo, 1996. “Hearsay and Confrontation in Criminal Trials”. Great Britain Marsh Ian, 2004. “Criminal Justice: An introduction to philosophies, theories and practice” . London and New York Schmalleger Frank, 1999. “Criminal Justice Today”. William Chris, 2004. “Evidence, Procedure and the Upside of Cognitive Error” in “Stanford Law Review”. Vol: 57: 2. Page Number: 291+. COPYRIGHT 2004 Stanford Law School; Read More