Critical Analysis of Hearsay Evidence in Criminal Trials: Evidence Law

This essay critically analyzes the position of hearsay evidence in criminal trials, addressing the statement that its current position risks causing injustice. It defines hearsay evidence, explaining its complexities and outlining the rules for admissibility, referencing cases like R v Kearley and Subramaniam v Public Prosecutor. The paper explores the Criminal Justice Act 1988 and 2003, detailing statutory exceptions to the hearsay rule and exceptions under common law, while also discussing the arguments against the admissibility of hearsay evidence, referencing the case of Teper v R. The essay examines the potential for errors and falsehoods, emphasizing the importance of cross-examination and the challenges of assessing the authenticity of evidence. It references academic opinions, and aims to provide a comprehensive overview of the topic.

Running head: EVIDENCE LAW
Evidence Law
Name of the Student
Name of the University
Author Note

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The law related to Hearsay evidence under the Law of Evidence is complex. It refers
to the oral or written evidence or statement that is given out by a person not testifying on
oath, but it is relied by a court of law for the purpose of a proceeding. For example, in a
murder trial, a witness states that he heard that the accused was not in the crime scene but at
some place else, would be a hearsay evidence if it is accepted by the court as it is not proven
by factual or circumstantial evidence, but by the word of mouth of a person who was not
present at the crime scene personally and is only making the statement on presumption. The
rules pertaining to the admissibility of hearsay evidence in case of criminal and civil cases are
different. A hearsay evidence can be identified by the following conditions: a) whether the
statement was made outside the proceedings of the court by a person who is not a witness of
the trial; and b) whether the intention of the person making the statement was to make the
court or another person believe in it and act accordingly as if it was true. If both the condition
are proved to be right, then these are hearsay evidence and it would be upon the discretion of
the court whether to allow them or not. This paper critically analyse the position of hearsay
evidence in context to a criminal proceeding; whether it is admissible in the court of law or it
is rejected for being presumptuous. The researcher strives to put forward that although there
are various judgements that rejects the validity of hearsay evidence; however, it bears many
exceptions that allow the admission of this particular form of evidence.
As argued in the case of R v Kearley, hearsay evidence is an assertion made by
anyone other than a person who gives oral statement in a proceeding, which is inadmissible
as an evidence1. The rule to make a hearsay evidence admissible depends on the
determination of the purpose of which the statement or the evidence was laid down. A
hearsay evidence would be admissible when its object is to establish the truth in context to
the statement made. However, as argued in the case of Subramaniam v Public Prosecutor, the
object of the hearsay evidence is to establish the truth that such a statement was made and not
1 R v Kearley [1992] 2 AC 228

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to prove the fact of the statement2. The case of R v Kearley argues that hearsay evidence
speaks for both assertions made by people who gives oral evidence under oath in a court of
law and also those who do not3. The rule as stated in the above-mentioned case also covers
‘implied assertion’. The rule of hearsay evidence lays down the following conditions where
hearsay evidence is admissible unless they fall under its exception categories: a) the witness
must lay down an oral statement which cannot be substituted by a written statement; b) The
statement of the witness must be from his first-hand knowledge and not a repetition of a
previously shared information; c) The statement shared are otherwise inadmissible evidence;
and d) When a witness gives oral statement, his previous statement is not counted in that
case.
In the case of Myers v. DPP, Lord Reid suggested a statutory review of the law of
hearsay evidence4. Additionally, the Criminal Law Revision Committee in 1972
recommended major changes in its Evidence Report5. In 1986 the issue of hearsay evidence
was extended and examined by the Roskill Committee when it was recommended that
documents for a criminal proceeding Elysium fraud should speak for itself and should be
admissible irrespective of further proof. With the passing of the Criminal Justice Act, the
matter of hearsay evidence was partially discussed by the new legislation6. The Criminal
Justice Act 1988 limits itself to hearsay statements that are contained in a document, however
the words statement and document has been widely defined in the Act which broadens the
horizon of the application of Hearsay evidence. Section 23 of the Criminal Justice Act 1988
lays down a statutory exception which says that hearsay evidence must be the first hand
evidence only7. The Act states that when a person give the statement on a document, it would
2 Subramaniam v Public Prosecutor [1956] 1 WLR 965
3 R v Kearley [1992] 2 AC 228
4 Myers v. DPP [1965] AC 100
5 Wells, Celia. "Criminal Law Revision Committee, 14th Report: Offences against the Person: Homicide." Mod.
L. Rev. 43 (1980): 681.
6 Criminal Justice Act 1988
7 Criminal Justice Act 1988, s 23

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be prima facie admissible in case of a criminal proceeding and it would be taken as an
evidence of a fact and the oral evidence given by such person would be directly admissible if
it falls within one of the factor in the following category. The following category lays down
the four causes for which the person giving out the oral statement is not available to give the
evidence personally in the court of law for a) the witness is either dead after giving the
statement; b) the person is unfit, physically or mentally to provide evidence as a witness; c)
the person is not present in the United Kingdom and it is not possible to ensure his
attendance; and d) the person who made the statement have not been found so that he could
provide the statement as an evidence in the court. In case the statement was given out to a
police officer then it could be assume that the person is refraining from giving out evidence
due to fear or some other privacy issues8. While, Section 24 of the criminal justice Act 1988
safeguards the documents that were created in the course of a business or occupation.
Statement taken under this section may include9. Since the introduction of the Criminal
Procedure and Investigations Act, it has brought a long significant revisions and changes to
the admissibility of hearsay evidence. It was stated that statements made by witnesses will be
admissible in a Crown Court where the opposite party would be the right to object10.
However, the court may overrule the objection of the opposition if it feels that the admission
of the statement is needed for the interest of Justice.
When a person says that he is going to kill someone, and a person hearing it makes
the statement to hold the person guilty of killing such other person would be considered as a
hearsay evidence, as the purpose of allowing a statement as an evidence in the court of law
should not be to establish that what was said is the ultimate truth. The aim of allowing the
statement to be an evidence should be to prove that the person actually uttered those words
but it cannot be proved that he actually did it. As put forwarded by the law of evidence,
8 Ibid.
9 Criminal Justice Act 1988 s 24
10 Criminal Procedure and Investigations Act 1996

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hearsay evidence is not admissible in a court of law, especially in case of a criminal case.
However, there are certain exceptional circumstances where the court accepts and admits
hearsay evidence in a criminal trial. They are: 1) where the parties to the criminal trial, that
is the prosecution, the defence and the judge mutually agrees to accept all the hearsay
evidences that are produced before the court for the particular proceeding in question; 2)
when the admission or acceptance of the hearsay evidence is required for the best interest of
restoring justice; 3) in case there is an exception under common law; and 4) where the
statutory provision of the Criminal Justice Act (CJA) 2003 makes it a mandate to admit or
accept hearsay evidence for the purpose of the criminal proceeding in question.
As put forwarded by the Criminal Justice Act 2003 hearsay evidence is admissible
under the following conditions:
1. Section 116 of the CJA 2003, when a person is not available to appear before the court of
law to give statement, his admission even if hearsay is allowed by the court in a criminal
proceeding11.
2. Section 117 of the Act states that the statement that is made in a professional document or
in a business document is to be allowed even if it is hearsay12.
3. Section 114 (1) (d) of the CJA 2003 gives a discretionary power to the judges to admit an
inadmissible hearsay evidence for the purpose of meeting the interest of justice or otherwise
it would defeat the purpose of justice and prejudice the order of the court13.
Other than the Criminal Justice Act, there are certain exceptions under the Common
Law that allows hearsay evidences. They are: 1) the common law permits hearsay evidence
in case where a public record contains public information and it is available to the general
people for drawing references14. 2) The character evidence of a person to establish whether he
11 Criminal Justice Act 2003 s 116
12 Criminal Justice Act 2003, s 117
13 Criminal Justice Act 2003. S 114(1)(d)
14 Civil Evidence Act 1995

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is a good person or bad is sometimes admitted in the court of law and is accepted as a hearsay
evidence15. 3) When a person makes a comment about his emotional state or about an event
that has occurred recently in which he was involved, such a comment would be admissible in
the court even if it is a hearsay evidence. 4) When a person confesses something in context to
a relevant charge against him. 5) In context to ‘Common enterprise’, hearsay evidence is
admissible when a person gives statement against another, when both of them has committed
a crime together, it would be allowed as a hearsay evidence by the court. 6) Lastly, under
common law, an expert’s opinion based on another expert’s suggestion is admissible in the
court of law16.
There are contemplations that here say evidence is not the best evidence all it can be
said that it is not the best available evidence for in some cases the person making the
statement cannot be produced before the court for he might be dead or unable to state the
same statement again before the court. As argued in the case of Teper v R, it was held that
here say evidence is not the best evidence as it is not delivered under an oath17. Therefore the
accuracy and the truthfulness of the person making such statement cannot be checked
unconfirmed by way of cross examination18. It is quite often that yours evidence was the risk
of producing false or erroneous outcomes where it may appear that the evidence has been
repeated and reuse by different people for different matters which is completely bird in case
of the admissibility of hearsay evidence. Moreover hearsay evidence carries the risk for when
a person reports wrong information provided by another person or may have misheard or
misunderstood the other person. It is certain that when the source of the evidence is remote
there are greater chances that it would indulge in errors or falsehood.
15 Ibid
16 Police and Criminal Evidence Act 1984, s 78(1)
17 Teper v R [1952] AC 480
18 Trankell, Arne. "Reliability of evidence: Methods for analyzing and assessing witness statements." (1972).

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It is argued that in the absence of the original source of the information, it would be
difficult to cross examine its authenticity. Therefore there is a high risk of being exposed to
erroneous evidence. Therefore, the risk of having fabricated information irrespective of the
source remains even when the source is a trusted one. Thus, there are arguments put
forwarded to exclude the admissibility of multiple hearsay evidence along with the evidences
given by unidentified witnesses19. However, the risk of fabricated evidences has been reduced
by laying down rules regarding the submission of supporting evidences undermining the
accuracy of the hearsay evidence. In addition, judicial warnings about the risk of producing
incorrect, fraudulent or fabricated evidence are intimated to the witness giving out hearsay
evidence. Various studies speak about the observation skills of the experts who are keen
observers and could tell when a speaker is lying. Experts are of the opinion that the
demeanour of a witness can act as an indicator of the statement that she is making, which can
be used to weigh the value of the provided statement as well. Contrary to this, the jury have
confirmed that they do not have the advantage of watching the witnesses give hearsay
evidence, therefore it is difficult for them to judge the demeanour of the witnesses in order to
predict the accuracy of the information. On a similar note, several respondents on
consultation have believed that the value of the demeanour of the witnesses underestimated
for they speak a lot about the reliability of the information they share.
In addition to, it was held in the case of Teper v R, that the hearsay evidence has no
guarantee for it is not delivered on oath20. However it is argued in R v Hayes that in today's
world it is unrealistic to believe that the adult population would refrain from lying or
fabricating information for the fear of God21. In connection to this several organisations in the
United Kingdom have demanded for the abolition of the system of path taking before
delivering information in a court of law. It has been argued by May (1986) that a responsible
19 R v Cole [1990] 1 WLR 866
20 Teper v R [1952] AC 480
21 R v Hayes [1977] 1 WLR 234

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person would take adequate care regarding the accuracy and reliability of what she is
delivering in a court, weather on oath or not22. Therefore it can be held that there is no
evidence or justification regarding the value of an oath or affirmation for proving de
accuracy, reliability of truthfulness of a testimony23. Some of the thinkers have laid down that
an oath carries no differential value in today’s society while some are of the view that the
presence of an oath brings the presence of an oath brings solemnity to the occasion of giving
a statement in a criminal proceeding for it involves the fear of prosecution due to perjury.
Lord Irvine explained to the House of Lords on a debate upon the Criminal Justice
Bill in 1987 that there can be no advocate who has not come across the demolition of a strong
written statement under the pressure of a skilful cross examination during a trial. However it
needs to be clarified that hearsay evidence is entirely based on the oral statement provided by
a witness, which lacks the benefit of being cross checked by way of a cross examination or
counter examination. Professor Sir John Smith held that the lack of cross examination is
probably the best justification for the admissibility of hearsay evidence. Lord Devlin
mentioned in his fifth Hamlyn lecture in the year 1956 that the primary objective of the rule
of evidence is to protector jury from being exposed to inaccurate or unreadable information
that may result in putting the jury in a dilemma pertaining to the interim order or judgment of
the criminal proceeding.
Therefore to conclude the critical analysis of this paper it can be clearly stated that
hearsay evidence is considered to be inferior in comparison to a non hearsay evidence as the
former cannot be examined by a cross examination while the latter can be. Only in the case of
first hand yours evidence where the person who has experienced the situation is delivering
22 May, Richard, et al. Criminal evidence. Sweet & Maxwell, 1986.
23 Wigmore, John Henry. A treatise on the system of evidence in trials at common law: Including the statutes
and judicial decisions of all jurisdictions of the United States. Vol. 2. Little, Brown,, 1904.

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the information himself can be relied upon. Other than first hand hearsay evidence, the
second or third hand information bears the risk of fabrication or incorrectness more, for its
reliability gets diminished over the period of time and over the number of times the particular
information has been shared. Thus, it is always recommended that whenever hearsay
evidence has been allowed in a criminal proceeding there is a potential risk of the information
being incorrect or fabricated. It is needless to say that such approach to a criminal proceeding
defeats the purpose of the existence of court whose primary responsibility is to deliver
justice. It is natural for the jury to deliver an incorrect judgment when they are served
incorrect evidences, on the basis of which they formulate their views on a particular case.

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References
Books / Journal articles
May, Richard, et al. Criminal evidence. Sweet & Maxwell, 1986.
Wells, Celia. "Criminal Law Revision Committee, 14th Report: Offences against the Person:
Homicide." Mod. L. Rev. 43 (1980): 681.
Wigmore, John Henry. A treatise on the system of evidence in trials at common law:
Including the statutes and judicial decisions of all jurisdictions of the United States. Vol. 2.
Little, Brown,, 1904.
Case laws
Myers v. DPP [1965] AC 100
R v Cole [1990] 1 WLR 866
R v Kearley [1992] 2 AC 228
R v Hayes [1977] 1 WLR 234
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Teper v R [1952] AC 480
Legislations
Civil Evidence Act 1995
Criminal Justice Act 1988
Criminal Justice Act 2003
Criminal Procedure and Investigations Act 1996
Police and Criminal Evidence Act 1984