WHAT IS HEARSAY?
The courts distinguish between direct evidence “I saw it” or “I heard him say it” –
and hearsay “Fred saw it ” or “Fred told me he saw it”.
Direct evidence can be tested in cross examination. Extension questions can be asked to clarify exactly what the witness means.
With hearsay you can test exactly what words Fred used but you cannot clarify what Fred meant.
Fred may have been ironic
“You have delighted us long enough” (Jane Austin – Pride and Prejudice)
Fred may be lying or telling a white lie. Fred may not wish to offend or may intend to offend. Fred may be mistaken.
If Fred is from a different culture or society Fred may intend a different meaning to the natural meaning of the words used. Fred might be joking or even guessing.
If Fred gives direct evidence we can ask him.
If we are relying on what Annie says Fred said we can quibble about what words Fred used but we have no idea what Fred actually meant. That is why the courts hate hearsay.
Problems with Hearsay
Chain hearsay is even worse. Mike tells us what Annie says Fred said he saw. There is a story from the First World War where a message was passed from mouth to mouth
“Send reinforcements. We are going to advance!”
which ended up as
“Send three and fourpence – we are going to a dance!”
In the immediate aftermath of an event like a murder everyone’s emotions are highly charged. People say things in the heat of the moment, or on inadequate information. Such statements must be tested by cross examination in court. Sometimes that cross examination can exonerate the accused.
If those statements are repeated to the court without an opportunity to cross examine the person who actually said them, there may be a miscarriage of justice.
A simple sentence from Shirley,
“Henry likes small boys”
can have a number of meanings.
Does it mean that Henry just likes small boys or is there a sexual meaning? Which Henry are we talking about? With cross examination one can ask Shirley to clarify exactly what she means.
If the witness George reports “Shirley said Henry likes small boys”, you can cross examine George as to the exact words Shirley used, and whether there were any winks or smiles or other non verbal accompaniment BUT was Shirley talking about Henry Smith or Henry Brown? What did Shirley mean by what she said?
Cross examining George will give you George’s impression of which Henry Shirley meant, and George’s impression of what Shirley meant.
Apart from whether Shirley is right or wrong, we now have the problem of whether George correctly heard Shirley and correctly understood Shirley.
The courts would rather hear directly from Shirley than Shirley indirectly via George.
So why is hearsay such a big issue?
The Historical Basis
When the Common Law was being established after the Norman invasion of 1066, the vast majority of people were illiterate and were poor. They had no lawyers.
The courts would not allow a Defendant to give evidence. The belief was that if a person told lies while on oath they would suffer in Hell for all time. Some people might tell lies now to get out of trouble in this life, not realising or not caring about what happened in the next life. For the protection of the Defendant’s soul the Defendant was not allowed to give evidence.
Nor was his spouse, because some spouses might tell lies to protect their loved ones.
The punishments in this world were as nothing compared to the torments of Hell, so to save them the danger of going to Hell by telling lies on oath, they were not allowed to give evidence.
The prohibition on hearsay was one of the measures adopted to protect Defendants.
In modern times, much of that reasoning has gone. However, the desire to give a Defendant a fair trial is still a feature of the criminal courts.
Now it is hearsay, now it isn’t
Supposing John hears Fred say “the bandstand in the park is painted blue now”.
If the question before the court is whether at the relevant time the bandstand was coloured blue, what John says Fred said is only hearsay evidence of what Fred said, and not really helpful for establishing the colour of the bandstand.
If the question is whether Fred used those words, then John’s evidence is direct evidence. This could be helpful if Fred is now saying that he has not been near the park or bandstand since his release from prison.
“It was a coloured boy, mummy”
One case that causes difficulty is an appeal from Bermuda, R. v. Sparks [1964] AC 964 where Sparks was convicted of sexually molesting a three year old child. The child turned four shortly after the offence. The child was too young to give evidence. At some point after the event but before the trial the child said to her mother,
“It was a coloured boy, mummy”.
Sparks was white. Not surprisingly Sparks wished to use this statement from the child or the child’s mother to prove his innocence.
Sparks was not allowed to call this evidence. The mother had no personal knowledge who had molested the child. The statement from the child could not have been given as direct evidence because the child was too young. If the information could not be admitted by direct evidence, It could not be admitted indirectly by hearsay.
The decision of the trial judge to exclude this evidence was held to be correct. Sparks was successful on other grounds, but if Sparks had not had those other grounds his conviction would have stood.
If it looks like a duck…
You will be aware of the saying,
“if it looks like a duck and it walks like a duck and it quacks like a duck -it is a duck!”
The police raided the flat of a Mr Kearley ( R v. Kearley [1992] 2 All ER 345), and found a quantity of drugs. The quantity was not enough to establish that Mr Kearley was a drug dealer.
The police waited in Mr Kearley’s flat. Over the day they answered 10 telephone calls from people who wished to buy drugs, and 7 other people came to the flat to buy drugs.
The police wanted to use this evidence against Kearley. They were not proposing to use direct evidence from the customers, but if 17 people on one day sought to buy drugs from Mr Kearley, the police argued this was evidence that Mr Kearley was a drug dealer.
The judge allowed the evidence to be used
Lord Ackner in the House of Lords said
“An oral request for drugs to be supplied by the defendant, not spoken in his presence or in his hearing, could only be evidence of the state of mind of the person or persons making the request, and since his or their state of mind was not a relevant issue at the trial, evidence of such a request or requests, however given, would be irrelevant and inadmissible. The jury would not be entitled to infer from the fact that the request(s) was made that the appellant was a supplier of drugs”
This is in one sense illogical – the man is at first sight clearly a drug dealer. Now a cautionary tale.
In May 2007 there was an embarrassing incident in South Wales where the house of a suspected paedophile was attacked. “Paedo” was painted on it.
The house owner was a paediatrician, not a paedophile! The fact that a lot of people in the local pub thought she was a paedophile did not make her one. If they had thought she was a drug dealer the fact that they thought she was a drug dealer would not make her one.
Admissible hearsay
There are times when hearsay is admissible. Under the “best evidence” rule we would look for the originator of the statement to come to court to make it. If perhaps they were known to be abroad or despite considerable searching the witness was missing, hearsay might be accepted.
A more common reason is that they are dead. In the case of Chandrasekera (Chandrasakera v. R. [1937] AC 220) a woman in Ceylon (now Sri Lanka) was found with her throat cut. She was asked “was it Alisandri?” and nodded. She died minutes after. Evidence of her actions was admitted.
Another case from Ceylon was Subramaniam v. Public Prosecutor [1956] 1 WLR, where Mr Subramaniam was found in unlawful possession of ammunition. His defence was duress. The terrorists had threatened to kill him if he did not cooperate.
The trial judge would not permit him to give evidence of what the terrorists threatened, because Subramaniam was not able to say what was really in the terrorists minds.
On appeal the court held that for the jury to understand the threat, and whether the defendant believed the threat, the words had to be allowed. The question was not whether the terrorists meant their threats but whether Mr Subramaniam believed the threats.
The shotgun
As a teacher of Law of Evidence, I am amazed at the number of cases where men accidently fire their shotguns at their loved ones. One of these was Mr Ratten ([1973] 3 All E.R. 801.
At about 1.15 the Post Office telephonist was telephoned from the Ratten house. The telephonist plugged into the number, pressed the “speak” key and said “number please”. A female voice was hysterical and sobbed “Get me the police, please.”
Mr Ratten said that the shooting, which happened a few minutes later, was a complete accident. There had been no argument or difficulty between the couple.
Lord Wilberforce said that the important question before the court was whether Ratten had deliberately killed his wife or whether the shooting was a complete accident.
The victim’s state of mind immediately prior to the shooting was relevant to the question. If she was calm and placid before the shooting this supported the “accident” but if she were distressed and upset it suggested she feared violence. The telephonist witness could give evidence of the woman’s state of mind, based also on non-verbal indications such as sobbing and sounding panicky. In this context, repeating the actual words used is helpful.
The machine speaks
Lots of machines provide information, from the bathroom scales to the computer. The machine has no mind of its own, and so the machine cannot be cross examined. Evidence has to be given by a human being, who will tell the court what the machine “said”. This is hearsay.
A radar operative who sees two blobs moving together is not a direct witness of the collision. It would be stupid to disregard his evidence.
If the radar screens are recorded, the recordings can be played to the court and can be explained to the court by the operative and /or an expert witness. If not, we have what the radar operator “saw”. What he “saw” is hearsay evidence. What he inferred from what he saw is likely to be hearsay. If he is an expert it can be opinion evidence based on what he saw.
Before machine evidence can be considered there has to be evidence about the workings of the machine before and after the incident. Examples of this are where a defence expert using a radar speed machine recorded a tree moving very fast and a defendant who showed that the speed camera was not installed according to the maker’s specification.
Expert Witnesses
Expert witnesses often work from what was recorded at the time of the incident and soon after, and so are not witnesses of fact. They repeat to the court what was recorded by others, which of course is hearsay. Their judgements are as good as the information they work on and the knowledge they apply to what has been recorded.
Conclusion
Hearsay evidence is a very difficult concept. In trying to decide whether something is hearsay or not, it is best to consider what cross- examination or extension questioning are possible
If something is hearsay, different jurisdictions have different rules about whether this hearsay can be admitted or must be excluded. Often the trial judge is given some discretion
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