Essay: Is it still necessary for the rule against hearsay to operate in our legal system? (Irish law)

In this essay I am going to evaluate whether or not it is still necessary for the rule against hearsay to operate in our legal system. Before I discuss its current relevance, I am going to give a brief overview of exactly what hearsay is. The rule against hearsay is not defined in any statute . Professor Sir Rupert Cross has offered as a statement of the rule that it is “a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact stated” .
One of the longest established principles of the law of evidence is that, in order for the evidence to be acceptable, it’s necessary for it to be related to the issues that are being set out in any case. It must have probative value. This is required because the actual purpose of evidence is to build up the necessary basis on which can be used to provide proof of the matters in quarrel in any civil or criminal case . In this essay I will discuss the imperative differences between the different standards of proof required in civil and criminal trials. Another key principle is evidence should be capable of being tested in court under oath, especially through cross-examination so that if a precise piece of evidence is not capable of being tested in this way, it is likely to be regarded as inadmissible, even if it appears to be relevant. The risks associated with hearsay and arising from the constitutional right to fair procedures, such as the right to cross-examine those sourcing evidence, there should be no general inclusionary approach to hearsay in either civil or criminal proceedings .
The leading Irish case on the rule against hearsay is Cullen v. Clarke [1963] . This case held that when a witness is presented that may not be able to testify in court as to the words spoken by a person who is not produced as a witness, there was no general rule of evidence. However, there is a common rule that is subject to many exceptions that the evidence of such words is inadmissible to prove the truth of the facts which they proclaim. The exceptions that have developed in this area have essentially diluted the rule and they have extended to such an extend it’s difficult to see where a line can be drawn. Cullen shows that it’s the fact the words were spoken a statement is admissible rather than when their truth is being sought to be proved and this is the rule known as hearsay. Hearsay derived from the principle of orality conferring that truth is best discovered by the unrehearsed reactions on the oath of witnesses who have actually witnessed said events and who is then subjected to cross-examination before the court. When it comes to hearsay there is a danger that statements formally being submitted to the court will be modified to fit the requirements of the submitting party. Another problem with this rule is that it can cause confusion among the jury due to an excess of evidence that is of little value which I will consider in detail below. The two seminal reasons for adapting the exclusionary approach to hearsay are: the out-of-court statements cannot be tested by cross-examination and they are not made under oath. The Supreme Court noted in Cullen there are various inclusionary exceptions to this rule, so that evidence may be admitted even where it’s not subjected to cross-examination. Kingsmill Moore J, clarified that the hearsay rule is universal to the effect that testimony presented by a witness regarding words spoken, by a person who is not present in the course of the trial as a witness is inadmissible if the testimony is offered to verify the truth of the facts which they proclaim.
The rule against hearsay comes with inclusionary exceptions. Below I will give a brief overview of their operation. It’s necessary to evaluate in detail how hearsay operates in order to show whether or not it remains necessary in our legal system. The root cause of the complications with hearsay is the chaotic way the exceptions have surfaced. Lord Reid said that ‘when the rule proved highly inconvenient in a particular kind of case it was relaxed just sufficiently to meet that case and without regard to any question of principle’ . The most important inclusionary exception to this rule concerns the confession of evidence. Confession evidence was considered in People v. O’Neill where it was made clear that the requirement of corroboration is not too strong as the jury could convict in the absence of corroboration. Due to the fact that confessions emerge in the pre-trial period of detention, cautionary elements are attached to tendering of such statements . This is hearsay evidence because it was made off the record and has been proposed to prove that the accused killed the victim but because a confession is an exception to the rule, this evidence is admissible in court. It’s implied that a party would not make a statement contrary to their own interests unless it was true. The respondent’s out-of-court statements are only admissible if they incriminate the person making them. The rule against hearsay is also relevant to written statements made outside of court such as letters or written records where the creator of the document is not capable of testifying in court as to its validity. An example of a statutory exception would be that, under the Documentary Evidence Act 1925 , public documents and records are deemed admissible, and this inclusionary exception applies to both civil and criminal proceedings. These inclusionary exceptions to the rule were built on the basis that the statements, even though they were incapable of being tested by cross-examination, they are deemed as reliable and don’t need to be tested because of the circumstances in which they were produced. The Criminal Evidence Act 1992 extended the admissibility of business records in criminal cases. This provision follows the English approach where hearsay statements by recognizable persons were made generally admissible . It’s not always possible to draw a difference between statements that fall within the scope of the rule and those outside it. This is particularly the case in the context of the distinction between original evidence and hearsay. It’s well known in the law of evidence that original evidence of a statement is admissible not to prove that the statement is true but to prove that it was made. A statement may be admissible as original evidence because it is itself a fact in issue or the statement is relevant to a fact in issue in the proceedings. If the evidence is presented for either purpose, the fact that a statement is made out of the court does not render it hearsay. In the Subramaniam case which I have referred to above, the respondent was charged with possession of ammunition for the purpose of helping a terrorist enemy, which carried a sentence of death. He pleaded the defence of duress claiming that he had no option as the terrorists, who had detained him, had threatened to kill him if he did not agree to their requests. He requested to testify about conversations he had had with the terrorists. At his trial, these conversations were found to be hearsay and excluded. The case was appealed to the Privy Council, who held that the decision should be overturned, and the evidence was admitted on the basis that the conversations would be hearsay only if the purpose of submitting the evidence was to prove the truth of the contents of the statements.
The hearsay rule allows a respondent to supply evidence of a letter or witness statement where the declarant is no longer available to appear in court and cannot be cross examined. The problem with this is that such evidence, however weak and unreliable, might persuade a tribunal of fact that the respondent was guilty beyond a reasonable doubt. The tribunal are usually lack the ability to sift through vast amounts of evidence treating such hearsay as first-hand evidence when this is simply not the case. A warning must be given to the tribunal where this is of issue. It also allows for evidence to be introduced that may have been misinterpreted by the declarant and the risk of this is greater in situations where the declarant had a preconceived idea about what the person was going to say. If the declarant is unavailable to be cross-examined this allows for an oversight of the errors that will not be exposed during the trial. The hearsay rule in its original form cannot be justifiably retained as it eliminates the statements where risks are present and statements where there is no doubt about what was said. The absence of any opportunity to cross-examine the maker of a hearsay statement is the objection to hearsay most strongly pressed today .
In order for the hearsay rule to be abandoned it must be clearly defective. It can be argued that the most blatant defect of the rule is that it leads to the arbitrary exclusion of cogent evidence. As the hearsay rule applies to both parties it can lead to great difficulties for the respondent to put credible evidence that points to their innocence before the courts. In Sparks v. R the rule barred a man who was alleged to have assaulted a three-year-old girl who was not called as a witness as she had initially described her attacker as “a coloured boy”. The inadmissibility of such evidence can lead to undesirable results. If there is cogent evidence that someone other than the accused has committed the crime this may be inadmissible, and this rule can bring a worrying predicament for an appellate court. The conviction can be quashed because the court knows the evidence is inadmissible, but they will conceal that this is happening. Current law has led to injustices which the Court of Appeal can only remedy and this is after the respondent has been deprived of their liberty. Another point to note is that the application of the hearsay rule itself is very difficult and as I have already mentioned this results in a warning being giving to the jury to disregard certain evidence and it can be very difficult for the juries to follow such direction. It appears that there is no fusing principle behind this rule and this gives rise to perplexities. The Court’s time is wasted due to the complicated nature of this rule. This stems from the rules and exceptions around hearsay being unnecessarily complex. In most cases, substantial time is spent on deciding whether or not the rule applies and if there are any relevant exceptions that need to be considered. It is true that some laws do need to be complex in order for them to be just, but this is not the case for the rule against hearsay. The complexity of this rule is neither rational or just. Cogent evidence can be kept from the court, but it may vindicate the accused, because the fact-finders are not dependable to treat untested evidence with the attention that it deserves. If however hearsay is admitted there is nothing to inhibit them from committing on it alone. In a scenario where cogent evidence is excluded by the rule, it is not a shock that the parties may try to evade inconvenient exceptions by distinguishing the true nature of the evidence that is being presented .When a witness experiences interruption during their oral evidence, they may be sidetracked. There is no certainty as to whether such evidence will be admitted or not because of the reliance on judicial discretion.
The next thing that must be considered in order to evaluate the necessity of the hearsay rule is judicial discretion and this comes with both advantages and disadvantages. The key advantage of this aspect of the rule is that it allows the court to modify their decisions on each case. On the other hand, the major disadvantage is where discretion is open to the court, it will be implemented in a different way depending on what judge is in charge. This results in inconsistencies and there is no way of predicting what evidence will qualify to be admitted and what wont. The reason this is of importance is due to the fact that the ability to appeal against the judge’s decision is limited. This can be seen where the prosecution has no right to appeal and if the defence tries to contest the ruling on appeal, the Court of Appeal can’t merely exchange its own decision for that of the judge. As the admissibility of evidence solely depends on the court’s discretion, it has been left open to arbitrary criticisms. The arbitrariness is not always evident on the face of the legislation, but the presence of certainty is illusionary as the issues that are to be considered span in different directions, and this allows the judge to decide to either admit or exclude his own judgement if he takes all into account the relevant factors. The 1996 Act allows for statements to be disclosed at depositions taken by the courts to be admitted at trial but they are inadmissible if any party to the proceedings object. However, this objection can be outweighed if the court believes that it is in the interests of justice to make such an order. The trial judge has a discretion to prevent the deposition from being used but there is no suggestion as to how this discretion should be exercised. This gives rise to almost unfettered scope for the exercise of discretion and this has led to concern. All of this has facilitated depositions to be presented even where there has been no cross-examination of a witness and where the witness is not available. This deprives the respondent of their right to cross-examine and it takes the opportunity away from the jury of being able to evaluate the demeanour of the witness. The most applicable way of testing a witness’s account is through cross-examination and this is the core characteristic that differentiates testimonial from hearsay evidence. Cross-examination is needed for the effective operation of the courts but it is the objection to the hearsay rule that is strongly at issue today. It is in this regard that hearsay takes away from the rights of one of the parties.