Hearsay Evidence Rule
SOURCE: https://www.robsoncrim.com/single-post/2018/04/16/R-v-Johnston-MBCA-2018-A-Deep-Dive-into-Hearsay
The rule prohibiting hearsay (out of court statements offered as proof of that statement) from being admitted as evidence because of the inability of the other party to cross-examine the maker of the statement.
There are several exceptions to the hearsay rule (including present-sense impression, excited utterances, declarations of the present state of mind, dying, and the business records exceptions), as well as things defined not to be hearsay (admission of a party opponent, and prior statements of a witness).
SOURCE: https://www.law.cornell.edu/wex/hearsay_rule
Hearsay evidence, in a legal forum, is testimony from a witness under oath who is reciting an out-of-court statement, content of which is being offered to prove the truth of the matter asserted.
In most courts, hearsay evidence is inadmissible (the "Hearsay Evidence Rule") unless an exception to the Hearsay Rule applies.
For example, to prove that Tom was in town, the attorney asks a witness, "What did Susan tell you about Tom being in town?" Since the witness's answer will rely on an out-of-court statement that Susan made, if Susan is unavailable for cross-examination, the answer is hearsay. A justification for the objection is that the person who made the statement is not in court and thus is insulated from cross-examination. Note, however, that if the attorney asking the same question is not trying to prove the truth of the assertion about Tom being in town but the fact that Susan said the specific words, it may be acceptable. For example, it would be acceptable to ask a witness what Susan told them about Tom in a defamation case against Susan because now the witness is asked about the opposing party's statement that constitutes a verbal act.
The hearsay rule does not exclude the evidence if it is an operative fact. Language of commercial offer and acceptance is also admissible over a hearsay exception because the statements have independent legal significance.
Operative fact
An operative fact is a legally relevant fact that establishes a legal relationship between persons.
For example, if a person is the beneficiary of a disability insurance policy, that person becomes entitled to benefits upon becoming disabled. Proof of disability is an operative fact, because it establishes the beneficiary's legal right to receive the insurance benefits.
Any fact that tends to prove or disprove the existence of another fact is classified as an evidential fact. An operative fact may also be an evidential fact, but it is not necessarily the case that it will be evidential. Similarly, additional evidence may be required before a legal relationship is proved. For example, if one person strikes another person that fact may create legal right to recover damages for battery, thus potentially establishing a legal relationship. That same act could be introduced as evidence of the defendant's state of mind.
In litigation, both operative and material facts are relevant to a decision to be made by the court. Thus, all operative facts are also classified as material facts.
The term "operative fact" as a descriptor of the factual premise to a legal conclusion appears rooted in Hohfeldian legal semiotics.
https://en.wikipedia.org/wiki/Operative_fact
Double hearsay
Double hearsay is a hearsay statement that contains another hearsay statement itself. For example, a witness wants to testify that "a very reliable man informed me that Wools-Sampson told him". The statements of the very reliable man and Wools-Sampson are both hearsay submissions on the part of the witness, and the second hearsay (the statement of Wools-Sampson) depends on the first (the statement of the very reliable man). In a court, both layers of hearsay must be found separately admissible. In this example, the first hearsay also comes from an anonymous source, and the admissibility of an anonymous statement depends upon the discharge of an additional legal burden of proof.
Many jurisdictions that generally disallow hearsay evidence in courts permit the more widespread use of hearsay in non-judicial hearings.
https://en.wikipedia.org/wiki/Hearsay
United States
The Sixth Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him".
"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Per Federal Rule of Evidence 801(d)(2)(a), a statement made by a defendant is admissible as evidence only if it is inculpatory; exculpatory statements made to an investigator are hearsay and therefore may not be admitted as evidence in court, unless the defendant testifies. When an out-of-court statement offered as evidence contains another out-of-court statement it is called double hearsay, and both layers of hearsay must be found separately admissible.
There are several exceptions to the rule against hearsay in U.S. law. Federal Rule of Evidence 803 lists the following:
- Present sense impressions and Excited utterances
- Then existing mental, emotional, or physical condition
- Statements for purposes of medical diagnosis or treatment
- Recorded recollection
- Records of regularly conducted activity, including absence of entry in records
- Public records and reports, including absence if entry in records
- Records or births, fetal deaths, deaths and marriages made pursuant to law
- Records of religious organisations of facts of personal or family history, contained in a regularly kept record
- Marriage, baptismal, and similar certificates
- Family records
- Statements in documents affecting an interest in property
- Statements in ancient documents
- Market reports, commercial publications
- Learned treatises
- Reputation concerning personal or family history, boundaries, or general history, or as to character
- Judgment of previous conviction
- Judgment as to personal, family, or general history, or boundaries.
Rule 804 adds several additional exceptions where the declarant is unavailable:
- Former testimony
- Statement under belief of impending death in homicide or civil actions
- Statement against interest
- Statement of personal or family history
- Forfeiture by wrongdoing
Also, some documents are self-authenticating under Rule 902, such as:
- (1) domestic public documents under seal,
- (2) domestic public documents not under seal, but bearing a signature of a public officer,
- (3) foreign public documents,
- (4) certified copies of public records,
- (5) official publications,
- (6) newspapers and periodicals,
- (7) trade inscriptions and the like,
- (8) acknowledged documents (i.e. by a notary public),
- (9) commercial paper and related documents,
- (10) presumptions under Acts of Congress,
- (11) certified domestic records of regularly conducted activity,
- (12) certified foreign records of regularly conducted activity.
England and Wales
In England and Wales, hearsay is generally admissible in civil proceedings, but is only admissible in criminal proceedings if it falls within a statutory or a preserved common law exception, all of the parties to the proceedings agree, or the court is satisfied that it is in the interests of justice that the evidence is admissible.
Section 116 of the Criminal Justice Act 2003 provides that, where a witness is unavailable, hearsay is admissible where:
- a) the relevant person is dead;
- b) the relevant person is unfit to be a witness because of his bodily or mental condition;
- c) the relevant person is outside the UK and it is not reasonably practicable to secure his attendance;
- d) the relevant person cannot be found;
- e) through fear, the relevant person does not give oral evidence in the proceedings and the court gives leave for the statement to be given in evidence.
The two main common law exceptions to the rule that hearsay is inadmissible are res gestae and confessions.
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