Hearsay

This article is about the form of evidence. For other uses, see Hearsay (disambiguation).

Not to be confused with Hear'Say or heresy.

Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of the use of such information as evidence to prove the truth of what is asserted. Such use of "hearsay evidence" in court is generally not allowed. This prohibition is called the hearsay rule.

For example, a witness says "Susan told me Tom was in town" as her evidence to the fact that Tom was in town. Since the witness does not offer in this statement the personal knowledge of the fact, this witness statement would be hearsay evidence to the fact that Tom was in town, and not admissible. Only when Susan testifies herself in the current judicial proceeding that she saw Tom in town, that Susan's testimony becomes admissible evidence to the fact that Tom was in town. However, a witness statement "Susan told me Tom was in town" can be admissible as evidence in the case against Susan when she is accused of spreading defamatory rumors about Tom, because now the witness has personal knowledge of the fact that Susan said (i.e. pronounced the words) "Tom was in town" in the presence of the witness, also it is an opposing party’s statement.

Many jurisdictions that generally disallow hearsay evidence in courts permit the more widespread use of hearsay in non-judicial hearings.

Worldwide

United States

Main article: Hearsay in United States law

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 only admissible as evidence 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.

There are several exceptions to the rule against hearsay in USA law. Federal Rule of Evidence 803 lists the following: (1) present sense impression, (2) excited utterance, (3) then existing mental, emotional, or physical condition, (4) ... medical diagnosis or treatment, (5) recorded recollection, (6) records of regularly conducted activity, (7) absence of entry in records ..., (8) public records and reports, (9) records of vital statistics, (10) absence of public record or entry, (11) records of religious organizations, (12) marriage, baptismal, and similar certificates, (13) family records, (14) ... property records, (15) statements in documents affecting an interest in property, (16) statements in ancient documents, (17) market reports, commercial publications, (18) learned treatises, (19) reputation concerning personal or family history, (20) reputation concerning boundaries or general history, (21) reputation as to character, (22) judgment of previous conviction, and (23) judgment as to personal, family or general history, or boundaries. 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

Main article: Hearsay in English law

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.

Canada

In Canada hearsay is admissible as evidence provided it meets what are called "hearsay exceptions" which are not fully enumerated but the Supreme Court has visited the issue multiple times, as in R. v. Starr.

Hong Kong

Hong Kong's law of hearsay is modeled on the law in England and Wales. Since 1 July 1997, English cases are merely persuasive and not binding on Hong Kong courts, but in practice they are usually followed. The situation for civil cases is covered by ss 46-55B of the Evidence Ordinance. That Ordinance also covers certain exceptions in criminal cases, supplementing the common law.

New Zealand

Hearsay evidence is covered by sections 16-22 of the Evidence Act 2006. Pursuant to s 4(1) of the Act, a hearsay statement is a statement made by someone other than a witness (in the proceedings) that is offered to prove the truth of its contents. Under section 17 of this Act a hearsay statement is generally not admissible in any court proceeding. Though section 18 states when a hearsay statement may be able to be given in court. This is when the statement is reliable, the statement maker is unavailable to be called as a witness or it would provide undue expense and delay if that person was required to be a witness. There are also a number of specific exceptions such as statements in business records. Other exceptions include state of mind evidence (see R v Blastland) and whether the statement is tendered to prove the fact it was uttered or made, rather than to prove the truth of its contents (see DPP v Subramaniam).

Sri Lanka

In Sri Lanka, hearsay evidence is generally not allowed. However, the Evidence Ordinance recognizes a few exceptions such as res gestae (recognised under Section 6) and common intention (recognised under Section 10). Some other exceptions are provided by case law (see Subramaniam v. DPP [1956] 1 WLR 956 (PC)).

Malaysia

In Malaysia, hearsay evidence is generally not allowed. However, the Evidence Act 1950 permitted a few exceptions such as section 6, 73A and etc.

See also

• Gossip
• Moral certainty
• Probable cause
• Reasonable person
• Reasonable suspicion
• Scuttlebutt