The general hearsay rule at common law provides that a person only give evidence of matters he saw or observed of his own personal knowledge. The Courts emphasised the ability to draw inferences as to the honesty and reliability of witnesses in relation to what he had perceived.
A statement made by another person outside of Court is not generally admissible as evidence of the truth of its content. However the fact that such statements will often be relevant for other reasons. There are many instances where statements have legal effect (such as in contract cases) irrespective of their truth. Hearsay encompasses documents, photographs etc. where they are offered as truth of their content.
In an affidavit hearsay is admissible provided the source is stated.
The Civil Evidence (Northern Ireland) Order, 1997 substantially amended the rules on hearsay. The Order defines hearsay as statements made by a person giving verbal evidence in proceedings which is offered as evidence of the matter stated. It includes hearsay of whatever degree e.g. second hand, third hand.
The general principle under the legislation is that hearsay is not to be excluded subject to certain safeguards. All hearsay is admissible irrespective of whether it is first or second-hand ore more remote. It does not make any difference if the hearsay is verbal or oral. Hearsay can be exuded on other grounds that would apply to witness evidence, such as that it is a relevant privilege.
The original statement in relation to hearsay is a statement of fact by a person with personal knowledge or an opinion by a person holding that opinion. Hearsay is excluded if the maker would not be competent to give evidence. It then is not admissible.
It is implicit that the first person purported to speak with personal knowledge or that in the case of opinion evidence the first statement’s opinion would be admissible if stated by him in Court. This implies it must be evidence of an impression or expert opinion. It is implicit that there should be evidence of the identity of the chain of reportage from the maker to the person in Court.
If the contents of the hearsay have been written down it should be proved by production of a document or a copy. It can only be proved by oral evidence if the original document is proved to have been destroyed or is not available for good reason or other reasons.
Weight to be Attached
In estimating the weight or cogency of a hearsay the Court must have regard to the circumstances on which its reliability can be inferred, the fact that the party did not give notice of intention to adduce hearsay and to fact. Courts may also have regard to whether
- it would be reasonable practicable to call the maker of the statement,
- whether the original statement was contemporaneous,
- whether there is multiple hearsay,
- whether persons involved have a motive to conceal or represent,
- whether the original statement was an edited account or made in collaboration with another person and
- other relevant circumstances.
Relatively little weight will be attributed to hearsay if the person could easily attend and does not appear. Where the maker of a statement or report is not called as witness, relevant factors as to weight include whether that person had a duty to make the statement e.g. recorder or registrar etc.
Where the maker of a statement is not called, evidence can be adduced relating to his credibility. This includes
- evidence which would be admissible to support his credibility
- evidence that would be to relevant to attack that person’s credibility as a witness e.g. reputation for dishonesty, criminal conviction, unreliability, bad memory, etc.
- with the leave of the Court, evidence which could be put to the person in cross-examination relating to his credibility, but which could not be adduced as evidence to achieve contradictory answers e.g. bias, malice, bad character, can be offered,
- evidence which proves he has made an inconsistent statement where it would be admissible to prove he has contradicted himself if he was a witness
- with leave of the Court evidence which proves he has made a consistent statement consistent where it would be admitted to support his credibility, to rebut recent fabrication or inconsistency.
Where a person offers hearsay evidence the other party may seek leave of Court to call the maker of the statement and cross-examine him as if his hearsay statement was his main evidence. If the Court grants consent, it adjourns the proceedings in order for the maker of the statement to be called. The relevant factors depend on whether the person is able to attend, importance of the nature of evidence, whether the person seeking cross-examination can show grounds of mistake or dishonesty, whether the person can reasonably be expected to remember the events.
Prior Consistent Evidence Allowed
The common law rule that a person made a previous consistent statement was reformed changed so that such evidence is admissible. The previous statement of the person giving evidence is admissible.
If the person calling the witness wants to adduce the statement it is admissible
- by leave of Court
- or to rebut a suggestion of fabrication or
- if it is used to refresh memory and the other side’s counsel has cross-examined him on parts not used.
A previous inconsistent statement may be put in cross-examination. It may be put in examination in chief, if the witness has been declared hostile.
Common Law Hearsay Exceptions
The common law exceptions to the hearsay evidence rule still apply. Many of these are not true exceptions. They include the following:
Words that form part of the transaction concerned. Words constituting facts in issue and words accompanying acts, abuse are admissible as they are not offered as proof of their content. Words indicating mind, motive, mood, intention, health symptoms, age, state of knowledge and belief may be admissible. Words contemporaneous with the event or so close in time that there was no time to concoct a falsehood are admissible statements at common law.
Admissions by a party proved in evidence are admissible against him where they are adverse to his interests. Failure to respond may be treated as an admission where the parties were on equal terms and a response would be expected.
A statement made in the presence of a party or witness, if proved by evidence otherwise admissible is allowed.
Statements made by deceased persons in relation to certain matters are admissible such as
- declarations against interest,
- declarations made in the course of duty,
- declarations by public rights, family relationships and pedigree,
- statements in public records,
- examined copies of bank books, entries in the course of banks or building society of the books .
If an agreement or legal act has been put in writing, the document is generally itself the only evidence of the transaction. This only applies where the document constitutes the transaction rather than being a receipt or invoice. Evidence is not generally admissible to interpret a document so as to contradict its clear meaning or words.
Some documents such as deeds and wills must be proved to have been executed.
Generally a document is proved by production of the original and identification by a witness. A party may prove authenticity of a document by a witness giving evidence that it is what it purports to be. Alternatively this may be admitted.
It may be proved by the author or by calling a handwriting expert and comparing admitted general specimens. Handwriting can be proved by any lay person familiar with the author’s handwriting.
Hearsay contents of computer records are admissible upon production of certificate that the computer is properly working and in order.
Under the reformed hearsay legislation, a statement in a document is admissible as evidence in civil proceedings. It may be proved by production of the document or a copy in such manner as the Court may approve. This does not amend the best evidence rule that the original must be produced unless one of the exceptions applies.
A document which is part of the records of a business or public authority may be received without further proof. It can be proved by production of a certificate purportedly signed by the responsible officer of the authority. The absence of an entity may be proved by affidavit of the officer. Business includes any regular activity whether or not for profit.
The common law rules was that the document itself must be proved unless there were good reasons, such that it has been destroyed or there were other good reasons for its non-availability. Where a statement contained in a document is admissible it may be proved by production of a copy or a material part authenticated in such manner as the Court may approve. It does not matter that the document itself still exists.
A photograph is admissible if relevant in the same manner as a document. It is not necessary to call the person who took it and developed it. Similar rules apply to film and audiovisual recordings.