Hearsay

Legal term
the form of evidence

Hearsay, in a legal forum, is an out of court statement which is being offered in court for the truth of what was 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, a witness testifies, "Susan told me that Tom was in town." Because the witness's evidence relies 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 not available for cross examination. Note, however, that if the matter at hand is not 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. Now the witness is asked about the opposing party's statement that constitutes a verbal act. In one example, testimony that a plaintiff stated "I am Napoleon Bonaparte" would be hearsay as proof that the plaintiff is Napoleon, but would not be hearsay as proof that the plaintiff believes they are Napoleon. 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. Double hearsay is a hearsay statement that contains another hearsay statement itself. Each layer of hearsay must be found separately as admissible for the statement to be admitted in court. Many jurisdictions that generally disallow hearsay evidence in courts permit the more widespread use of hearsay in non judicial hearings.

Hearsay evidence is generally inadmissible in Canada unless it falls within one of the established common law exceptions. As a result of the Supreme Court's decision in R. v. Khan and subsequent cases, hearsay evidence that does not fall within the established exceptions can be admitted where established that such evidence is both "necessary and reliable". Additionally, hearsay evidence that would otherwise be admissible as an exception can nonetheless be excluded if it is not necessary and reliable, as in R. v. Starr.

The rules of evidence differ among the states and the Commonwealth; the Commonwealth, Victoria, New South Wales, Tasmania, and the Australian Capital Territory all share similar hearsay provisions in their Uniform Evidence Acts; the other states rely upon the common law. As elsewhere, hearsay is usually inadmissible, outside of interlocutory proceedings, unless it falls within one of the hearsay exceptions.

Hearsay is dealt with under Part 3·2. There are several local peculiarities with its treatment. s 59 defines the "fact" of a hearsay statement as being something "that it can reasonably be supposed that the person intended to assert by the representation". Hearsay rule confines the potentially broad number of assertions it might cover by this broad definition of representation to only intended representations adduced to prove existence of the asserted facts. In Lee v The Queen, the term representation was used to apply to statements and to conduct and was used to encompass all those statements or that conduct would convey to the observer. The extraordinary s 60 allows a statement's use as hearsay if it is admitted for a non hearsay purpose, although the application of s 60 may be limited by s 137 (which is essentially the discretion formerly known as Christie). S 72 excepts "evidence of a representation about the traditional laws and customs of an Aboriginal or Torres Strait Islander group", although this arguably would have fallen into the "public right" exception at common law. Confessions are called "admissions" by the act (which led to the confusion whereby counsel apply for the "admission of the admission"). They are dealt with separately under Part 3·4, which lifts the hearsay rule. The act's dictionary defines admission broadly enough to include anything that might be used against the accused. The other sections in the part for the most part codify, roughly, the common law rules.

In Malaysia, hearsay evidence is generally not allowed. However, the Evidence Act 1950 permitted a few exceptions, such as section 60, 73A, 73AA etc.

Hearsay evidence is covered by sections 16 22 of the Evidence Act 2006. Previously inadmissible, the 1989 decision of the Court of Appeal in R v Baker created a common law exception to the hearsay rule based on reliability, which was codified in the Evidence Act. 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).

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)and some other exceptions from section 17 to section 39. Some other exceptions are provided by case law (see Subramaniam v. DPP [1956] 1 WLR 956 (PC)).

Sweden allows hearsay evidence. Sweden applies a principle of admissibility of evidence which means that there are very few restrictions on what evidence is allowed in court. It is then up to the court to evaluate the reliability of the evidence presented.