May 16, 2016

For the thousands of Jamaicans who have to give evidence in our court system, it can be very frustrating to be interrupted repeatedly by a judge or to be subject to frequent objections by lawyers on the basis that what is about to be said or what is being said as evidence is, in fact, hearsay.

The objection to hearsay is due to the fact that the process of a trial in court is largely a truth-finding process that is governed by strict rules of evidence, with which lawyers and judges have to grapple each day.

So that we understand what is hearsay, a good starting point is to note how the rule was formulated at common law where it developed. It was generally cast in these terms: "Any statement other than one made by a witness while giving testimony in the proceedings in question is inadmissible as evidence of the facts stated". Hearsay, is, however, usually understood in the terms defined by the Black's Law Dictionary, that being: "A term applied to that species of testimony given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others."

This, of course, is only one of the forms that hearsay evidence may take because, on a stricter formulation, a hearsay statement can be one made by the witness himself, and not necessarily a statement made by someone else. Once the statement is one that was made out of court (by anyone), it falls within the ambit of the hearsay rule, if the purpose for which it is being elicited is to prove that what was said was true.

It should be noted, too, that statements to which the rule applies include oral statements, written statements, and gestures.

The primary purpose for the rule against hearsay is to ensure that witnesses only testify to facts that are within their own knowledge, perception and experience, rather than facts they have heard about.

The hearsay rule is to avoid second-hand evidence. As one law lord put it: "It is not the best evidence and is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost" - per Lord Norman in Teper v R [1952 AC 480].

There are, however, several exceptions to the hearsay rule, both at common law and by statute, as it was recognised that an insistence on its strict application could lead to injustice. So, by way of exception, the statements of persons who are not called as witnesses in the proceedings in question are rendered admissible upon the satisfaction of certain prescribed conditions. For instance, the dying declaration of a murder victim identifying his killer; forensic reports; medical reports; business documents; and the statement of witnesses who are not available to testify (in specified circumstances) may be admitted without the maker of those documents being called to give oral testimony.

Persons who are called to give evidence must remember that you can always give evidence of your own personal knowledge and perception, unless what you have to say is permissible as an exception to the rule against hearsay. In the end, it is all about fairness, but it also gives full effect to the old adage that 'hearsay nuh go nuh weh'.

Other Features Stories