LAW REFORM COMMISSION PUBLISHES CONSULTATION PAPER ON tHE USE OF HEARSAY AS EVIDENCE IN CIVIL AND CRIMINAL CASES
CONSULTATION PAPER PROPOSES THAT, IN CIVIL CASES, HEARSAY SHOULD GENERALLY BE ALLOWED AS EVIDENCE, AND THAT, IN CRIMINAL CASES, EXISTING EXAMPLES WHERE HEARSAY IS ALLOWED SHOULD BE RETAINED
Monday 29th March 2010: The Law Reform Commission’s Consultation Paper on Hearsay in Civil and Criminal Cases will be launched by the Director of Public Prosecutions, James Hamilton, at the Commission’s offices at 6 pm this evening.
The Consultation Paper forms part of the Commission’s Third Programme of Law Reform 2008-2014, and involves an examination of the extent to which hearsay should be admitted in evidence in civil and criminal cases. The Commission has recently published two other Consultation Papers on the law of evidence – dealing with expert evidence and documentary/electronic evidence – and will publish a composite Report dealing with these three major areas of the law, together with a draft Evidence Bill.
Background: hearsay and the hearsay rule
The law of evidence concerning hearsay refers to any testimony given by a witness about words spoken or a document generated out of court by another person who is not produced in court as a witness, where the testimony is presented to prove the truth of what is asserted in the words or document involved.
A key principle in the law of evidence – which has primarily been developed by court decisions rather than legislation – is that, in general, to be admissible the evidence must be relevant. Another key principle is that, in general, evidence should be capable of being tested in court, especially by cross-examination. Hearsay evidence, which can often pass the relevance test, cannot usually be tested by cross-examination, and so the traditional approach of the law of evidence is that hearsay should not be admissible in evidence.
A large number of exceptions allowing hearsay to be admitted in evidence have been developed over the years by the courts, and in legislation, because it has been accepted that excluding all hearsay would be unjust. An example of admissible hearsay is the “business records” rule in the Criminal Evidence Act 1992 (which implemented a previous Law Reform Commission recommendation). This allows, for example, records of chassis numbers for a car generated by the car manufacturer’s employees three years ago (the specific employee is unlikely to be available to testify that he can remember putting the number on a specific car) to be used as evidence in a theft case now in order to prove that the car in question was stolen.
Main recommendations
The main provisional recommendations in the Consultation Paper are:
- in civil cases, hearsay should in general be admissible in evidence, subject to certain conditions, notably the need to give advance notice, and a discretion by a court to exclude hearsay if it would be prejudicial or misleading;
- in criminal cases, hearsay should continue in general to be inadmissible in evidence, subject to existing exceptions allowing hearsay to be admissible;
- the rules on hearsay in civil and criminal cases should be set out in legislation.
Specific recommendations
Among the specific provisional recommendations in the Consultation Paper are:
- hearsay should be defined in legislation and, in general, direct evidence that is capable of being tested by cross-examination is preferable to hearsay
- the constitutional requirement of fair procedures does not completely prohibit the use of hearsay, but in a criminal case the rights of the accused may prohibit a general rule allowing the general admissibility of hearsay
- the existing inclusionary exceptions should be retained, and these include: business records (Bankers’ Books Evidence Act 1879; Criminal Evidence Act 1992); confessions and admissions; dying declarations (murder and manslaughter cases only); public documents and published works (Evidence Act 1851; Documentary Evidence Act 1925); spontaneous statements made at almost the same time as the event involved in a case (referred to as the res gestae); testimony given in previous court proceedings
- the Commission invites submissions on the use of hearsay, in the statements of agreed facts, during sentencing hearings.
For further information / interview with the President, Mrs Justice Catherine McGuinness, or Director of Research Raymond Byrne, contact: Eoin Quinn, Weber Shandwick FCC, T: 01-6760168, or M: 087 233 2191
Background Notes for Editors
The Law Reform Commission is an independent statutory body whose main role is to keep the law under review and to make proposals for reform. To date, the Commission has published over 150 documents (Consultation Papers and Reports) containing reform proposals, available at www.lawreform.ie. A large majority (about 70%) of these proposals have led on to reforming legislation. The Consultation Paper will be available on the Commission’s website on the afternoon of the launch, 29th March 2010. A Consultation Paper contains the Commission’s provisional recommendations on an area, and submissions on it are welcome. Those who wish make submissions are requested to do so in writing by post to the Commission or by email to info@lawreform.ie by 31 May 2010.