Hearsay and the Exceptions
Hearsay and the exceptions
This domain tests statements made outside court that are offered to prove the truth of their contents. Hearsay is generally inadmissible because the maker cannot be cross-examined and the tribunal cannot observe demeanour. The exam usually turns on identifying hearsay, then finding an exception or a non-hearsay use.
Core rules
- Definition. A statement, whether oral, written or implied by conduct, made by a person not testifying, adduced to prove a matter stated. If the purpose is only to show the statement was made, its effect on the listener, or the speaker's state of mind, it is original evidence, not hearsay.
- Criminal exceptions. These include admissions and confessions, res gestae (spontaneous statements in the heat of an event), public documents, reputation as to family or public rights, statements in furtherance of a common enterprise, and statutory exceptions for unavailable witnesses, business records and interests of justice. Notice and reliability safeguards usually apply.
- Civil proceedings. Hearsay is admissible, but the court controls weight and may require notice, particulars or the attendance of the maker.
- Safeguards. The court considers reliability, the reason for absence, prejudice, and whether the maker can be challenged.
Worked example
A bystander shouts 'That is the man who hit her!' immediately after an attack. If offered to prove identity, it is hearsay. It may be admitted under res gestae because it was spontaneous and made under the pressure of the event. If offered only to show why the police arrested D, it is not hearsay at all. The judge must still consider reliability and fairness.
Traps
Do not label every out-of-court statement hearsay. Check the purpose for which it is adduced. Do not ignore implied assertions or mixed statements. Do not assume a statutory exception automatically applies; notice and reliability conditions matter.