HEARSAY

Contents

1. Introduction
2. Objectives
3. Main Contents

• Definition
• Why Hearsay Evidence is inadmissible
• Scope of the Rule
• Rule against Hearsay

4. Conclusion
5. Summary
6. Tutor Marked Assignment
7. Reference/Further Reading

 INTRODUCTION

Hearsay is the testimony by a witness of what other persons have said, not what he or she knows personally. It is a statement which is not made by a person  while  giving  oral evidence in a proceeding and which is tendered as evidence of the matters stated. The general exclusionary rule of hearsay evidence is that such a testimony is no evidence. The reasons may be that what the other person has said is not put on oath; the person who is to be affected by it has had no opportunity to cross-examine him or her; it is also not the best evidence.  When  faced  with   the   issue   of   hearsay,   you   should   consider   the relevance of the items of the evidence and the interest shown by the party in the  statement.

If you are consulting English books on evidence, you should pay attention to the age. The hearsay rule in criminal trials has undergone enormous revision in the U.K. it is no longer limited except and in the interest of justice by agreement, statute or common law unlike Nigeria. The U.K recognizes first hand, second hand or multiple hearsay.  The hearsay rule has been abolished in the English Civil proceedings. In Nigeria, the exclusionary mile is still a fundamental part of the Law of Evidence in both civil and criminal proceedings. In this unit you shall learn in some detail “This great hearsay Rule”, and its basic principles. You will be empowered to justify, with sound reasoning or otherwise, the desirability of hearsay rule in the Nigeria Law of Evidence.

OBJECTIVES

Under this unit, we have been able to define the term “Hearsay”, Identify the circumstances when hearsay evidence rule applies and the application in the real sense of Legal Practice.

MAIN CONTENT

• Definition of the Rule against Hearsay

Literarily, hearsay is, what a witness has heard from another person of what the accused or defendant has said, not in the presence or to the hearing of the accused or defendant. Traditionally, a testimony that is given by a witness who relays, not what he or she knows personally, but what others have said and is therefore dependent on the credibility of someone other than the witness.

According to Black’s Law Dictionary, 5^th edition, hearsay evidence is the evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. It has also been explained to mean the testimony in a court of a statement made out of the court, the statement being offered as  an assertion to show the truth of matters asserted therein and thus resting for its value upon the credibility of the out-of-court asserter

According to Aguda, hearsay generally means a statement, written or oral, made by a person, who is not called as a witness. An oral or a written statement by a person who is not called as a witness; Evidence of what someone else has said is known as ‘’hearsay evidence’’.

Hearsay are assertions of persons, who are not called as witnesses, made out of court in which they are being tendered for the purpose of proving the truth or falsity of the facts contained in the assertions (oral or written).  The law of Evidence  forbids a witness to  repeat in court any statement (oral or written) made by a third party who is not called as a witness for the purpose of proving the truth of the facts stated. That would be ‘Hearsay’.

Statutory definition of hearsay:

By Section 37 Evidence Act 2011, Hearsay Evidence has been defined as follows:

Hearsay means a statement-

• Oral or written made otherwise than by a witness in a proceeding; or
• Contained or recorded in a book, document or any record  whatever, proof of which is not admissible under the provision of this Act (Evidence Act, 2011), which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
• Examples of Hearsay statements Scenario:

A policeman sees a man jumping down through a window from a building and pursues him. He catches up. The man resists and engages the policeman in  a fight. Zubairu observed it  all.

Zubairu reports to the students Counsellor what he saw. (Direct evidence), the students Counsellor tells the Director what Zubairu told her, Zubairu was not present (first degree hearsay). Abu Katto and Igwe were present. At home Igwe told his wife that Zubairu said that one policeman beat up a man near independent square or so (second degree hearsay). Kalto told her friends one of whom informed Jane (third degree hearsay) that there was a fight earlier in the day where the police as usual just beat up one man.

Do you notice the discrepancies in the in the different statements by different persons concerning one and the same incident? It is for this reason that hearsay is suspect.

Hearsay includes oral or written statement or conduct:

Nike and Ope are sitting on a bench in a field at the NOUN Special Study Centre. Foluke and Adeola are standing apart but at a hearsay distance. Listen to their conversation.

Nike : Ope “Lets go, it has begun to rain.

(Adeola hears what Nike has said. Ope puts on her rain-cape Foluke, Adeola: “The rain is heavy O!”

In  the  proceedings in  the  Court,  the  state  of  the  weather  is in issue.     The prosecution proposes to call the following witnesses to depose to certain                               facts.

Nike: To say that it rained because she remembers saying to Ope, ‘Lets go, it has begun to rain”

Ope: To say it rained that day and she had to put on her rain cap

Adeola:  To say it rained that day because he heard Nike say to Ope “Let’s go, it has begun  to rain”.

Foluke. To say it might have rained at the time because he remembered vividly saying to Adeola, her friend: The rain is heavy o!.

You may need to test each of these oral statements to see how the hearsay rule operates. Nike’s statement to Ope: “let’s go, it has begun to rain” is what she perceived with one of her senses – what she saw; it is direct, and admissible.

Ope’s conduct (putting on her rain cap) is also direct and admissible.

Adeola repeated what someone else (Ope) has said outside the court. It is direct evidence of what Ope has said and to that extent, direct and admissible. But it is hearsay if the object of tendering the evidence is to prove the fact that it rained.

Foluke’s statement is evidence of her previous statement or conduct. It is a statement or conduct in the nature of hearsay. It is not admissible as proof of the truth or falsity of any fact contained in such a statement or conduct.

• Validity of the reasons for excluding hearsay

Arguably some of the reasons above are practically valid. Some do raise dust.

Suppose an investigating Police Officer (IPO) is investigating a case of stealing (theft) against X; Y said to him, I saw X running away with the type of article in question. Such a “valuable” narration by the IPO is however, hearsay.

The Evidence Act makes provision for admission of evidence of certain hearsay statement of relevancies under specified conditions and these include:

1. Statements of relevant facts by person who cannot be called as witness (Section 39).
2. Statements relating to cause of death (Section 40)
3. Statements made in the course of business (Section 41)
4. Statement against the interest of its maker (Section 42)
5. Statements by opinions as to public rights, customs and matters of general interest (Section 43).
6. Statement relating to the existence of a relationship (Section 44)
7. Declarations by testators (Section 45)
8. Statements of facts made in a prior judicial proceedings as proof in a subsequent judicial proceeding (Section 46)
9. statement made under any criminal procedure legislation (Section 47)
10. Depositions at preliminary investigations or coroner’s inquest (Section 48)
11. Written statements of the investigating Police officers (Section 49)
12. ENTRIES in Gazettes, Books, Maps, Acts/Laws, Certificates, Judgments of Courts convictions etc. (Section 50-65)

All these above mentioned are the exceptions to the hearsay rule which shall be fully discussed in the next units.

• Scope

Hearsay rule does not and should not exclude facts. Therefore a fact that is relevant does  not become irrelevant merely because the party seeking to adduce evidence of it has adopted a method which the court does not accept.

Hearsay rule is a means of proof or of providing particular facts. It proscribes a method of proving them. In an era when substantive justice is taking precedent over procedure, the court should apply also the blue pencil rule, excising irrelevant aspects of an assertion (oral or written) and receive relevant facts.

You would have noted that hearsay connotes not a quality, but a purpose.  You may repeat  a statement as many times as you choose, what matters is your purpose and to the relevance of the item.

A statement may be made for the following purposes:

 To establish the truth of what it states, if the evidence is adduced for the purpose of establishing or deconstructing the truth or falsity of the averment, (the truth or falsity of what was stated). It is hearsay and must be excluded: R v Sparks  (1969), R v Turner (1975) Q B 834.

Some other reasons: If the evidence is adduced to prove or emphasize the fact that such averment was made at all, it is not hearsay but a direct and an original evidence; Subramanian v Public Prosecutor (1956) I WLR 965: Mawaz Khan v The Queen (1967).

A statement made in a particular context may be performative and capable of affecting the state of another’s mind and subsequent conduct; Examples are words of incitement to commit crime; make or accept an offer in a contractual transaction. Such statements are excluded from the hearsay rule.

So also is a statement by an accused if it is for the purpose of explaining his or her answers to the police as well as his or her conduct when charged (Subramanian case) Woodhouse V Hall (1980)

• The Rule against Hearsay

The Evidence Act, 2011 Section 38: Hearsay rule stipulates expressly  that  “hearsay  evidence is not admissible except as provided for in the Evidence Act 2011 itself or by any other provisions of this or any other Act.

According to Section 126 (a-d) Evidence Act 2011, the general rule is that oral  evidence  must be direct; and except the content of documents, all facts may be proved by oral evidence. It provides as follows:

Subject to the provision of Part III of the Evidence Act (Relevance and Admissibility by certain evidence) oral evidence shall, in all cases, whatever, be direct if it refers to:

• a fact which could be seen, it must be the evidence of a witness who says he saw that fact.
• to a fact which could be heard, it must be the evidence of a witness, who says he heard that fact
• to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner
• if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person, who holds that opinion  on  those grounds.

The rule against hearsay consists in truth of two separate rules:

• The rule requiring evidence to be first hand: This rule demands that evidence must be given by the percipient, because of the risk of the evidence being altered as it passes from one witness or potential witness to another
• The rule requiring evidence to be given orally in court: This presupposes that evidence must be given in the witness box, because of the importance attached to the Oath and to giving the opposing party or parties the opportunity to cross examine

At common law, former statements of any person whether or not he is a witness in the proceedings, may not be given in evidence, if the purpose is to tender them as evidence of the truth of the matters asserted in them, unless they were made by a party or in certain circumstances by the agent of a party to those proceedings and constitute admissions of fact relevant to those proceedings. (Phipson 12 Ed. P 263).

This is identical with the hearsay rule in Nigeria. The rule is to the effect that: an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.

In  Utteh  v  State  (1992) 2 S C N J (Pt. I) 183,  the  Supreme  Court  of   Nigerian   quoted with approval the judgment of this Judicial Committee  of  the  Privy  Council  in Subramanian V Public Prosecutor, where the rule was expressed thus;

“Evidence of a statement made to a witness by a person, who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made”

• Assumption

Hearsay has been described in terms of “statement”. We have glossed over the term: “statement”. We have been guilty of false assumption that you know what a “statement” means. You should be careful always to guide against false assumptions? Be critical about terms.

What is a statement? – A statement is an assertion. What is an assertion? For the purpose of evidence, does a statement or assertion include?

• Any representation of fact or opinion made by a person by whatever means (including statement, non-statement, assertive, non-assertive etc)?
• Statement only: i.e. representation by words?
• Non-statement: representation made in a sketch, photo fix or other pictorial form
• Assertive statement: Intelligible and complete statement?
• Non-assertive: i.e. incomplete statement, non-statement like a pictorial form of statement, sketches, photo-fix, or greetings, commands or questions, which tend to have implied assertions?

These may be wider than the present scope of the term: statement for future development of Law of Evidence. What then is a ‘Statement’?

A statement is any representation of fact or  opinion  made  by a person  by whatever means; and may be assertive non-assertive or mixed. The English court has held that  hearsay statement identifying marks on article infringes the hearsay rule: Patel V Comptroller of Customs (1965). Compare also R v Brown (1991) and R v Rice (1963).

CONCLUSION

Hearsay are assertions of persons, who are not called as witnesses, made out of court in which they are being tendered for the purpose of proving the truth or falsity of the facts contained in the assertions (oral or written). In the law of Evidence hearsay is  not admissible. However, there are, as we shall see later some statutory exceptions. The Court also may, in exercise of its discretion, admit hearsay evidence if the court is satisfied that the interest shown by the party in the statement is probative, regardless of the truth of its content: R v LYDON, (1987), AND R V MCINTOSH (1992).

Problems, however may arise as to whether the process  of identifying  the  marks  on articles amounts to hearsay, . The answer may well depend on where it pleases the court to draw the boundaries of the term “statement”. Does it include both statement and non- statement, assertive and non-assertive?.

SUMMARY

In this unit, you learnt about the type of evidence, known as the hearsay evidence; and what the rule is. Section 37, Evidence Act, 2011 defines it as a statement; oral or written made otherwise than by a witness in a proceeding or contained or recorded in a book, document or any record whatever, proof of which is not admissible under the provisions of the Acts, which is tendered in evidence  for the purpose  of proving the truth of the matter stated in  it. You need to be careful about: False assumptions and be critical about language and terminologies. You are encouraged to make a practice of making your own examples of statements that would be caught by the hearsay rule. In the subsequent unit, you shall learn the exceptions to the general rule, which have either been developed by the courts or created by statutes.

ACTIVITY

Read the following cases:

• Subramanian v Public Prosecutor (1956), 965
• R v Turners (1975) 60 Cr App 80

TUTOR MARKED ASSIGNEMT

• Define Hearsay and state the rule against it
• Is hearsay rule justified or is it anachronism
• Based on your understanding, of R V Turner (1975) and Subramanian (1956), comment on the judgment of the Appellate court on the

REFERENCES

1. Allen C and Guest S (2004) Evidence, University of London.
2. Aguda , T. (2007) The Law of Evidence. Spectrum Law Series, Ibadan
3. Phipsons on Evidence 12th Ed
4. Afe, B. (2001) Law and Practice of Evidence in Nigeria