Experts and interpreters to be used in explaining certain writings. Of Two constructions, which preferred. Construction in favor of natural right. Interpretation according to usage. Witnesses ; their qualifications. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification.
Disqualification by reason of mental incapacity or immaturity. Disqualification by reason of marriage. Disqualification by reason of death or insanity of adverse party. Disqualification by reason of privileged communication. Parental and filial privilege.
Admission of a party. Offer of compromise not admissible. In criminal cases, except those involving quasi-offenses criminal negligence or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer. An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury.
Admission by third party. Admission by co-partner or agent. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. Admission by conspirator. Admission by privies. Admission by silence. Similar acts as evidence. Unaccepted offer. Testimony generally confined to personal knowledge ; hearsay excluded. Dying declaration. Declaration against interest. Act or declaration about pedigree. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives.
It embraces also facts of family history intimately connected with pedigree. Family reputation or tradition regarding pedigree. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree.
Common reputation. Monuments and inscriptions in public places may be received as evidence of common reputation. Part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. Entries in the course of business. Entries in official records. Commercial lists and the like. Learned treatises. Testimony or deposition at a former proceeding.
General rule. Opinion of expert witness. Opinion of ordinary witnesses. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person.
Character evidence not generally admissible ; exceptions : —. Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case. Burden of proof. Conclusive presumptions. Disputable presumptions. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years.
If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs:.
CA 44 SCRA Previous recognition of ownership in another by a party in possession of property in dispute is admission against interest which may be received even against third persons. Related Posts. Declaration against Interest PM. Part of the Res Gestae PM. Contact Form. LinkList ul li ul'. Tabify by Templateify v1. Optify by Templateify v1. Past statements pertaining to internal condition state of mind; amount of pain, etc.
Spontaneous or Contemporaneous Statements:. Often the courts will allow in a statement made concurrent with an event, especially if spontaneous. It was all my fault. Statements by Children or Victims of Elder Abuse:. In cases involving sex crimes or abuse or neglect cases as to children, hearsay by a child under the age of twelve either direct or in a police report who was a victim may be admitted in the discretion of the court.
Evidence Code Section also allows a hearsay exception for Penal Code Section Elder abuse cases if the person making the statement was over sixty-five years, dependent and either dead or disabled at the time the evidence is needed in court. Reputation Evidence:.
An exception may be available for statements about the family history and relationships of the person making the statement. Further, evidence of the general reputation in a community concerning an event that was of import to that community, and evidence of a person's general reputation or particular trait in his community may also be admissible. A typical example is a reputation for violence or drinking to excess if that issue is vital in the trial to prove that the person committed assault or drove under the influence.
This type of evidence is not viewed with favor by most judges who feel it is so prejudicial to a party that unless the evidence is overwhelming and of critical need in the trial it will be barred.
There are other less common exceptions to the hearsay rule and the Federal courts and each state have their own rules of evidence that apply to hearsay, but the above list is common to most. The courts have developed the rules of evidence over a four-hundred-year period, often with controversy, but always with a single goal: to have before the judge, jury or arbitrator evidence that is not pure statements of belief or opinion unless the person is an expert.
While many laypersons are frustrated by the rules, there is little question that it allows the parties to proceed with their cases without fear that testimony that they cannot possibly question or attack is entered into evidence.
If one studies the transcript of trials in authoritarian regimes one quickly notes that the ability to cross examine witnesses is seldom allowed the accused.
Such regimes recognize that the essence of effective defense is an objective trier of fact and the ability to present a vigorous and appropriate defense. Eliminate the ability to cross examine and you have gravely hampered effective representation. The Hearsay Rule is thus central to the proper operation of truth seeking in the courts. Founded in , our law firm combines the ability to represent clients in domestic or international matters with the personal interaction with clients that is traditional to a long established law firm.
Home articles hearsay evidence basics. Consequently, where the hearsay statement sought to be admitted is oral, it has to be proved by the testimony of the person who heard it and it is also necessary that the statement itself should be made from personal knowledge. Where the statement is written, personal knowledge on the part of the maker is also necessary but the authorship and authenticity of the document may be proved in the ordinary way.
The exclusion of second-hand hearsay which is, it should be noted, subject to some exceptions was justified as follows in the Thirteenth Report of the English Law Reform Committee, upon whose recommendations the Civil Evidence Act was based:. But where John gives evidence of what George said that William who alone had personal knowledge of the matter said, the honesty and accuracy of recollection of George is the necessary link in the chain upon which the probative value of.
William's statement depends. There was no way of estimating the strength of that link unless George is called as a witness. The Court thus lacks the material upon which to estimate the weight to be attached to William's statement as probative of the fact in issue.
Second-hand hearsay in the form of a written statement by John of what William, who was under no duty to report to John, had said to him about events that William said had occurred depends for its probative value not only upon the accuracy of John's report of what William had said to him but also upon the accuracy and veracity of William, who was under no duty to be either accurate or veracious and may have been reporting what he himself had heard.
To admit John's written statement as evidence of the fact stated to have been reported to him would open the door to the admission of all sorts of rumours and involve the risk of proliferation of hearsay evidence of minimal probative value. The New South Wales Law Reform Commission Report on the Rule against Hearsay , which is the most thorough modern survey of the subject, recommended that a more permissive attitude might be adopted towards multiple i. The dangers of misreading or inaccurate expression are much less; the temptation to exaggerate is less because of the greater risk of detection.
Accordingly, they proposed that certain documentary hearsay statements, whether first-hand or not, should be admissible in the same way as first-hand oral hearsay statements.
This would be inadmissible in England because it is second-hand oral hearsay but would be admissible as documentary hearsay of 'the second kind' under the New South Wales proposal. In support of the latter it was argued as follows:. A further justification is that the danger of errors arising through repetition is much less in the case of pure documentary hearsay, and less where the statement is made orally but thereafter a record is made of it and a member of a chain of records stemming from it is tendered.
The chain must not however be broken by oral retailing of hearsay, as where B tells C orally what A said orally or by letter and C writes to D. In this event, in our view, if the Court cannot hear the maker of the statement being cross-examined, and cannot hear B cross-examined as to his powers of hearing and comprehension, the evidence should be inadmissible This line is one which seems to us to be a practical one to draw.
There is, however, the serious practical difficulty about drawing a line at first hand hearsay that it will usually be impossible to establish independently that the maker of the out-of-court statement had personal knowledge of the facts asserted. The New South Wales Law Reform Commission recognised this problem and suggested that it should suffice if the maker is in a position to have personal knowledge.
The New South Wales Law Reform Commission suggested some further restrictions on the admissibility of hearsay to guard against manufactured evidence in criminal cases.
They recommended that statements in proofs of evidence taken for the purpose of indicating testimony which the declarant would be able to give in contemplated legal proceedings should not be generally admissible.
Proofs obtained by the prosecution will normally be obtained by skilled interrogators who are accustomed to converting jumbled and half-coherent answers into passages of connected prose. Whether or not there is any ill-will involved, and the desire of the police for witnesses to come up to proof will help to ensure that there is not, the utterances of an uncertain and perhaps unreliable declarant may be converted into an impressive, confident and internally self-consistent document.
If that declarant subsequently cannot testify, to admit the document may cause a miscarriage of justice. Report on the Rule against Hearsay , p. The manufacture of fabricated hearsay evidence on behalf of an accused has also been a cause of concern to reformers. The New South Wales Law Reform Commission followed the earlier Report of the English Criminal Law Revision Committee on Evidence General in recommending the exclusion of out-of-court statements made after the accused had been summoned, charged or informed that he might be prosecuted.
If hearsay were admitted without restriction, it would be possible to give evidence that some third person who has since conveniently disappeared called at the defendant's solicitor's office and confessed to the crime. The witness could not be cross-examined; and if it were alleged that his identity was unknown, the prosecution could not investigate whether he had a criminal record.
The jury, pressed with the rule that they must be satisfied of guilt beyond reasonable doubt, might be sufficiently impressed by such evidence to say that they had a doubt. The possibility of such manufactured evidence led the Committee to recommend that no hearsay statement should be admissible on the ground that the maker is abroad, unidentifiable or unfindable if the statement was made after the accused had.
If, on the other hand, he is dead or unable by virtue of his health to attend court, his statement would be admissible.
The difficulty about these or other proposals restricting the categories of hearsay evidence which are admissible is that there will inevitably be cases where valuable evidence is excluded.
Glanville Williams suggested the following illustration of where the exclusion of second-hand hearsay would cause injustice:.
B communicates it to C, the parson, just before she too dies. The information chimes exactly with X's alibi defence at the trial. Similarly excluded under both the latter two proposals would be a statement exculpating an accused made by a person who has since disappeared, perhaps because he has been intimidated by the real offender who remains at large.
But the New South Wales Law Reform Commission argued that the exclusion of such statements should be subject to the court's inclusionary discretion in exceptional cases. Criticising the proposal for automatic inadmissibility made by the English Criminal Law Revision Committee they said:. First, it will not really prevent manufactured evidence: if a declarant can be procured to lie, he can be procured to falsify the date on his statement.
Secondly, it will be harsh on the accused: he may have no power or persuasive capacity to prevent his witnesses disappearing, particularly if his trial is delayed. Thirdly, the prosecution is made better off than the accused, for statements taken before the accused is charged are more likely to be those of prosecution witnesses than of witnesses for the accused.
The possibilities of falsification are the same though no doubt for the accused the temptation is greater. Instead of a mandatory rule of exclusion we therefore propose that such statements only be admissible with the leave of the court.
Consequently, the New South Wales Law Reform Commission recommended that the court should have a more general inclusionary discretion to admit an inadmissible statement where there are reasonable grounds for thinking it may be reliable or where, in a criminal case, it tends to support the acquittal of an accused person.
The danger of such a complete abolition of the rule against hearsay is that mere rumour, the unsubstantiated statements of unidentified witnesses and much other evidence of little or no probative value would be let in.
This is probably not a real danger in civil cases or for the prosecution in criminal cases because confusion is unlikely to assist the party creating it. However, the defence in a criminal case may be. Report on the Rule against Hearsay pp. To guard against this, it is considered that the judge should have a discretion to exclude any out-of-court statement which is of insufficient probative value. The first safeguard is to make the admissibility of out-of-court statements conditional upon the maker or the person from whom the information derived, where the maker had not personal knowledge of the facts asserted, being called and subjected to cross-examination whenever he is available.
It cannot be taken for granted that a party will always desire his witnesses to testify in court because their statements are likely to carry more weight if they do so.
He may, for. Section 1 of the draft Bill proposed by the New South Wales Law Reform Commission in their Report on the Rule against Hearsay contains a fully worked-out provision along these lines. It reads To ensure that direct evidence of facts in dispute is given where it is available the English Civil Evidence Act requires advance notice of an out-of-court statement proposed to be tendered in evidence to be served on the opposing party who can, by counter-notice, require the maker of the statement to attend in court to give evidence.
If he does not attend, his evidence is admissible as of right only if he is dead or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or cannot with reasonable diligence be identified or found, or cannot be reasonably expected to have any recollection of matters relevant to the accuracy of the statement.
The court is, however, given a residual discretion to admit a particular item of hearsay evidence even where none of these pre-conditions is applicable to the maker of a statement or where no notice has been given of it. If the opposing party requires the attendance of a person unnecessarily he may be penalised in costs. There would be little inducement to parties to seek to use statements instead of oral evidence to prove any fact which was genuinely in dispute if the maker of the statement was available to be called.
To do so would, in effect, disclose the. Rules of Supreme Court , Ord. On the other hand, the sanction of costs in respect of an unnecessary counter-notice should prevent a party from insisting on the calling by his adversary of oral evidence of facts not genuinely in dispute. We attach considerable importance to this sanction and for this reason we have laid upon the party serving a counter-notice the onus of justifying it.
Where it is declared in the notice that the maker of the statement is dead or unfit to be called as a witness or abroad and unable to be found the adverse party will have an opportunity of making his own enquiries as to the accuracy of this declaration before the trial.
The system of notice and counter-notice may be criticised as cumbersome. The Ontario Law Reform Commission proposed that a statement otherwise inadmissible as hearsay should nevertheless be admissible as evidence of any fact stated therein of which direct evidence would be admissible:.
In the New South Wales Law Reform Commission recommended that an out-of-court statement of a declarant should be admissible as evidence of facts asserted if the declarant is called as a witness or the party tendering the statement has justification for not calling the declarant as a witness.
More restricted standards of justification were suggested for. These various solutions have been set out here in some detail because they illustrate an unanimity of view on the desirability of admitting the out-of-court statements of unavailable witnesses together with differences of approach as to the exact circumstances when a witness should be deemed to be unavailable.
Clearly no problem arises where the maker of a statement is dead. But, in cases where ill-health prevents his attendance in court, it is considered he should not be regarded as unavailable if it is possible to have him examined on commission or, in criminal cases, to take his evidence by way of sworn deposition under section 14 of the Criminal Procedure Act ; in either case the deponent may be cross-examined on his evidence by the other side.
The admission of the statements of unidentifiable or untraceable persons is more problematical. The English Criminal Bar Association, commenting on the recommendation of the Criminal Law Revision Committee that such statements should be admissible, cited as examples the case of a prosecution witness in an assault charge who states that immediately after the assault a man, whose name he knows but who has since disappeared, told him that it was the defendant who committed the assault; or conversely a defence witness who testifies that he was approached by a man, whose name he was unable to obtain, but whom he can describe, who told him that the defendant could not be guilty because.
Such evidence which is easily manufactured and cannot of its nature be tested might, argued the Bar Association, have a strong effect on lay magistrates or a jury. They were of opinion that no safeguards could be designed which would avoid these dangers or prevent the resulting injustice. Professor Sir Rupert Cross, who was a member of the Criminal Law Revision Committee which recommended that the out-of-court statements of unidentifiable and untraceable witnesses should be admissible in criminal cases, later conceded that their draft Bill may have gone too far in allowing the reception of such statements and suggested that these might be confined to res gestae cases.
The professionally trained district justices who try summary offences in Ireland should be less prone to the mistakes predicted for lay magistrates by the Criminal Bar Association in England. Cases may arise where a statement of an unidentifiable or untraceable person has probative value, especially in the context of the other evidence, and should be considered by the jury. Such a case was R. Gibson 18 Q. In the case of many records of undoubted reliability, the maker of an entry in the records may not be known.
It is conceivable that a person who has deliberately withheld his identity may have made a statement of genuine probative value. The treatment of the out-of-court statements of persons who do not testify and either do not have or could not be expected to have any recollection of the matters stated therein has varied in different jurisdictions.
Within a single jurisdiction differences occur as between civil and criminal cases. Thus such statements are admissible as of right under the English Civil Evidence Act but the draft Bill annexed to the subsequent Report of the Criminal Law. Report on Evidence , Draft Code, section 29 3. This Report p. Revision Committee has recommended admissibility in these circumstances only where the statement is part of a business record.
It may be considered futile to require witnesses to be called who cannot recollect the facts asserted in a statement made by them which it is sought to tender in evidence. To insist that persons involved in making a business record should testify whenever such a record has to be proved may be unduly burdensome, especially where the record is the result of information supplied by a number of persons.
However, the best evidence of a person's lack of recollection is his own testimony to that effect and ideally the other party should be entitled to require this to be given in court.
Observation of the demeanour of the maker of a statement may be helpful in assessing his reliability and examination of his habits as regards checking such statements may also be of value. On balance, it is considered that lack of recollection on the part of the maker of an out-of-court statement should not entitle a party to prove such a statement in evidence without calling the maker.
Special provision may be required, however, for statements in business records where information is supplied by a number of persons and there is other evidence as to the reliability of the system of record-keeping.
Another class of witness whose testimony is, in practice, unavailable are those who though competent and compellable, refuse to be sworn or to answer questions, once sworn. Such a refusal is most likely to arise in the context of a criminal trial where a witness who has made a statement is subject to intimidation and is prepared to risk punishment by the court rather than to testify.
The standard case is where a prosecution witness is 'got at' by the accused or his associates. It may also arise in the case of defence witnesses, especially where there are several accused and the statement exculpates one at the expense of another. Alternatively, a witness who has made a confession or an admission exculpating the accused may not be willing to repeat it in court.
It is far more likely that a witness will be unwilling to give evidence for reasons connected with his own dishonesty or the dishonesty of the case he is called to support, than that he is in fear.
Report on the Rule against Hearsay p. The Bar Association's contention that dishonesty and not intimidation is the most likely reason why a compellable witness would decline to testify and so lay himself open to punishment for contempt of court is not convincing. Even if it were, it would not follow that a party should be deprived of the use of that person's out-of-court statement in evidence. It is only where the party tendering the evidence was privy to the intimidation or dishonesty that there would be justification for keeping the evidence out.
It is considered therefore that the out-of-court statement of a person who, being competent and compellable, refuses to testify, should be admissible. In some of the proposals which have been considered, the maker of a statement is regarded as unavailable where he is outside the jurisdiction and a party is then entitled to tender the statement in evidence.
It may be doubted if the statement of a person who is abroad should be admitted at all unless it is impossible to obtain his testimony on commission or pursuant to a letter of request. The fact that it may be costly to secure. Rasbool v. See also Piermay Shipping Co. Chester [] 1 W. While it may appear arbitrary to draw a line according to whether the maker of a statement is in a country where he can be compelled to testify at the instance of an Irish court, this is, in fact, the true division between availability and unavailability of an unwilling witness.
It may be questioned if it is over-rigid to exclude an out-of-court statement of a person whom it is unduly costly to call as a witness, especially where the facts asserted are of marginal importance or are not seriously disputed.
The New South Wales Law Reform Commission recommended that it should be permissible to tender in evidence in civil cases an out-of-court statement of such a witness without calling him as a witness. It is considered that the problem of costly witnesses is best met by permitting the reception of out-of-court statements by agreement and the extension of the power of the courts to admit evidence taken on commission and statements on affidavit.
As depositions under the Criminal Procedure Act. Report on the Rule against Hearsay , Bill, section 62 3 d. Rules of the Supreme Court , Ord. The Supreme Court Practice , p. At present the facility for taking evidence on commission is not really effective to avoid expense as the parties and their lawyers are entitled to attend such a hearing. This would necessitate the amendment of the relevant Rule of Court. It should also be permissible to receive evidence on affidavit in the absence of a deponent where his presence would involve undue expense or inconvenience.
However, it is considered that statements on affidavit should only be admissible for this reason when made from personal knowledge. These powers to admit evidence taken on commission and statements on affidavit are likely to be of particular importance in proceedings in the lower courts where criminal charges are less serious and the amounts involved in civil cases are small.
The existing procedure by which one party may call on another to admit a specific fact under pain of having to pay the costs if the refusal is unreasonable, should, it is considered, be extended to District Court proceedings. The second safeguard recommended to prevent a proliferation of evidence of negligible value is a requirement that an out-of-court statement of an unavailable person should be proved by the best available evidence.
Thus an oral statement should be proved by a witness who heard it, if one is available, and a statement in a document should be proved by production of the original document if this is available. Basic to their scheme was the distinction between an immediate and a remote record in section 61 of their draft Bill which reads:.
See Report on the Rule against Hearsay , pp. It is considered that such elaboration would not be necessary in legislation not restricting the categories of out-of-court statements which are admissible and it would be preferable to provide in general terms that an out-of-court statement must be proved by the best available evidence.
The third safeguard is that advance notice should be given of any out-of-court statement which it is proposed to tender in evidence. The English Criminal Law Revision Committee, while recommending a notice procedure for out-of-court statements in trials on indictment suggested that there should be no similar requirement for summary trials.
Report on Evidence , Evidence Code , section 29 4. Report on the Law of Evidence , pp. Eleventh Report , op. In this way the actual hearing will be simplified. A requirement of notice is likely to cause hardship only where there are unrepresented litigants. This latter case can be met by adjourning proceedings whenever the other side may be prejudiced by the reception of out-of-court statements of which no notice has been given. There was also the danger that a party who has to give notice of a hearsay statement might find that the other side's witnesses tailor their case to meet it.
One difficulty which may arise with the requirement of notice under present procedures in civil cases should be noted. It may be impossible to give notice because a witness. In prosecutions on indictment such a witness may be compelled to give evidence on deposition before the trial under section 7 of the Criminal Procedure Act but there is no similar procedure in summary trials or civil litigation. This already gives rise to problems in any case where a party to litigation has to rely on the testimony of or documents in the possession of a third person who is not well-disposed or who is under pressure not to seem to co-operate.
In their Third Interim Report submitted in the Committee on Court Practice and Procedure recommended that a witness who has refused to give a statement of evidence to the party approaching him should be compellable by order of the court to furnish it in the form of a sworn statement if he has refused to give an ordinary statement in the first instance.
Unless some provision along these lines is made, it may be difficult to insist on the requirement of notice in cases where the refusal of a prospective witness to give an account of an out-of-court statement of another person or to produce a document prevents adequate notice from being given. In such a case the only satisfactory solution may be to grant an adjournment but this could increase costs and would be unworkable in jury trials.
It is common practice to admit hearsay evidence if the other party does not object. There is some doubt as to whether this is in accordance with the law. To cover the case of unrepresented persons or failure to object by legal advisers, the court should have discretion to exclude an inadmissible out-of-court statement to which no objection is raised.
In framing legislation it will be necessary to decide whether the provisions applying to out-of-court statements should extend beyond express assertions to implied assertions i. In several codes, e. But these are codes which prohibit hearsay generally. Where out-of-court statements are generally admissible, albeit. The New South Wales Law Reform Commission recommended a provision making admissible an out-of-court statement not objected to.
But they included in the draft Bill annexed to their Report a sub-section saving the existing situation in criminal cases whereby an unrepresented accused person who does not object may still appeal against the admission of inadmissible evidence, and a represented accused person may do so in some circumstances. An example of the second kind of implied assertion would be provided by a case in which it is sought to show that X was dead at a particular time by calling a witness to swear that he saw a doctor cause X's body to be placed on a mortuary van after examining him at that time.
Cross on Evidence , pp. It is considered that out-of-court statements should be defined to include conduct which is intended to be assertive and all statements, whether or not they are intended to be assertive.
But there is no reason why conduct not intended to be assertive should be treated differently from other circumstantial evidence and regarded as a statement. In certain cases, corroboration is required as a matter of law.
In addition, there are a number of cases where there is a rule of practice that the judge must warn the jury of the danger of acting on uncorroborated evidence and, where there is no jury, the tribunal must warn itself of this danger.
However, subject to giving such a warning they may, in such cases, act on the evidence despite the absence of corroboration. The most important of these are cases where it is sought to sustain a conviction on the uncorroborated evidence of an accomplice or of a child. It should be noted that New South Wales Law Reform Commission rejected the view that a distinction should be drawn between statements not intended to be assertive and conduct not intended to be assertive for the purposes of the hearsay rule.
Corroboration is a separate item of evidence implicating the person against whom the testimony is given in relation to the matter concerning which corroboration is necessary. Of its nature it must necessarily be extraneous to the witness whose evidence is to be corroborated.
It is established that a person's own out-of-court statement cannot constitute corroboration of his testimony. The English Civil Evidence Act section 6 4 has made specific provision to this effect. But nothing is said in that statute about the case where an out-of-court statement of another person is tendered to corroborate the testimony of the witness who narrates it.
However, the Ontario Law Reform Commission in their Report on the Law of Evidence included the following provision in the draft Evidence Act which they proposed
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