Conceptual Versus Pragmatic Approaches to Hearsay
| Date | 01 March 1993 |
| Author | Rosemary Pattenden |
| Published date | 01 March 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb00952.x |
Zhe Modern Law Review
[Vol.
56
Conceptual Versus Pragmatic Approaches
to
Hearsay
Rosemary
Pattenden
*
[AJs
moral evidence they
may
be very cogent; yet does the law, more rigid and inflexible,
resist the weight
of
such moral evidence, although,
in
the ordinav transactions
of
life,
common
sense and experience might possibly yield to it.’
Introduction
English judges and lawyers pride themselves in their pragmatic approach to the law.
Yet this pragmatism is conspicuously absent from one of the most entrenched rules
of evidence
-
the hearsay rule. This requires a court to exclude any written or
oral statement not made in the course of the proceedings which is offered
m
evidence
of
the correctness
of
the
matter
asserted.
A
statement which is relevant independently
of the real intention of the speaker2 or the truth of what is stated3 is not adduced
for a testimonial purpose and is therefore outside the scope of the rule. The basis
of
the hearsay rule is supposedly the dangers which attach to the use
of
statements
not made by witnesses within the confines of the courtroom where the declarant
can be subjected to immediate cross-examination. However, when the question of
admitting an out-of-court assertion arises in a criminal trial, no attempt is ever made
to measure the real danger which the statement presents to the fact-finding process.
Instead the court concentrates on conceptual issues
-
is the statement being used
testimonially?
If
the answer is yes, does it fall within one of the narrow and inflexible
common law exceptions to the rule (all of which were created before the end of
the nineteenth century) or one of the more recent, but equally limited, statutory
exceptions to the rule.4 If the answer to the second question is no, the evidence
is automatically rejected. There is never any question of weighing the probative
value of the evidence against the risk of unreliability. In this article I argue that
the only justification for excluding hearsay evidence is the dangers which a particular
piece of hearsay evidence presents and that concentrating on conceptual distinctions
between assertions relied upon for their truth and assertions which are not relied
on for this purpose has produced irreconcilable lines of case law and has led to
the exclusion of evidence which, because of its probative value and reliability, should
have been admitted.
*Senior Lecturer in Law, University
of
East Anglia.
The author is grateful to Colin Tapper for reading the article and
for
making many helpful suggestions.
1
per
Vaughan
J,
Wright
v
Doe
d
Tarham
(1838)
4
Bing
489, 549; 132
ER
877, 900.
2
For
example, in a contract case a person is contractually bound if he makes an oral statement which
a reasonable man would regard as an acceptance of
a
proffered offer, even though he did not intend
by his words to accept the offer. See Tapper, ‘Hillmon Rediscovered and Lord St Leonards Resurrected’
(1990) 106
LQR
441,
445, 452.
3
For
example, a statement offered to prove that the declarant could speak
or
a statement which it
is
alleged is libellous. The distinction between ‘original’ and ‘testimonial’
use
of an.out-of-court statement
is not, however, absolute. The statement
‘I
am alive’ asserts and demonstrates the same thing.
4
See
Cross
on Evidence in Tapper (ed) (London: Butterworths, 7th ed) chap
XVII.
0
The Modern
Law
Review Limited
1993
(MLR
56:2,
March). Published by Blackwell
Publishers,
108
Cowley Road, Oxford
OX4
1JF
and
238
Main.Street, Cambiidge,
138
MA
02142,
USA.
March
19931
Conceptual Versus Pragmatic Approaches to Hearsay
A
The
Decision in
R
v
Kearley
There are many examples in the law reports of hearsay evidence which ought on
any pragmatic view to have been before the fa~t-finder,~ but which was not acted
upon because of an overly conceptual approach to hearsay. The case of
Myers
v
DPP6
which precipitated the first statutory exception to the hearsay rule for
criminal trials’ is notorious for this. To the list of decisions which confound
common sense must now be added the House of Lords’ ruling
R
v
KeurZey,s
which
will form the focus of this article. The police, who suspected that Kearley traded
in illegal drugs, raided his home. They found drugs hidden in a rabbit hutch, but
not in sufficient quantities to raise the inference that Kearley possessed drugs with
intent to supply, the offence with which he was charged. Whilst on the premises
the police intercepted fifteen telephone calls. Ten of the callers asked for the accused
and asked for drugs. In addition, nine people visited the premises, seven of whom
indicated that they wanted to purchase drugs. None of the callers or visitors appeared
as a witness at the trial. The prosecution proposed instead to call the police officers
with whom they had conversed to give evidence of what they had said. Those who
had requested drugs had done so in tetms which implied a belief that Kearley sold
drugs. The prosecution contended that this provided the necessary evidence that
the drugs found in Kearley’s possession were intended for sale and not for personal
use. To a layman this was undoubtedly potent evidence that Kearley was a drug
dealer. To a majority of their Lordships, however, the evidence of what the callers
believed was simply irrelevant. Had the evidence been relevant, it would still have
been excluded because it was hearsay. Lord Griffiths, who together with Lord
Browne-Wilkinson dissented, echoed the sentiments of Lord Justice Lloyd in the
Court of Appealg when he said:
[I]t is difficult to think
of
much more convincing evidence of his activity as a drug dealer
than customers constantly ringing his flat to buy drugs and a stream of customers beating
a path
to
his door for the same purpose.lo
To apply the rule against hearsay in the circumstances of a case such as
KeurZey:
hampers effective prosecution by excluding evidence which your Lordships all agree is highly
probative and, since it comes from the unprompted actions
of
the callers, is very creditworthy.
The hearsay rule can also operate to the detriment
of
the accused, as the decisions in
R
v
Harry
and
R
v
Blastland
both show.”
The prosecution is, if anything, less likely than the defence to be prejudiced by
a rule that implied verbal assertions are hearsay since any out-of-court statement
by the accused from which an incriminating fact can be inferred will be covered
by the confession exception to the hearsay rule.I2
5
There is a list in
Hearsay Evidence Proposal,
ALRC RP3 (Sydney,
1981) 40-43.
6 [1965]
AC
1001
(HL). The case is discussed in Ashworth and Pattenden, ‘Reliability, Hearsay and
7
Criminal Evidence Act
1965.
8 [1992] 2
All ER
345
(HL).
9 (1991) 93
Cr App R
222, 224.
10
ibid
p
348.
11
per
Lord Browne-Wilkinson,
op cit
n
8,
p
390.
12
Tapper, ‘Hearsay and Impljed Assertions’
(1992) 108
LQR
524.
the English Criminal Trial’
(1986) 102
LQR
292, 293.
0
The Modern
Law
Review Limited
1993
139
To continue reading
Request your trial