Hearsay: Identification and Admissions
| Author | Simon Cooper |
| Published date | 01 October 2002 |
| Date | 01 October 2002 |
| DOI | http://doi.org/10.1177/002201830206600510 |
| Subject Matter | Article |
Hearsay:
Identification
and
Admissions
Simon Cooper*
Abstract
This article seeks to explore
the
relationship
between
identifica-
tion evidence
and
the
rule against hearsay evidence.
It
focuses on
how
the
courts have ignored or sought to evade application of
the
rule
and
con-
cludes by examining arecent decision of
the
Court of Appeal that illus-
trates
the
lengths
that
courts will resort to in order to admit evidence
perceived as being reliable.
The Review of
the
Criminal Courts of England
and
wales' included
amongst its recommendations
that
further consideration be given to
reform of
the
rule against hearsay evidence, moving away from a rule of
inadmissibility, to trusting fact-finders to assess
the
weight of
the
evidence.
Some developments seem to
show
that
the
courts have already
decided to proceed in the spirit of the recommendation by resorting to
rather
doubtful reasoning in order to secure
the
admission of evidence
that
appears to be possessed of reliability, whereas the technicalities of
the
hearsay rule would dictate exclusion.
One area of the law of evidence
that
has always appeared trouble-
some is
that
of identification evidence
and
its relationship with the
hearsay rule and, together with aspects of
the
law relating to admissions,
that
is the area this article intends
to
explore.
History
The origins of
the
hearsay rule can be traced back to
the
eighteenth
century
and
the most celebrated definition is 'a
statement
other
than
one
made by a person while giving oral evidence in the proceedings as
evidence of
any
fact stated'.' One purpose of
the
rule is to prevent a
witness from giving oral or written evidence of a statement made by
another
if
the
purpose of allowing
that
evidence is
to
prove
that
the
other's
statement
was true. So, if Whears X say
'It
was D
who
attacked
me', it would infringe the hearsay rule if Wwere to give oral testimony
of X's statement for
the
purpose of proving
that
Dattacked X.
It
matters
not
how
reliable Wappears,
and
indeed, even if all parties accept
that
W
is
the
most reliable
and
credible of witnesses, the testimony would still
be hearsay and, unless
one
of the exceptions
that
permits hearsay
to
be
admitted could be found, W's evidence would have to be excluded. Auld
LJ stated in his report:
It
is
common
ground
that
the
present
law is unsatisfactory
and
needs
reform.
It
is complicated, unprincipled
and
arbitrary in
the
application of a
*University of Newcastle.
Iwww.crirninal-courts-rcvicw.org.uk/ccr.htlll
2 C. Tapper. Cross
and
Tapper on Evidence,
9th
edn
(Buuerworths:
London,
1999) 530.
459
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