Practising Safe Hearsay: Surrender May Be Inevitable, but Shouldn't We Take Precautions?

AuthorPeter Murphy
Published date01 July 1997
DOI10.1177/136571279700100301
Date01 July 1997
Subject MatterArticle
Practising safe hearsay:
surrender
may
be
inevitable, but
s
ho u
I
d
n’t
we take precautions?
By
Professor Peter
Murphy
MA,
LLB
(Cantab)
Professor of
Law,
South
Texas College of
Law,
Houston’
n his article
Hearsay: The road
to
reform
published in
Volume
1.
Number
2.
Peter Murphy examined
developments in the law of hearsay prior to the
publication of the English
Law
Commission’s Consultation
Paper, ‘Evidence in Criminal Proceedings: Hearsay and Related
Topics’. In the present article Professor Murphy continues his
theme by critically examining the
Law
Commission’s proposals.
He concludes that there remains a need for vigilance in relation
to the admission of hearsay evidence in criminal proceedings
and offers statutory provisions which would guard against some
of the dangers inherent in such evidence.
Part
1:
Recommended safeguards
for
mitten hearsay
1.
Written
hearsay
generally
What safeguards are realistically required for written and oral hearsay
statements admitted against the accused in a criminal case? This author
would differentiate between written and oral hearsay, and would first
propose the following enactment to govern the admissibility of written
hearsay in criminal cases.
(1)
In criminal proceedings, hearsay evidence in written
or
other
permanent form shall be admissible if it
is
reliable, as provided by
subsection
(2)
below.
1
Peter Murphy is a member
of
the Bars
of
England. California and Texas.
He
is the author
of
Murphy
on
Evidence
and Editor-inthief
of
Blackstone’s
Criminal
Practice.
THE
INTERNATIONAL
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105
PRACTISING
SAFE
HEARSAY
(2)
Hearsay evidence in written or other permanent form shall be
regarded as reliable if it is proved to the satisfaction of the court
-
(a) that the declarant can be identified with precision; and
(b) that the evidence was created and maintained in the routine
course of activities for the purpose of which accuracy in transmitting and
recording information would ordinarily be important, and the facts stated
therein which are proposed to be proved were transmitted and recorded in
the routine course of those activities; and
(c) that there is no reason to believe that either the declarant or any
other person involved in supplying, transmitting or recording the facts
stated in the evidence and proposed to be proved had any motive to
fabricate, exaggerate or conceal any fact relevant to the proceedings
(whether contained in the evidence tendered or not).
(3)
This section does not apply to hearsay evidence which consists of
statements made in preparation for or in contemplation of existing
or
anticipated criminal proceedings.
It
is submitted that, in contrast to the case of oral hearsay, the requirement of
unavailability may be dispensed with in relation to written hearsay. In many
cases, the testimony of the declarant would be of little or no value, because
the maker of a routine document, which may
be
one of thousands of similar
documents made over a period of time. is unlikely to have any useful memory
of it. The confusion over the question of who should be regarded as the maker
of a written statement may be a function of trying to make an unnecessary
provision work. This does not mean, however, that there should be no
safeguard. The true safeguard in these cases should be a searching inquiry
into reliability.
It is widely accepted that much written hearsay is reliable, and this has been
used as ajustification for its admissibility in many instances. At common law,
public documents, which were thought to be the most reliable kind of
document, constituted an exception to the hearsay rule. In the United States,
as outlined above, reliability has also been an important factor in creating
exceptions to the rule.
A
study of the rationale for admitting public documents is very instructive.
All documentary hearsay can be analysed as involving the supplying.
transmission and eventual recording of information along what may be
termed a line of communication, which may be illustrated graphically as
follows:
Supplier of information-Intermediaries-Compiler
106
THE INTERNATIONAL
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