Hearsay and Confrontation in Criminal Trials

By Andrew L.-T. Choo | Go to book overview

works (such as a standard medical text dealing with the nature of a disease221) may be admissible in evidence under this exception. Dictionaries222 may also be offered as evidence of the meaning of English words.


STATEMENTS MADE IN FORMER PROCEEDINGS

The main area of application of the common law principles on statements made in former proceedings is in relation to transcripts of evidence. Such transcripts are admissible in evidence223 on the same (or substantially the same) issue in subsequent proceedings between the same parties (or those in privity with them), provided that the transcripts are appropriately authenticated (for example, 'by calling the shorthand writer who took the original note'224), and the witness in question was subject to cross- examination and is now dead or too ill225 to attend the subsequent proceedings or has been kept out of the way by the other party. The mere fact that the witness is outside the jurisdiction or cannot be found would appear not to suffice.226 The Court of Appeal has held227 that, even where admissible in evidence, transcripts of previous testimony may be excluded in the discretion of the trial judge if it would be unfair to the accused to admit the evidence. 'It may be that the absence of opportunity to observe the demeanour of the witness could be a powerful factor to be taken into account in considering the exercise of such discretion.' It was also emphasized that this particular exclusionary discretion was available in respect of prosecution evidence only--a rare recognition that evidential principles need not apply equally to both parties in a criminal trial.


CONCLUSION

It has been seen in this Chapter that the formally recognized situations in which what may otherwise be hearsay evidence can be admitted at common law are many and varied. Exceptions to the hearsay rule are often justified on the basis that evidence admitted under these exceptions is likely to be reliable. However, just as application of the hearsay rule per se may result in

____________________
221
McCarthy v. The Melita (Owners) ( 1923) 16 BWCC 222.
222
e.g., a law dictionary ( Marchioness of Blandford v. Dowager Duchess of Marlborough ( 1743) 2 Atk. 542, 26 ER 725); Fowler Modern English Usage ( R. v. Minister of Agriculture and Fisheries, ex p. Graham [ 1955] 2 QB 140).
223
Cf. US Federal Rules of Evidence, rule 804(b)(1).
224
R. v. Hall [ 1973] QB 496, 504 per Forbes J.
225
R. v. Thompson [ 1982] QB 647.
226
R. v. Scaife ( 1851) 5 Cox CC 243. Cf. R. v. Ward ( 1848) 2 Car. & K. 759, 760; 175 ER 319.
227
R. v. Hall [ 1973] QB 496, 504-5 per Forbes J.

-141-

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Hearsay and Confrontation in Criminal Trials
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction v
  • Preface vii
  • Contents ix
  • Table of Cases xi
  • Table of Statutory Material xxii
  • 1 - The Rule Against Hearsay in Criminal Trials 1
  • 2 - The Rationales for the Rule 11
  • Conclusion 42
  • 3 - The Hearsay Rule in Operation (and Inoperation) 44
  • Conclusion 73
  • 4 - Implied Assertions 74
  • Conclusion 100
  • 5 - Common Law Exceptions to the Hearsay Rule 102
  • Conclusion 141
  • 6 - Statutory Exceptions to the Hearsay Rule 143
  • 7 - Reform Options 163
  • 8 - Conclusion 192
  • Appendix A: United States Federal Rules of Evidence 201
  • Appendix B: Evidence Act 1995 (Commonwealth of Australia) 207
  • Appendix C: Law Commission Consultation Paper--Suggestions for Reform 214
  • Bibliography 217
  • Index 231
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