Hearsay and Confrontation in Criminal Trials

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

6
Statutory Exceptions to the Hearsay Rule

In this Chapter we shall examine a number of statutory provisions which have the effect of rendering admissible, in criminal trials on indictment, evidence which might otherwise be hearsay. Of these provisions, arguably the most important are those contained in Part II of the Criminal Justice Act 1988.1 Statutory reform of the hearsay rule in the criminal sphere has been piecemeal, and there is nothing approaching the fundamental statutory reform encapsulated in the Civil Evidence Act 1968. The provisions examined below are largely self-explanatory, and thus the aim here is not to provide a detailed description of their operation, but rather to draw attention to any relevant interpretations of the provisions in case law, as well as to highlight possible difficulties with the provisions and to assess whether the goal of ensuring the admissibility of reliable evidence, especially reliable documentary evidence, has been achieved.


CRIMINAL JUSTICE ACT 1988, PART II

At the heart of Part II of the Criminal Justice Act 19882 are sections 23 and 24, which deal respectively with first-hand documentary hearsay and with hearsay in trade, business, and related documents. It is to be noted that these provisions do not affect the admissibility of hearsay evidence which is already admissible otherwise than by virtue of these provisions.3 It is also provided that where the same expressions are used in Part II of the Criminal Justice Act 1988 as in Part II of the Civil Evidence Act 1968, these expressions are to be construed in accordance with section 10 of the latter Act.4 The Court of Appeal has emphasized 'the need for very great caution

____________________
1
For the history of this, see Sir R. Cross and C. Tapper, Cross on Evidence ( 7th edn., 1990), 628; J. R. Spencer and R. H. Flin, The Evidence of Children: The Law and the Psychology ( 2nd edn., 1993), 134.
2
See the useful flow chart provided in ibid.138. For a general discussion, see J. R. Spencer, "'Orality and the Evidence of Absent Witnesses'" [ 1994] Criminal Law Review628.
3
S. 28(1)(a).
4
Sch. 2, para. 5.

-143-

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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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