|Part of the common law series|
|Types of evidence|
|Testimony · Documentary evidence|
|Physical evidence · Digital evidence|
|Exculpatory evidence · Scientific evidence|
|Demonstrative evidence · Real evidence|
|Eyewitness identification · DNA · Lies|
|Burden of proof · Laying a foundation|
|Subsequent remedial measure|
|Character evidence · Habit evidence|
|Similar fact evidence|
|Chain of custody|
|Judicial notice · Best evidence rule|
|Competence · Privilege|
|Direct examination · Cross-examination|
|Impeachment · Recorded recollection|
|Expert witness · Dead man statute|
|Hearsay (and its exceptions)|
|Hearsay: in U. The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive "Testify" redirects here For other uses see Testify (disambiguation and Testimony (disambiguation. Documentary evidence is any evidence introduced at a trial in the form of Documents. Physical evidence is any evidence introduced in a trialin the form of a physical object intended to prove a fact in issue based on its demonstrable physical characteristics Digital evidence or electronic evidence is any probative information stored or transmitted in Digital form that a party to a Court case may use at Exculpatory evidence is the evidence favorable to the Defendant in a criminal trial, which clears or tends to clear the defendant of Guilt. This article is about the legal concept For scientific evidence in pure science see Scientific evidence. Demonstrative evidence is evidence in the form of a Representation of an object Real evidence is a type of Physical evidence and consists of objects that were involved in a case or actually played a part in the incident or transaction in question Eyewitness identification evidence is the leading cause of Wrongful conviction in the United States Lies, on their own are not sufficient evidence of a crime However Lies may indicate that the defendant knows he is guilty and the prosecution may rely on the fact that the Relevance, in the Common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case or to have Probative Burden of proof (onus probandi is the obligation to prove Allegations which are presented in a Legal action. In Law, a foundation is sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in A subsequent remedial measure is a term used in the Law of evidence in the United States to describe an improvement or repair taken following an injury Character evidence is a term used in the Law of evidence to describe any testimony or document submitted for the purpose of proving that a person acted in a particular Habit evidence is a term used in the Law of evidence in the United States to describe any evidence submitted for the purpose of proving that a person In the law of Evidence, similar fact evidence (or the similar fact principle) establishes the conditions under which factual evidence of past misconduct of accused Authentication, in the Law of evidence, is the process by which Documentary evidence and other Physical evidence is proven to be genuine and Chain of custody refers to the chronological documentation and/or Paper trail, showing the seizure custody control transfer analysis and disposition of Evidence Judicial Notice is a rule in the Law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it The best evidence rule is a Common law rule of evidence which can be traced back at least as far as the 18th century A self-authenticating document, under the Law of evidence in the United States, is any Document that can be admitted into evidence at a trial An ancient document, in the Law of evidence, refers to both a means of authentication for a piece of Documentary evidence, and an exception to the A witness is someone who has firsthand knowledge about a Crime or dramatic event through their Senses (e In American law competence concerns the mental capacity of an individual to participate in legal proceedings Under Common law, privilege is a term describing a number of rules excluding evidence that would be adverse to a fundamental principle or relationship if it were disclosed The Direct Examination is a crucial part of the case Direct examination (also called examination in chief is the questioning of a witness by the party who called him or her in a See Structure of policy debate for cross-examination in Policy debate. Witness impeachment, in the Law of evidence, is the process of calling into question the credibility of an individual who is testifying in a trial. A recorded recollection, in the Law of evidence, is an exception to the Hearsay rule which allows a witness to testify to the accuracy of a recording or An expert witness is a Witness, who by virtue of Education, Training, Skill, or Experience, is believed to have Knowledge A dead man statute is a statute designed to prevent Perjury in a Civil case by prohibiting a witness who is an interested party from testifying about communications K. law · in U.S. law|
|Confessions · Business records|
|Excited utterance · Dying declaration|
|Party admission · Ancient document|
|Declarations against interest|
|Present sense impression · Res gestae|
|Learned treatise · Implied assertion|
|Other areas of the common law|
|Contract law · Tort law · Property law|
|Wills and Trusts · Criminal law|
The rules of hearsay began to form properly in the late seventeenth century and had become fully established by the early nineteenth century. The issues were analysed in substantial detail in Wright v Doe d Tatham. The technical nature of the discussion in Doe d Tatham inhibited much reasoned progress of the law, whose progress (in the form of judicial capacity to reform it) ended not long afterwards.  Later attempts to reform through the common law it got little further, with Lord Reid in Myers v DPP saying
"If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations; that must be left to legislation: and if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of parts of the existing law of hearsay susceptible of similar treatment, . . . The only satisfactory solution is by legislation following on a wide survey of the whole field . . . A policy of make do and mend is not appropriate. "
There was some statutory reform in the nineteenth century (see Bankers' Books Evidence Act), and later the Evidence Act 1938 made some further if cautious reforms. The state of the hearsay rules were regarded as 'absurd' by Lord Reid and Lord Diplock. 
The Criminal Justice Act 2003 ("2003 Act"), which went into force on 4 April 2005, introduced significant reforms to the hearsay rule, implementing (with modifications) the report by the Law Commission in Evidence in Criminal Proceedings: Hearsay and Related Topics (LC245), published on 19 June 1997. The Criminal Justice Act 2003 (2003 c44 is a wide ranging Act of Parliament introduced to modernise many areas of the Criminal justice system in England A Law Commission, or Law Reform Commission, is an independent body set up by a government to consider the state of laws in a jurisdiction and make recommendations on those Events 1179 - The Norwegian Battle of Kalvskinnet outside Nidaros. Year 1997 ( MCMXCVII) was a Common year starting on Wednesday (link will display full 1997 Gregorian calendar Previously, the Criminal Justice Act 1988 had carved out exceptions to the hearsay rule for unavailable witnesses and business documents. These were consolidated into the 2003 Act. See: WikiCrimeLine Hearsay evidence
The reasoning process behind the hearsay rule can be seen by comparing the acceptance of direct evidence and hearsay. In adducing direct evidence (that is, recollection of a witness in court) the court will consider how he would have perceived the event at the time, potential ambiguities and the witness's sincerity. These can be tested in cross-examination. A hearsay statement may duplicate each of these uncertainties (firstly for the absent original witness, secondly for the one in court), and cross-examination of the original witness is impossible.
Although the rule is directed only at references to statements asserted for the truth of their contents, the courts were alive to the dangers of circumstantial as well as direct evidence: 
"the hearsay rule operates in two ways: (a) it forbids using the credit of an absent declarant as the basis of an inference, and (b) it forbids using in the same way the mere evidentiary fact of the statement as having been made under such and such circumstances. "
The nature of the genuine danger of allowing a jury to make an inappropriate inference about the nature of such evidence has sometime led to misunderstandings about the nature of hearsay. 
A different rationale can be found in the requirement of justice that the accused is entitled to face his or her opponents. This principle finds support in the European Convention on Human Rights (articles 6(1) and 6(3)(d)) and, in the United States the sixth amendment of its Constitution (its principles tracing back to Raleigh's Trial). The Convention for the Protection of Human Rights and Fundamental Freedoms (also called the "European Convention on Human Rights" and "ECHR" was adopted under the The Sixth Amendment of the United States Constitution sets forth rights related to criminal prosecutions in federal courts
Hearsay is generally admissible in civil proceedings. 
The law concerning hearsay in civil proceedings was reformed substantially by the Civil Evidence Act 1995 ("the 1995 Act") and is now primarily upon upon a statutory footing. The Act arose from a report of the Law Commission published in 1993 which criticised the previous reforming statutes' excessive caution and cumbersome procedures. Section 1 of the Act says
"In civil proceedings evidence shall not be excluded on the ground that it is hearsay"
This includes hearsay of multiple degree (that is, hearsay evidence of hearsay evidence: for example "Jack told me that Jill told him that she went up the hill").
Other provisions of the 1995 Act preserve common law rules relating to public documents, published works of a public nature and public records.  The common law in respect of good and bad character, reputation or family tradition is also preserved. 
The Act moves some of the focus of hearsay evidence to weight, rather than admissibility, setting out considerations in assessing the evidence (set out in summary form):
The Criminal Justice Act 2003 defines hearsay as statements "not made in oral evidence in the proceedings" being used "as evidence of any matter stated". The Criminal Justice Act 2003 (2003 c44 is a wide ranging Act of Parliament introduced to modernise many areas of the Criminal justice system in England 
Evidence of a witness may be read in court if he or she is unavailable to attend court. 
In order to be admissible, the evidence referred to would have to have been otherwise admissible, and maker of the statement identified to the court's satisfaction. Additionally, the absent person making the original statement must fall within one of five categories:
In the case of absence through fear, some additional safeguards are impose prior to the statement's admission. The court must be satisfied it is in the interests of justice, particularly considering the statements contents, whether special measures (screens in court, or video live-link) would assist, and any unfairness to the defendant in not being able to challenge the evidence.
A party to the proceedings (that is, either the prosecution or defence) who causes any of the above five conditions to occur in order to stop a witness giving evidence cannot then adduce the hearsay evidence of it.
The scope of this rule has undergone consideration in cases when much of the prosecution case involves evidence by a witness who is absent from court. In Luca v Italy it was held that a conviction solely or decisively based upon evidence of witnesses which the accused has had no opportunity to examine breached Article 6 of the Convention (right to a fair trial). The Convention for the Protection of Human Rights and Fundamental Freedoms (also called the "European Convention on Human Rights" and "ECHR" was adopted under the However in R v Arnold it was said this rule would permit of some exceptions, otherwise it would provide a licence to intimidate witnesses - though neither should it be treated as a licence for prosecutors to prevent testing of their case. Each application had to be weighed carefully.
Documents created in the course of a trade, occupation, profession or public office (referred to as "business") can be used as evidence of the facts stated therein. 
To be admissible, the evidence referred to in the document must itself be admissible. The person supplying the information must have had personal knowledge of it (or be reasonably supposed to have had), and everyone else through whom the information was supplied must have also been acting in the course of business.
If the business information was produced in the course of a domestic criminal investigation, then either one of the above five categories (for absent witnesses) must apply, or the person producing the statement cannot be expected now to have any recollection of the original information. A typical example of this is doctor's notes in relation to an injured person, which is then adduced as medical evidence in a criminal trial. Previous criminal records can be adduced (if otherwise admissible) under this section, but not normally any further details about the method of commission, unless it can be demonstrated that the data inputter had the appropriate personal knowledge. 
Sometimes during the testimony of a witness, the witness may be questioned about statements he previously made outside court on an earlier occasion, to demonstrate either that he has been consistent or inconsistent in his account of events. "Testify" redirects here For other uses see Testify (disambiguation and Testimony (disambiguation. The Act did not change the circumstances in which such statements could become admissible in evidence (which are still prescribed in the Criminal Procedure Act 1865), but it did change the evidential effect of such statements once admitted. Formerly, such statements were not evidence of the facts stated in them (unless the witness agreed with them in court): they only proved that the witness had kept his story straight or had changed his story, and so were only evidence of his credibility (or lack of it) as a witness. They were not hearsay. Under the 2003 Act, however, such statements are now themselves evidence of any facts stated in them, not just of credibility, and so are now hearsay.
Section 118 of the 2003 Act preserved the following common law rules and abolished the remainder:
Hearsay evidence is permitted by agreement between all parties in the proceedings.  No such provision existed before the coming into force of the 2003 Act.
There are some older cases which threw the rigidities of the hearsay rule into sharp relief. In Sparks v R a U. S. airman was accused of indecently assaulting a girl just under the age of four. Evidence that the four year old victim (who did not give evidence herself) had told her mother "it was a coloured boy" was held not to be admissible (not being res gestae either) against the defendant, who was white. In R v Blastland the House of Lords held in a murder case that highly self-incriminating remarks made by a third party, not at the trial, could not admitted in evidence (the remarks mentioning the murder of a boy whose body had not yet been independently discovered).
Under the 2003 Act, any hearsay evidence whether or not covered by another provision may be admitted by the court if it is "in the interests of justice" to do so.  This provision is sometimes known as the "safety valve".
The Act sets out criteria in determining whether the interests of justice test are met though other considerations can be taken into account: