Law Reform Commission of Ireland Paper on Hearsay Evidence

Earlier this week, the Law Reform Commission of Ireland released a consultation paper on hearsay evidence in civil and criminal cases:

"The law of evidence concerning hearsay refers to any testimony given by a witness about words spoken or a document generated out of court by another person who is not produced in court as a witness, where the testimony is presented to prove the truth of what is asserted in the words or document involved."

"A key principle in the law of evidence – which has primarily been developed by court decisions rather than legislation – is that, in general, to be admissible the evidence must be relevant. Another key principle is that, in general, evidence should be capable of being tested in court, especially by cross-examination. Hearsay evidence, which can often pass the relevance test, cannot usually be tested by cross-examination, and so the traditional approach of the law of evidence is that hearsay should not be admissible in evidence."

"A large number of exceptions allowing hearsay to be admitted in evidence have been developed over the years by the courts, and in legislation, because it has been accepted that excluding all hearsay would be unjust."

The Commission is submitting a number of proposals for consultation, including the following:

• in civil cases, hearsay should in general be admissible in evidence, subject to certain conditions, notably the need to give advance notice, and a discretion by a court to exclude hearsay if it would be prejudicial or misleading;
• in criminal cases, hearsay should continue in general to be inadmissible in evidence, subject to existing exceptions allowing hearsay to be admissible;
• the rules on hearsay in civil and criminal cases should be set out in legislation.

The report provides some interesting historical background about the hearsay rule, and also looks at the divergent approaches adopted by courts in other jurisdictions, such as England, Scotland, Canada, the United States, Australia and New Zealand.