File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Hearsay Evidence And Its Exception, Comparative Analysis With Other Legal Systems

This research paper explores the concept of hearsay evidence, and its exceptions, and conducts a comparative analysis with various legal systems. Hearsay evidence, often considered problematic due to its potential lack of reliability, is a pervasive issue in legal proceedings globally. This paper delves into the nature of hearsay evidence, the rationale behind the hearsay rule, and the exceptions developed within different legal systems to admit such evidence under specific circumstances.

This research highlights the intricacies and disparities in the treatment of hearsay evidence across many countries by performing a comparative analysis of how various legal systems address it. Because this balance is influenced by cultural, historical, and procedural factors, the management of hearsay evidence is a complex and subtle aspect of the legal system.

Evidence law, a part of the legal system, controls how facts are established in a court of law by prescribing standards and appropriate applications. Since its inception (when there was little to no distinction between civil and criminal matters or between fact and law, with the burden of proof resting on the accused to prove otherwise), this law has significantly evolved in the legal systems around the world, concentrating mostly on the admissibility and sufficiency of said evidence. How evidence should be handled in trials and other legal procedures in India is governed by the Indian Evidence Act of 1872.[1]

In legal proceedings, evidence plays a pivotal role in establishing facts and Evidence is important in any case as it helps validate judgment. One critical aspect of evidence is hearsay evidence. "Hearsay evidence refers to statements made by individuals outside of the courtroom, which are presented in court to prove the truth of the matter asserted in those statements."

Hearsay evidence is a fundamental concept in legal systems worldwide, representing a statement made by someone outside of a court proceeding and offered in court to establish the truth of the matter asserted in the statement. The phrase "hearsay" indicates that this information has not been personally heard. Any information obtained from a source who has firsthand knowledge of a fact or piece of information is considered hearsay evidence.

So, We might consider it as "a piece of second-hand information". The word "hearsay" comprises two words 'hear' and 'say' which define a testimony based not on direct communications but on what a witness may have heard others say over an out-of-court conversation. In simple words, evidence that is given by a person who was heard from another person is hearsay.

Hearsay evidence poses a particular challenge in legal proceedings because it lacks the essential safeguards of direct testimony. The person who made the statement is typically not present in court for cross-examination, making it difficult to assess the statement's credibility and reliability.

Different legal systems, including common law systems, civil law systems, Islamic legal systems, and hybrid systems, regard hearsay evidence differently. Each of these systems has its intricacies and techniques. While civil law systems tend to be more rigid and Islamic law permits some flexibility in some circumstances, common law jurisdictions offer a wide range of rules and exceptions.

Hearsay evidence is subject to certain regulations in international criminal tribunals. The admissibility of hearsay evidence necessitates a careful balancing act between maintaining a fair trial and allowing pertinent information into the courtroom in every instance.

"However several exceptions to the hearsay rule have been devised by legal systems, allowing hearsay evidence to be admitted in certain situations." These exemptions are intended to permit the admission of testimony that is regarded as reliable or required for the sake of justice.

Business records, among others, impassioned remarks, declarations made while dying, and present sense perceptions are examples of common exceptions. To achieve this, my research paper will consist of four parts that deal with the meaning of hearsay evidence, its exceptions, and a comparative analysis of hearsay evidence with other legal systems.

Hearsay Evidence In The Common Law Systems:

The hearsay rule in common law jurisdictions is a fundamental principle of evidence law that governs the admissibility of statements made outside the courtroom to prove the truth of the matter asserted in those statements. In essence, it prohibits the use of such statements as evidence during trial unless they fall within recognized exceptions. "Hearsay evidence is a testimony based on what a witness has heard from another person, of which he has no personal knowledge or experience." The hearsay rule's guiding idea is that hearsay testimony is typically inadmissible.

Due to the absence of key reliability protections, most notably the chance to cross-examine the declarant (the individual who made the out-of-court statement), courts disregard this type of evidence. Hearsay is any statement, whether spoken or written, presented to verify the veracity of the claim made in the statement by a party who is not a party to the current trial or hearing.

It is essentially a claim made outside of the court that is presented as proof in court. The rationale behind the hearsay rule is to ensure the reliability and fairness of evidence presented in court. Cross-examination is a crucial tool for testing the credibility and accuracy of statements, and its absence from hearsay statements raises concerns about their trustworthiness.

Some exceptions to the Hearsay Rule:

Common law jurisdictions have developed a range of exceptions to the hearsay rule, allowing hearsay evidence to be admitted in certain circumstances where it is considered more reliable or necessary for justice. Some common exceptions include:
  • Dying Declaration: Statements made by a person who believes they are about to die and has no hope of recovery.
  • Excited Utterance: Statements made under the influence of a startling event or emotional state.
  • Present Sense Impression: Statements describing or explaining an event while the declarant is perceiving it.
  • Statement Against Interest: Statements that are against the declarant's interests.
  • Business Records: Records made and kept in the regular course of business.
  • Former Testimony: Statements made during prior legal proceedings when the declarant is unavailable for the current trial.
  • Statements of Family History: Statements concerning the declarant's family-related matters.

Case Studies Illustrating the Application of Hearsay Exceptions in Common Law Systems:
  • Crawford v. Washington (2004)[2]: The key question in this case is that the Sixth Amendment's confrontation provision ensures an accused person's ability to face potential witnesses. It was debated whether the defendant's right to face the witness was infringed upon by the admission of a recorded statement the defendant's wife-who did not testify at trial-made to the police. The inclusion of the wife's statement, according to the Supreme Court, violated the defendant's rights under the confrontation clause. This ruling highlighted that hearsay testimony, particularly remarks given to law enforcement, must pass tougher scrutiny and that the defendant had the right to question his accuser in cross-examination.
  • R v. Smith (2001): The issue of this case is that the defendant was charged with murder, and a witness testified about the victim's dying words. The defendant argued that these statements should not be admitted as hearsay evidence. The House of Lords stated that the dying declaration exception applied. The court emphasized the reliability of such statements and their historic acceptance in common law. The dying declaration exception was upheld, allowing the victim's statements to be admitted as evidence.[3]

Hearsay Evidence In Civil Law Systems:

Hearsay evidence in civil law systems is generally treated differently than in common law jurisdictions. Civil law systems tend to have stricter rules regarding the admissibility of hearsay evidence, with a strong emphasis on direct testimony and documentary evidence.

The hearsay rule, which states that hearsay evidence is normally not admissible, is typically applied more rigidly in civil law systems. The main issue is that the declarant cannot be cross-examined, which raises questions about her probable lack of veracity. The use of written records and documentation is crucial in civil law systems. As evidence, it is preferred to use official records and authenticated documents, which must be thorough and trustworthy.

Civil law systems may accept hearsay evidence in some situations provided it satisfies certain requirements, even though this evidence is generally prohibited. On the other hand, compared to common law jurisdictions, the bar for admissibility of hearsay is often greater.

In systems of civil law, direct witness testimony is frequently emphasized. Instead of depending on secondhand knowledge, courts prefer witnesses to testify about events they encountered or observed. For some types of comments that are thought to be fundamentally reliable, some civil law systems have created exceptions to the hearsay rule. These could be, like the common law exceptions, pronouncements made while dying, or impulsive utterances made under pressure.

It's important to note that civil law systems can vary significantly among different countries, and not all civil law jurisdictions treat hearsay evidence in the same way. Some countries within civil law systems may have more flexible approaches to hearsay, especially if they have adopted reforms or adapted elements from common law practices.

Reason For Not Admitting Hearsay As Evidence Under Indian Evidence Act:

The Indian Evidence Act does not use the phrase "hearsay" because it is quite ambiguous and has multiple meanings. However, the Act's Section 60 [4]specifies the overarching idea that underlies the rule. According to the law, "Oral evidence must always be direct, that is, if it refers to a fact that could have been seen, it must be the testimony of a witness who says he saw it; if it refers to a fact that could have been heard, it must be the testimony of a witness who says he heard it."

Hearsay evidence is not the observation of a person's bodily senses but what he learned respecting the fact through the medium of a third person is inadmissible in evidence as a general rule. [5] Under the Indian Evidence Act, hearsay evidence is generally not admitted as evidence for several important reasons:
  • Lack of Opportunity for Cross-Examination: Hearsay evidence typically lacks the essential feature of cross-examination. Cross-examination is a fundamental component of the adversarial legal system, allowing the opposing party to question the credibility, reliability, and motives of the person making the statement. Hearsay evidence does not provide this opportunity, which can significantly undermine the reliability of evidence.
  • Risk of Misinformation and Inaccuracy: Hearsay evidence relies on information passed from one person to another, and there is a higher risk of error, distortion, or misunderstanding as the statement is relayed. Without the ability to directly question the declarant, it is difficult to ascertain the accuracy of the statement.
  • Preservation of Fairness: The Indian Evidence Act is designed to ensure a fair and just trial. Allowing hearsay evidence without proper safeguards could unfairly prejudice one party, as they would not have the opportunity to challenge the credibility of the statement or the person who made it.
  • Maintaining Integrity of the Court Process: Admitting hearsay evidence can compromise the integrity of the court process. Courts are tasked with determining the truth and justice for a matter, and hearsay evidence can introduce unnecessary uncertainty and unreliability into the proceedings.
  • Preventing Manipulation and Fabrication: The exclusion of hearsay evidence helps prevent manipulation and fabrication of evidence. Allowing hearsay could incentivize parties to create or manipulate statements in an attempt to influence the outcome of a case without facing the scrutiny of cross-examination.

The Indian Evidence Act's exclusion of hearsay evidence is rooted in the principles of fairness, reliability, and the need to maintain the integrity of the legal process. The Act aims to ensure that evidence presented in court is as accurate and credible as possible by favoring direct evidence and providing limited exceptions for hearsay evidence when it meets specific criteria.

Landmark Cases Of Hearsay Evidence:

  • Giles v California (2008)[6]: In the 2008 Supreme Court decision Giles v. California, the issue of hearsay evidence of domestic abuse in the case of Brenda Avie's murder by her ex-boyfriend Dwayne Giles was taken into account. Giles claimed that he had acted in self-defense during the trial. According to testimony accepted by the trial court, Avie told police before she passed away that Giles had threatened her.
  • R v. Horncastle (2009)[7]: There were several defendants in this case who were accused of murder. The key piece of evidence against them was a witness's testimony, who later passed away and did not appear at the trial. The House of Lords (now the Supreme Court) decided that the testimony of the deceased witness was admissible in court on the common law principle of "forfeiture by wrongdoing." The court ruled that a defendant loses the ability to object to the admission of hearsay testimony from a witness when their conduct prevents them from testifying.
The complicated nature of this essential concept of evidence law is made clear via hearsay evidence, its exceptions, and comparative study across many legal systems. While it can be useful in illuminating important facts, hearsay evidence also bears the inherent dangers of unreliability, which offers a dilemma in the search for truth and justice. Its admissibility in a case will depend on circumstantial facts.

This essay has compared and contrasted how common law and civil law use hearsay testimony, noting both similarities and differences. Comparatively, these legal systems showcase the intricacies of adapting hearsay evidence to varying cultural, historical, and procedural contexts.

Common law's adversarial approach, civil law's inquisitorial nature, and Islamic law's unique considerations demonstrate the diversity of legal traditions. In the end, this research has shed light on how legal systems all over the world deal with hearsay evidence, underlining the significance of finding a delicate balance between the protection of rights and the pursuit of justice.

  1. Aditi Singh, 'Rule of Hearsay under Indian Evidence Act' (Lexforti, 27th September 2020) - accessed on 10th September 2023
  2. Crawford v. Washington [2004] 541 U.S. 36
  3. R v. Smith [2001] 1 AC 146
  4. Indian Evidence Act 1872, s 60.
  5. Deepak, 'What is 'Hearsay Evidence'? Why is such evidence generally not admitted? State the exceptions, if any.' -, March 2023 - Accessed on 12th September 2023
  6. Giles v California [2008] 554 US 353
  7. R v. Horncastle [2009] UKSC 14

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly