In general, the rules of evidence prevent hearsay from being allowed because the information cannot be verified. Neither the prosecution nor the defence can question the person who allegedly made the statement to determine what it meant. In Sri Lanka, hearsay evidence is generally not allowed. However, the Evidence Ordinance provides for certain exceptions such as res gestae (recognised under Article 6) and common intention (recognised under Article 10) as well as other exceptions in Articles 17 to 39. Other exceptions are provided for in case law (see Subramaniam v. DPP  1 WLR 956 (PC)). Previous court decisions or documents should also be admissible, even if they concern absent witnesses. It is also possible to admit the prior testimony of an unavailable witness; However, the judge may not authorize it in the absence of a report. Courts sometimes allow confessions to be obtained as evidence, even hearsay, because the fact that the witness is saying something that is contrary to his or her own interests lends weight to the validity of hearsay testimony. A confession is a statement by a litigant that goes against its interests, while a statement against interests is a statement purportedly made by an impartial witness. The issue of hearsay evidence is all over the news as presidential impeachment hearings continue. In fact, lawmakers, the president, and media pundits point out that the hearing uses hearsay/second-hand evidence to show that the process is irredeemably flawed. For example, President Trump`s allies have stated: The rules of evidence also provide for numerous exceptions that allow for the authorization of hearsay.
The Federal Rules of Evidence (FRE) define 23 such exceptions. States may have their own rules, but they generally agree with those of the ERF. For example, to prove that Tom was in town, the lawyer asks a witness, “What did Susan tell you Tom was in town?” Since the witness`s response is based on an out-of-court statement by Susan, the answer is hearsay when Susan is not available for cross-examination. One of the reasons for the objection is that the person who made the statement is not in court and is therefore protected from cross-examination. Note, however, that if the lawyer asking the same question is not trying to prove the truth of the claim that Tom is in town, but the fact that Susan said the specific words, this may be acceptable. For example, it would be acceptable to ask a witness what Susan told him about Tom in a defamation case against Susan, because the witness is now being questioned about the opposing party`s testimony, which is a verbal act.   If you are facing a criminal case, there may be several pieces of evidence that the government relies on for your case. However, this does not mean that the evidence is admissible in court. An experienced defense attorney can challenge questionable evidence, such as hearsay statements, and help you prepare your strongest defense. Article 1380 of the Code of Evidence also allows an exception to hearsay for elder abuse cases under article 368 of the Criminal Code if the person giving testimony was over sixty-five years of age, was a dependant, and was dead or disabled when evidence is required in court.
In a broader sense, “hearsay” is testimony or document that quotes people who are not present in court. If the named person is not present, it becomes impossible to establish his credibility, as does cross-examination. Therefore, hearsay evidence is inadmissible. An extrajudicial statement may be presented as evidence if the purpose is not to prove the veracity of the extrajudicial statement, but to prove what was directly heard or seen. This is not hearsay. An example: I have to show that someone was angry to prove their intention to attack. A witness saw him swear and claimed that the victim was a thief and a liar and that he would show him what the resulted. Since the purpose of the evidence is not to prove whether the victim was a thief or not, but to show the state of mind (anger) of the person making the statement, it would be admitted into evidence. Section 116 of the Criminal Justice Act 2003 provides that if a witness is not available, hearsay is admissible if: (a) the person concerned is dead; (b) the person concerned is not fit to give evidence because of his or her physical or mental condition; (c) the person concerned is outside the United Kingdom and it is not reasonably possible to ensure his or her presence; (d) the person concerned cannot be found; (e) Out of fear, the person concerned does not give oral evidence during the proceedings and the court admits such testimony as evidence.
However, if the context or content of the question or policy suggests that it is to be understood as an “allegation” and is offered to prove the truth of the alleged question, then the question or policy should be considered a statement subject to hearsay rules. See, for example, State v. McQueen, 324 N.C. 118 (1989) (the question posed to the accused by a companion – “Don`t you remember killing a state soldier?” – was impermissible hearsay, since it was proposed to prove the truth of the alleged thing, namely that the accused had no memory of the murder); State v. Marlow, 334 N.C. 273 (1993) (“Evidently, Horton`s verbal assertion that he told Howell not to return. Stay away`, hearsay referred to in Article 801(a). Hearsay evidence is not admissible in court unless a law or rule provides otherwise. Therefore, even if a statement is truly hearsay, it may still qualify if an exception applies. The Federal Rules of Evidence (FRE) contain nearly thirty of these exceptions to the provision of hearsay evidence. In court and other court proceedings, the court admits evidence that helps prove the case in some way, but not if it is unfair or prejudicial to both parties.
Admitting evidence is a balancing act, and legal minds (let alone politicians and experts) cannot agree on what is allowed. The goal is to examine the totality of the circumstances and arrive at the truth in one way or another.