Hearsay: Gateways, Procedure and Safety: Introduction

Hearsay is a rule about what a communication is being used to prove, not a label for everything said or written outside court. A statement may be admissible for one purpose but inadmissible for another. The central question is whether the court is being asked to accept a person's earlier assertion as evidence that the asserted matter is true, without receiving that assertion as oral evidence in these proceedings.

Where this chapter fits. Investigation produces statements, recordings and records; disclosure makes relevant material available to the other side; neither step makes everything in that material admissible. This chapter belongs after the investigation and disclosure chapters and before trial preparation is complete. Read it alongside Confessions and Exclusion of Prosecution Evidence: a confession has its own rules and is not simply an ordinary witness statement. Later, the chapters on witnesses and trial procedure explain how admitted evidence is presented, challenged and evaluated.

The vocabulary you need. To adduce or tender evidence means to put it before the court. The maker is the person who made the representation, not necessarily the person who recorded or now repeats it. A gateway is a legal route permitting admission if its conditions are satisfied. Admissibility asks whether the court may receive the evidence for a particular purpose. Weight asks how persuasive it is. Credibility concerns whether the source should be believed; reliability also includes accurate perception, memory and transmission. The fact-finder is the jury, or the magistrates or judge deciding the facts in a trial without a jury.

The principal statutory framework is the Criminal Justice Act 2003, abbreviated below to CJA 2003, sections 114–136. The Criminal Procedure Rules, abbreviated to CrimPR, govern notice and applications. The rules below concern criminal proceedings in England and Wales, not the different treatment of hearsay in civil proceedings.