Define: Common Law Exceptions To The Hearsay Rule

Common law exceptions to the hearsay rule are circumstances where hearsay evidence, or out-of-court statements offered to prove the truth of the matter asserted, may be admitted in court despite generally being considered unreliable.

Common law exceptions to the hearsay rule are circumstances where certain out-of-court statements may be admitted as evidence in court despite being hearsay. These exceptions typically arise when the statements possess particular indicia of reliability or trustworthiness, making them more probative than prejudicial. Common exceptions include:

• Dying declarations: statements made by a declarant who believes their death is imminent, regarding the cause or circumstances leading to their impending death.
• Present sense impression: statements describing or explaining an event or condition made while or immediately after the declarant perceived it.
• Excited utterances: statements made spontaneously or under the influence of a startling event, reflecting the declarant’s emotional state at the time.
• Declarations against interest: Statements made by a declarant that are against their own interest, with a reasonable expectation of adverse consequences, suggest their trustworthiness.
• Statements for medical diagnosis or treatment: statements made by a declarant for the purpose of medical diagnosis or treatment, describing their medical history, symptoms, or past injuries.
• Recorded recollections: A memorandum or record of a witness’s statement when the witness once had personal knowledge of the matter but now has insufficient recollection to testify fully and accurately.

These exceptions aim to balance the need for reliable evidence with the principles of fairness and justice in legal proceedings, allowing certain hearsay statements to be admitted under specific circumstances where they are deemed sufficiently trustworthy and probative.

Although the general principle is that Hearsay evidence is inadmissible to prove the facts it expresses, over the years, the courts have developed a number of exceptions. Although the CJA (2003) makes some radical changes to the law regarding hearsay, it expressly preserves (s. 118) many of these common law exceptions, including the following:

• A public document or record (see Admissibility of public documents and records)
• A Res gestae utterance (which now has a statutory definition);
• A Confession;
• The body of expertise drawn upon by an expert witness
• Hearsay evidence of a person’s reputation
• A statement made by a party to a common criminal enterprise
• Certain trivial matters, such as evidence of name and address

Note that merely being listed in s.118 does not make the evidence admissible; it must still satisfy the common law rules on admissibility. However, not being listed in s.118 118 makes it definitive that a particular piece of hearsay evidence is not admissible on common law principles. Some common-law exceptions have not preserved by s.118. One is the Dying Declaration. Such a declaration would now be prima facie admissible under s.116(2)(a) as an oral statement made by a person who is unable to give evidence in person on account of his being dead. However, at common law, a statement made against a persons own (pecuniary) interest was admissible in certain circumstances; there appears to be no equivalent in the new Act.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 10th April 2024.