Define: Discretion To Admit Hearsay

The discretion to admit hearsay refers to the authority granted to judges to determine whether or not to allow certain out-of-court statements or evidence into trial proceedings, even though they typically would not be admissible due to hearsay rules. Hearsay is generally defined as an out-of-court statement offered in court to prove the truth of the matter asserted, and it is often considered unreliable because the original speaker cannot be cross-examined. However, there are exceptions and circumstances where hearsay evidence may be allowed at the discretion of the judge if it is deemed to be sufficiently reliable, necessary, or if it serves the interests of justice. Judges weigh factors such as the credibility of the statement, its relevance to the case, and whether there are other ways to present the evidence. This discretion aims to balance fairness and efficiency in legal proceedings while ensuring the reliability of evidence presented in court.

Until recently the criminal courts have had very little discretion to admit Hearsay evidence. If the evidence is not of a meta that is expressly allowed by one of the common law or statutory exceptions to the rule excluding hearsay, it is inadmissible. Of course, the courts have always asserted a right to exclude hearsay evidence that is technically admissible.

When the CJA_2003 comes into force (and it probably will have done so by the time you read this), s.114(1)(d) will give the courts a broad discretion to include hearsay evidence that would otherwise be inadmissible. s.114(2) sets out the factors the court should use in deciding whether to exercise this discretion. These factors are largely common sense. They include

1. the probative value of the evidence;
2. whether other evidence, perhaps more robust, is available to prove the same issue;
3. the circumstances in which the evidence was obtained and the reliability of the source;
4. the extent to which the evidence can be challenged, and how prejudicial it will be to the defendant if it cannot be.

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: 29th March 2024.