Hearsay evidence is, in general, not admissible in court.

Hearsay evidence is evidence of what some person, other than the witness, has said (on some other occasion), where the purpose of recounting what was said is to establish the truth of what was said (as opposed to the fact that it was said).

Some examples may illustrate this;

“The Defendant’s grandfather told me the Defendant was in Galway on the 1st April 2009, the day the burglary was committed in Grafton St., in Dublin.” – This is hearsay; the witness is intending to establish that the Defendant was in Galway and not in Dublin and, therefore that the Defendant is innocent.

“The salesman told me the car had done only 5,000 miles”. – This is not hearsay; the witness is intending to establish what the salesman told him, not to establish that it was true.

Why is hearsay evidence not admissible? Because it is unfair to admit it. If it is false evidence, by what means can the other party attack it or undermine it? Cross-examination will have little effect; the witness need only say, “…that’s what he said” in answer to questions suggesting that what was said was untrue.

There are exceptions to the rule, but a discussion of them here would be tiresome.

One example is sufficient; a witness may recount what a dying victim said to the witness – “ Jim stabbed me!”, for the purpose of establishing that that statement is evidence that it was, indeed, Jim who committed the crime and not somebody else.

(Jim being the victim’s husband).

This post is about Irish law; see HERE for material on English law.

Legal practitioners easily forget how arcane it is to do what they do. When the time comes they recognise one thing; giving evidence is intimidating.

It is intimidating even if the advocate asking them questions is inept and persists in making mistakes of various kinds (it happens).

Those mistakes may arise out of ignorance of the law of evidence and/or the necessary procedures to conform to that law.

Normally, the evidence for the Plaintiff is presented to the court first. The reason for this is that the burden of proof lies on the Plaintiff; he/she it is who is making allegations about the Defendant. The case is about those allegations, nothing else; (except where there is a counterclaim).

When all the evidence (from witnesses or otherwise) of the Plaintiff has been presented to the court, the Defendant will call his/her witnesses to rebut that evidence of the Plaintiff. That is, this will happen assuming the Plaintiff has made out a prima facie case. A prima facie case is one which, in the absence of rebuttal evidence from the Defendant, will entitle the Plaintiff to a verdict.

When a party calls a witness to give evidence, the advocate for that party is not permitted to “lead” the witness. That means that the questions put to the witness should not suggest the answer. Such questions are called “leading questions”. As a rough (but mistaken) rule of thumb, if the answer to the question is “yes” or “no”, the question is a leading question.

In practice, some leading questions are permitted. They are very useful to introduce non-controversial facts about the witness, for instance.

The examination of a witness by the advocate calling that witness is called “examination in chief”. It is more difficult to do this than it is to “cross-examine”. What the advocate must avoid doing, is to give the evidence himself/herself. A leading question has this effect; it suggests to the witness the evidence he/she should give.

Consequently, some witnesses struggle to answer questions in examination in chief, because they are surprised by the circumspect character of the questions. They come to life during the “cross-examination”.

“Cross-examination” is the process whereby the advocate for a party asks questions of the witness called by the other party. That advocate is not restrained in the form of the questions asked; leading questions are permitted. (Cross-examination is not bullying; bullying is not permitted).

To say that an advocate may ask leading questions is not to suggest that that, or any advocate, is completely free in the questions asked. Only relevant evidence is admissible in a trial; irrelevant evidence is inadmissible, therefore questions about irrelevancies are not permitted.

It is the job of the opposing advocate to ask the judge to disallow such questions. (Unless it is thought better to leave the opponent to drown in those irrelevancies).

Furthermore, it is the job of the Defendant’s advocate to, in due course, in cross-examination, give the Plaintiff’s witnesses an opportunity to comment on the case which the Defendant’s witness or witnesses will say in relation to the matters testified to by the Plaintiff’s witnesses. (The penalty for the Defendant if this does not happen can be severe).

When cross examination is finished the advocate who called the witness has a chance to ask further questions of the witness, but only to address new matters arising from cross-examination and requiring clarification.

The trial will proceed in this fashion with each witness being called and asked questions, first in examination in chief, then in cross-examination and then, maybe, in re-examination. Then the next witness is called.

The reason why cross-examination is so prominent in the mind of a witness is that the major purpose of those questions is to undermine the evidence given by the witness. This is not to say that that process will be successful; often it is not. In fact, cross-examination may “free” the witness to address the evidence again and deliver it more cogently and persuasively than first time around.

It’s easier to forget than to remember. If a witness has forgotten things it is permissible, sometimes, for the witness to check a written record of what has been forgotten. The most common occasion of this is when a police officer refreshes his/her memory from his/her notebook. This is permissible only if the written record is a record made contemporaneous with the events in respect of which the evidence is being given.

As Marcel Proust observed, memory is elusive. Sometimes the reading of the contemporaneous note is used simply to flesh out the recollection of the events recollected and recorded. This is termed “present recollection revived�?. Sometimes nothing is recollected but the record remains; it is in the handwriting of the witness, say. This can be referred to by the witness. The witness affirms his/her belief in the accuracy of the record and the court receives the record. This is called “past recollection recorded�?.

In D.P.P. v. Cliffford [2002] IEHC 81 (22 July 2002) the High Court addressed the issue of a witness referring to a notebook while giving evidence. The District Court judge had dismissed the charge against the accused because the Garda witness had been consulting his notebook while giving evidence. The judge took the view that the Garda should have requested permission of him, the judge, before doing this. In effect the judge excluded the evidence of the Garda because of this. The High Court found that this was wrong in law and effectively remitted the prosecution back to the District Court for hearing.

Giving evidence carries risk. A general medical practitioner may find s/he is asked whether the injury was to the ulna or the radius. If this causes the witness difficulty it is a demonstration of Murphy’s law. The ulna and the radius are bones in the arm. If your arm is broken you will in all likelihood be treated in a hospital. A hospital setting facilitates continued familiarity with the bony structure of the arm. In general medical practice detailed knowledge of human anatomy may recede with graduation and the conclusion of training. (It should not but it might, understandably.) So, patient X has a broken arm; it was treated in a hospital and the patient attends the general practitioner for prescription purposes. The doctor’s record of attendances and complaints are relevant.

If the doctor attends to give evidence (an unlikely event in Ireland in current times) s/he will consult with the lawyer of patient X before giving evidence. The discussion is about attendances and complaints. Nobody mentions the name of the bone that was broken. Its name is not relevant. Nevertheless, that very same lawyer is the person most likely to ask the question of the doctor; was it the ulna or the radius? The lawyer assumes the doctor knows and remembers everything related to the practice of medicine. This is obviously unreasonable but is a necessary assumption to, say, carry the lawyer through a series of questions that have not been properly considered by the lawyer.

The consequence is the (minor) embarrassment of the doctor, sitting exposed in the witness box, and revealed as not being able to distinguish the ulna from the radius.

What lawyer knows everything related to the practice of law? None.