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Different countries have different rules regarding hearsay evidence, with common law legal systems having codified historical exceptions. Some jurisdictions have expanded or narrowed the list of exceptions, while others rely on a case-by-case application of discretion. The US recognizes at least 30 exceptions, while England and Wales allow hearsay in civil cases and limited circumstances in criminal cases. Canada uses a justice interests test to decide whether to admit hearsay evidence. Witness testimony should be based on direct knowledge to ensure fairness.
Hearsay exceptions are certain extraordinary circumstances that will allow out-of-court statements made by a party who is not present in court to be admitted as evidence on the testimony of a third party. Each country treats hearsay evidence differently. Most countries with a common law legal system have codified exceptions that were available historically. Some jurisdictions have substantially expanded the list of common law hearsay exceptions, while others have narrowed the list to a handful. Still others have abolished the use of a specific list of exceptions in favor of a test that weighs the interests of justice to determine whether hearsay evidence should be admitted.
Witnessing in court cases is subject to certain basic rules of fairness. One such rule is that a witness should only testify on matters of which he has direct knowledge. This allows the other party to directly challenge him on her memory and veracity. A witness testifying about something told to him by another party who is not present to speak and be cross-examined presents hearsay, which is normally excluded from evidence.
Under the common law there were some exceptions which allowed hearsay to be admitted as evidence. Countries with common law legal systems have codified many of the historical exceptions with today’s modifications. Some countries have discarded the notion of exceptions altogether and now rely on a case-by-case application of discretion by the judge.
The United States, for example, recognizes at least 30 hearsay exceptions through the use of its Federal Rules of Evidence. Those exceptions are categorized into cases where the original witness is available to come to court but is not in court, and cases where he or she is completely unavailable. In the first circumstance, statements made suddenly, without pausing to consider, are an exception. The court held that these types of statements have inherent reliability due to the unplanned nature of the presentation and should not be cross-examined. Hearsay exceptions for unavailable witnesses include statements made when there is no inherent self-interest in lying.
In England and Wales, hearsay is permissible in civil cases, but only under certain circumstances in criminal cases. These countries have only three statutory hearsay exceptions, but still recognize many of the common law exceptions. The court will also allow hearsay if both parties agree or if it will serve the interests of justice to allow evidence to enter. Canada, by comparison, has eliminated specific adherence to common law exceptions and instead relies on the justice interests test deciding whether or not to admit hearsay as evidence.
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