THE HEARSAY RULE IN EVIDENCE

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1.0, INTRODUCTION It is a general rule that, the second hand or hearsay evidence is not admissible in the court of law. However, it has been argued that law is about peoples’ lives and as such, it has been consistently changing to keep pace with socio-economic development taking place in our societies. Under this fact, this general rule therefore, should not totally forestall importance of hearsay evidence. Some flexibility is required in its application especially when the dangers the rule seeks to prevent are not present or are reasonably negligible in the circumstances of a given case. 

 2.0, DEFINITION OF TERMS

 Many jurists have made attempts to define the concept hearsay with considerable diversity of approaches and opinions. According to Taylor , the term hearsay is used with reference of what is done or written as when a fact is spoken and in its legal sense, it denotes that the kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also in part on the veracity and competence of declarant. However, in Cross in Evidence , two approaches have been taken to make the meaning more clearer. According to him, definitions of hearsay are usually either assertion-centered or declarant-centered. Under assertion-centered definition, an out-of –court statement is hearsay when it is offered in evidence to prove the truth of the matter asserted. Under declarant-centred definition, an out-of-court statement is hearsay when it depends upon credibility of the declarant. The above definitions can best be emphasized by the following illustration: One ‘D’ says that ‘C’ told me that he (C) saw ‘B’ causing death of ‘A’. Here the statement of ‘C’ is direct evidence as he himself saw the occurrence and it is admissible under Section 62 of The Evidence Act . The statement by ‘D’ is second hand or derivative or hearsay evidence. Hence it is assertion-centered if it is offered to prove factum probandum, that is “murder”. On the other hand it is declarant-centered because it requires reliance on D’s powers of memory, perception and narration of what he heard from ‘C’. Taking into account the ambit and scope of the above definitions, I venture to summarize hearsay in the following terms: It is the evidence –in which a witness repeats what another person heard, saw or perceived. It is sometimes called second hand information or statement.

 2.1, RATIONALE FOR NOT ADMITTING HEARSAY. It always is desirable in the interest of justice to get the person whose statement is relied upon into court for his examination in a regular way. This saves the fact that, many possible dangers prevented in evidence can be best brought into light and exposed if they exists. It is therefore general rule that hearsay evidence should be excluded on the following grounds; That, being out-of-court statement, it can not be cross-examined; that it is not delivered under oath, that, demeanor (the physical appearance of the maker) can not be seen to construe evidence of a little weight. And that, the person putting the fact before the court is immune from all sorts of penalties of falsehood. Since the court is denied an opportunity to test the above crucial elements, as they are important to assess an accused person hence hearsay evidence is generally excluded, unless there are special circumstances. The above discussed tests are meant to remove the dangers which if otherwise swallowed as they are, inference can be drawn from incredible base. These dangers which are actually the hearsay rule seeks to prevent are ambiguity, insincerity, erroneous memory and faulty perception. It is, I think, helpful to categorize these dangers or obstacles into two groups, a ambiguity and insincerity to represent the head of the person responsible for the act or utterance, that is original declarant. These dangers, I think, help the Trier to see what the utterer was really thinking when the act occurred, that is her or his belief in what his or her act or assertion suggests. This appears perhaps that, fact should not be drawn from uncertain or incredible circumstances such as total darkness and, or a statement should not be merely given without sincerity as to its truthfulness. I think, in ignoring these two dangers, the court must come to a wrong inference. On the second link is the erroneous memory and faulty perception. These representing the head of the person testifying in court, that is, witness. These represents the witness’s credit since a witness may as well fail to remember actual sign or statements of the declarant. Going by the above analysis, in order for the court to make just inference, it must first remove declarant’s belief that is ambiguity and sincerity and witness’s obstacle, that is erroneous memory and false perception. I can conclude this part by words of Cross (supra) that, credit of absent declarant should not be based upon as basis of inference, because they are free from the test of significant credits of the maker through cross – examination.

 3.0, APPLICATION OF HEARSAY RULE INFLEXIBLY. In other words, this is circumstances under which the hearsay general rule is strictly applied. It means where the exception to the general rule are falling far short of removing the foregoing dangers, the general rule must be applied strictly. This happened in the case of R vs. HASSAN JUMANNE , the court held that, “The provisions of S. 34B (2) of the Evidence Act are cumulative, therefore to admit a statement in evidence under this Section, all the conditions set forth from paragraphs (a) to (f) must be satisfied”. In this case, only paragraph (a) and (b) were satisfied hence the hearsay statement was inadmissible. It is undisputed here that the said section is one of the areas of exceptions to the hearsay rule, and again it is my opinion that here the judge applied the rule inflexibly since all conditions from (a) to (f) are rarely satisfied. In the case of RAMESH RAJPUT vs. MRS. SUNANDA RAJPUT , the Court of Appeal had the following to say, “…that the counter affidavit of defendant should not be looked at as it was pure hearsay having been sworn to by her advocate”. From these words, it is manifestly clear to me that, the honorable court treated this document with the view that it was lacking sincerity of the defendant. This position was again cemented by the same court in the case of JUMUIYA YA WAFANYAKAZI SHINYANGA vs. SHINYANGA REGIONAL COOPERATIVE UNION when the court said inter alia that an affidavit is essentially a substitute for oral evidence and should only contain statements of fact and circumstances. It must not contain extraneous matters. Another relevant observation was made by Sisya, J. in the case of R vs. MOHAMMED SHEDAFA AND 3 OTHERS , the judge said that, “The test of cross-examination may be wholly wanting,; the particulars of the violence may have occurred under circumstances of confusion and surprise calculated to prevent being accurately observed”. It appears to me here that, the honorable was keen with the circumstances under which the fact in issue (violence) were drown. It means that if the source of information is vague, surrounded with confusion and surprise, the declarant may be easily succumbed with these situations and come out with incorrect views. To make it more clearer, the judge continued to say, “The mere fact that the deceased consistently made a precise and substantially identical statements on several occasions is not evidence that such statements are accurate, but only that the deceased was consistent in his belief that the accused has assaulted him”. This emphasis reminds me that rule of evidence that “nothing is to be received which is not logically probative”. This is the fact that, the danger of relying solely on a credit of an absent declarant is not only that the declarant may have been uncertain or actually lying in his statement, but also sincerely believe his statement to be true and yet, in fact have been mistaken. At this juncture, I can wind up this part with the words of Lord Thayer, who once said, in his famous dictum that, “The hearsay rule operates in two ways; (1) it forbids using credit of an absent as the basis of an inference and (2) it forbids using in the same way the mere evidentially fact of the statement or having been made under such and such circumstances”. This literally appears to me, to mean that the court must warn itself the dangers against which the hearsay rule seeks to prevent. They should be removed first and circumstances from which the fact is sought should also be free from ambiguity. Short of this will lead to miscarriage of justice. 

 4.0, APPLICATION OF HEARSAY RULE FLEXIBLY

 In other words this means exceptions to the strict hearsay general rule. As is have already stated earlier in this work, that law is about people’s lives, it should not therefore be strictly applied when there is not serious dangers to defeat justice. The purpose and reason for hearsay rule are based on two considerations; firstly, necessity for the evidence and secondly, a circumstantial guarantee of trustworthiness . Turning on the first base of necessity, is that, the court must decide the case before it, with whatever source of evidence available. In Tanzania, the circumstances under which hearsay is admissible are well explained under Sections 34, 34B, 47 and 53 of The Evidence Act. These include where the maker of the statement is dead, unknown, can not be found, he has become insane, is entitled to diplomatic immunity, privileged or other similar reasons, whose attendance can cause unreasonable delay or expense and who refuses voluntarily to appear before the court as a witness. In the case of R vs. MOHAMMED SHADAFA (supra), Sisya, J, when estimating the weight to be attached to a statement adduced before him, said the following words; “In the present case I am satisfied on the evidence adduced that the deceased was in full control of his mental faculties when he made repeated statements that the accused persons are the ones who injured him”. Here the Judge was attracted with the situation in which the deceased was and believed the he (accused) would never get something like that wrong. In the strength of this belief, the judge dispensed with hearsay general rule. In other words dangers which hearsay rule prevents were negligible in his view. As I have already discussed above, the hearsay is rejected because it lacks the sanctions of the tests applied to admissible evidence such as oath and cross-examination. But when there are special circumstances which give guarantee of trustworthiness, it is admitted. This means that if there are other corroborative circumstances, the rule become flexible. In the case of MAKUNGIRE MTANI vs. R , the Court of Appeal said the following while accepting the assertion that the accused was the assailant of the deceased; that mysterious disappearance of the deceased for the company of appellant, blood stains of deceased’s group found on appellant’s cloth and refusal to give explanation on how deceased disappeared is an incriminating circumstances which was properly taken into account in establishing the appellant’s guilty. In the result, it think suffice it to say that, hearsay is really a type of reasoning not easily capturable in a few single words. This was once remarked by Mwalusanya, J. in the case of HASSAN FADHIL vs. R , he said a strictly thin piece of evidence does not advance the case one way or the other. This is to say a hearsay statement may fall short of itself establishing a fact in issue only if it is not sufficiently corroborated to negate the dangers prevented by the general rule. I therefore wish to wind up this part with the words of Kyando, J. in the case of JUMA YUSUPH vs. MINISTER FOR HOME AFFAIRS at page 81 – 82, he said, “But we often say, justice must be done even when heavens fall”. This means where these dangers are not there or at least are negligible, the court may dispense with them for the interest of justice. 6.0, CONCLUSION

 In this paper, I have discussed rule of hearsay, its meaning, general rule, rationale for excluding general rule and applicability of the rule inflexibly and flexibly. At this stage, I can just concur with other jurists that, where dangers which hearsay rule seeks to prevent are not in the case or have no value, declaration of absent person should be admitted. The court should take trouble to look for other corroborative evidences and satisfy itself that, the hearsay statement was made in good faith upon person knowledge. 

 BILBIOGRAPHY: STATUES:

 Tanzania government of, The Evidence Act [Cap 6 R.E 2002], Government Printers, Dar-es-salaam. BOOKS: 

Cross, S (1985) The Cross on Evidence, 6TH Edn, Butterworth Legal Publishers, London. 

Kaplan, et – al (1992), The Evidence, 17th Ed, The Foundation Press Inc, Westbury, New York. 

Taylor, The Law of Evidence, Vol.1-2, Sweeet and Maxwell, London. 

 MANUAL:

 Kivuyo & Sameja, Student’s Hand out, Dar es Salaam.