Comprehensive Analysis of Hearsay

Evidence and Character Evidence

In the law of evidence, hearsay and character evidence represent two significant
areas in which rules of admissibility operate to preserve the integrity of judicial
proceedings. Although both types of evidence are generally approached with
caution, their doctrinal bases, functions, and the risks they pose to fairness differ
markedly. A comprehensive analysis of their nature, exceptions, and the judicial
attitude towards their use is essential in understanding the principled development
of evidentiary rules and the careful balance between probative value and prejudicial
impact.

Hearsay Evidence

Hearsay evidence is classically defined as a statement, whether oral or written,

made outside the court, which is tendered in court as evidence of the truth of the
matter asserted. The foundational rationale for the exclusion of such evidence lies in
its inherent unreliability, principally because the declarant is not present in court to
be cross-examined under oath. The leading case of Subramaniam v Public
Prosecutor [1956] 1 WLR 965 offers a definitive explanation: the Privy Council held
that a statement is hearsay and inadmissible if its purpose is to prove the truth of its
content, but not if it is tendered simply to prove that the statement was made or to
establish its effect on the hearer. In that case, the court admitted threats made to the
accused by terrorists not to prove their content but to demonstrate that he acted
under duress — a vital distinction underpinning admissibility.

This exclusionary rule, however, is not absolute. The law has developed various
exceptions, both under the common law and, more recently, by statutory reform.
Under the Criminal Justice Act 2003 in England and Wales, hearsay may be
admissible in criminal proceedings under specific circumstances. Section 116 of the
Act allows hearsay where the witness is unavailable due to death, incapacity, fear, or
absence abroad. The modern judicial approach was reflected in R v Horncastle
[2009] UKSC 14, where the Supreme Court upheld the use of hearsay evidence
under statutory exceptions and rejected the argument that such use inherently
contravened Article 6 of the European Convention on Human Rights. The court
emphasized that the legislative scheme provided sufficient safeguards to ensure
fairness, such as the requirement for reliability and judicial discretion.
An important category of exception is the doctrine of res gestae, under which
statements made contemporaneously with an event, under the pressure of the
moment, may be admitted. In R v Andrews [1987] AC 281, the House of Lords laid
down that spontaneity and a lack of opportunity for concoction are the key criteria
for admissibility. However, the boundary of this exception is carefully policed. For
instance, in R v Blastland [1986] AC 41, a defendant attempted to introduce a third
party’s statements implicating themselves in the crime. The court excluded the
evidence, ruling it inadmissible hearsay since it was offered to prove the truth of the
matter asserted and did not fall within any exception.

Judicial caution is further illustrated in R v Kearly [1992] 2 AC 228, where telephone

inquiries made to the accused’s flat by persons seeking drugs were ruled
inadmissible. Although they arguably suggested drug dealing, the statements were
introduced to prove the truth of the matter asserted by the callers — namely, that
the accused was dealing in drugs — and since the callers were not present for cross-
examination, the evidence fell foul of the hearsay rule.

It is worth noting that the approach to hearsay in civil proceedings is generally more
permissive. Under the Civil Evidence Act 1995, hearsay is admissible in civil trials,
and the issue is typically one of weight rather than admissibility. Nevertheless, the
common concern remains: the truth of the matter asserted must be reliably
established, and parties must have the opportunity to respond adequately.

Character Evidence

Character evidence, by contrast, involves statements or testimony about a person’s

general disposition or previous conduct, usually to suggest that they acted in
conformity with that character on a particular occasion. The traditional common
law position was that such evidence is inadmissible because it is likely to prejudice
the jury and divert attention from the actual facts in issue. This position was
emphatically upheld in Hollington v Hewthorn [1943] KB 587, where the court ruled
that a previous conviction could not be adduced in a civil negligence claim to prove
that the defendant was at fault. The rationale was that such evidence was merely
opinion and could improperly influence the tribunal of fact.

In criminal law, however, the landscape is more nuanced. Defendants are entitled to
rely on their good character, which has evidentiary significance in two important
respects. First, it bears on credibility — the likelihood that the accused is telling the
truth — and second, it suggests that the accused is less likely to have committed the
offence. In R v Vye [1993] 1 WLR 471, the Court of Appeal held that the judge should
direct the jury on both aspects of good character where applicable. This position
was reinforced in R v Aziz [1996] AC 41, where the House of Lords acknowledged
the evidential relevance of good character but also cautioned that trial judges may
withhold such a direction where the accused’s conduct renders it inappropriate —
for instance, where the accused has a recent history of offending.

The introduction of the Criminal Justice Act 2003 significantly altered the
admissibility of bad character evidence. Under sections 98 to 113, such evidence
may now be admissible through one of several statutory “gateways.” One of the
most frequently invoked is section 101(1)(d), which permits bad character evidence
where it is relevant to an important matter in issue, such as propensity to commit
the offence. In R v Hanson [2005] EWCA Crim 824, the Court of Appeal elaborated
on the proper use of this gateway, emphasizing that the prosecution must
demonstrate a genuine propensity to offend and that the prejudicial effect of such
evidence does not outweigh its probative value. Importantly, Hanson cautioned that
mere similarity between past conduct and the charged offence is insufficient; rather,
there must be a logical relevance and fairness in admitting such evidence.

The approach to character evidence in civil proceedings remains restrictive unless

the character is directly in issue. For instance, in actions for defamation, custody
disputes, or professional misconduct, the character of a party or witness may bear
directly on the issue to be decided. But outside such scenarios, character remains
largely irrelevant. The ruling in Hollington v Hewthorn continues to exert influence
in these contexts, affirming that prior convictions or general reputation cannot be
used to establish liability indirectly.

Analytical Distinction Between the Two

While hearsay and character evidence are both subject to exclusionary rules, the
principles that govern their treatment are rooted in different concerns. Hearsay is
fundamentally about the source and reliability of factual assertions. The risk is that
a statement made outside court is tendered for the truth it asserts without the
declarant being subject to cross-examination, which undermines the fairness and
transparency of the fact-finding process. Character evidence, on the other hand,
concerns the relevance and prejudicial value of using a person’s history or
disposition to infer conduct on a particular occasion. The fear here is that jurors will
convict not on the strength of the evidence, but on the basis of a person’s perceived
moral failing or reputation.

Moreover, while hearsay focuses on statements, character evidence focuses on the

person. A hearsay statement might be factually accurate yet inadmissible because of
procedural concerns; character evidence might be entirely true but inadmissible
because it unduly prejudices the fact-finder. The modern statutory frameworks —
the Civil Evidence Act 1995 and the Criminal Justice Act 2003 — attempt to balance
these competing concerns by setting out clear exceptions and giving courts
discretion to exclude evidence where its admission would compromise fairness.

These two evidentiary types also differ in their judicial safeguards. In the case of
hearsay, safeguards include requirements such as necessity, spontaneity (as in res
gestae), or statutory unavailability. For character evidence, especially bad character,
safeguards include judicial directions on the limited use of such evidence and the
proportionality of its probative and prejudicial value. In both cases, the overarching
principle is that evidence must assist the court in achieving a fair and just outcome,
without undermining the procedural integrity of the trial.

In conclusion, while hearsay and character evidence may both be viewed as

potentially prejudicial and are subjected to rigorous scrutiny, their legal treatment
arises from fundamentally different conceptual concerns. Hearsay is excluded
primarily due to its unverifiability, whereas character evidence is excluded due to
its potential to distract from the facts and appeal to improper reasoning.
Understanding their distinctions not as a matter of form but as an analytical
differentiation rooted in the theory of evidence allows courts and practitioners to
navigate the complex terrain of admissibility with greater clarity and fairness.