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