Implied Assertion

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An 'implied assertion' is evidence of the truth of some fact that can be inferred from some statement, behaviour, or conduct put forward as evidence in court. For example, If Fred sees Bill wave at person X and shout 'Hello Mary!', and person X waves back, then Bill's behaviour contains an implied assertion that person X is Mary. You may be wondering why this is such a big deal as to merit an imposing jargon title of its own. Well, if Fred testified in court that Bill said that person X was Mary, that would be Hearsay, and inadmissible. Or, at least, it would be inadmissible if put forward as evidence that person X was Mary. However, there are strong arguments why evidence that contains implied assertions should be admissible as to the truth of those assertions. It is widely believed that implied assertions are self-validating, and therefore harder to fabricate than ordinary oral reports. Consequently, the rule about exclusion of hearsay ought not to apply to implied assertions, or so it is claimed.

Implied assertions have caused a great deal of difficulty for the courts. On the one hand, they are technically hearsay; on the other, they are likely to be more reliable as evidence that oral hearsay. Evidence of this difficult is very apparent in cases such as R v kearly (1992). Here the prosecution wished to put forward statements made by unidentified persons by telephone to the defendant's house after he had been arrested. These telephone calls frequently expressed an interest in buying illegal drugs from the defendant. Now, if the prosecution simply tendered the evidence person X called on Friday at 5.30 pm and asked to buy cannabis, then this could be interpreted by the court in a number of different ways.

  1. 1. The telephone call was a statement tendered to prove that the defendant could supply cannabis
  2. 2. The telephone call was a statement tendered to prove that the caller believed that the defendant could supply cannabis
  3. 3. The behaviour of the caller in making the call was evidence from which it could be inferred that the defendant could supply cannabis
  4. 4. The behaviour of the caller in making the call was evidence from which it could be inferred that the caller believed the the defendant could supply cannabis.

In Kearly the majority held that if the evidence were put tendered in terms of interpretation (1), it would be hearsay, and should be excluded. On the other hand, if it were tendered in the form of (2) or (4), the evidence would not necessarily be excluded on the grounds that it was hearsay, but would instead be excluded on the grounds that it was irrelevant. The callers' states of mind, it was argued, were not probative of any fact in issue in the case. The majority was not prepared to allow interpretation (3). A minority would have opted for interpretation (3) and held that, whether or not the evidence was hearsay, it was safely admissible. After all, in everyday life we continually make inferences from people's conduct that certain facts are true.

The decision to be made in Kearly was, in fact, similar to that in the seminal case of Wright v Tatham, in which a party to a probate action wished to adduce letters written to the deceased as evidence that he had been sane when he died. Parke B held that this evidence was hearsay, and used as an analogy the now notorious example of evidence whether a ship was seaworthy. He stated that evidence that a sea-captain was prepared to sail in a ship was hearsay, so far as it went to prove that the ship was seaworthy. This evidence was no different in principle than a statement made by the captain to another person that the ship was seaworth -- both statements or courses of action were out-of-court statements offered as evidence of the truth of their contents. At best both evidenced the state of the captain's belief in the vessel's seaworthiness.

The arguments of the minority in Kearly clearly swayed the Law Commission when it was investigating reforms to the law on hearsay. Concerning Wright, the Commission pointed out that a report that the sea-captain was prepared to sail in a ship, whether hearsay or not, was a better indicator of the seaworthiness of the vessel than the captain's word to another person that it was. What distinguished the evidence in Kearly and Wright_ from 'real' hearsay evidence that ought to be excluded was that the makers of the evidential statements did not intend to state any facts. It also questioned whether the actions of the callers in Kearly or the sea-captain in Wright_ amounted to an assertion at all.

Consequently, in its consultation document on hearsay the Commission suggested that that the law on hearsay ought only to apply to statements (where 'statement' is broadly defined, and includes conduct) where the maker intended to assert the truth of the facts in the statement. Various misgivings were apparent in the replies of the consultees so, in its final report, the Commission modified the deciding factor to be whether the statement (or conduct) was made with intention of causing another person to believe the facts, or to act in a certain way. This is the formulation that has been adopted in the CJA_2003, s.115(3) of which says:

A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been-

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.

Clearly the evidence in Kearly will not fall into the category of hearsay under this provision: according to s.115(3) even if the callers in Kearly did assert (or imply) facts, they did not do so with the intention that they be believed. Hence they are not statements, and therefore the issue whether they are hearsay or not is academic.

There is broad support for this reform, and it only reflects the law as its stands in most other jurisdictions, but does it really make sense? In Kearley, would it really have been the case that the the caller's behaviour was a more reliable indicator of the defendant's guilt, than an express statement made by the caller to the police? Under the 2003 Act, if the police had identified themselves to the callers, and asked if the defendent was a drug dealer, then the answer would still have been inadmissible hearsay. But if the callers merely telephoned and asked for drugs, that would have been admissible evidence that the defedant was able to supply them.

However, all that the conduct of the sea-captain in Wright, and the dopeheads in Kearly_, tends to show is the strength of certain persons' beliefs in certain states of affairs. By telephoning Kearly's house, the callers were showing that they have a belief in his ability to supply drugs; by getting on board ship, the sea-captain is showing his belief in the seaworthiness of the vessel. The problem is that, as the majority said in Kearly, these beliefs are only admissible to the extent that they are logically probative of a fact in issue. In themselves, as beliefs, they are irrelevant, whether hearsay or not. The captain's belief as to the ship's seaworthiness may be probative, as perhaps he can be expected to have expert knowledge of ships. But the belief of the callers in Kearly is not probative of anything_. I get a dozen junk e-mails a day offering to sell me Viagra. Should those e-mails be admissible evidence that I am a consumer of Viagra? Even if this evidence is not hearsay, it is surely of very little weight.

Moreover, as the Law Commission accepted in general, the most compelling argument for excluding hearsay evidence is that it cannot be challenged by cross-examination. In Kearly, the telephone callers could not be cross-examined on the grounds that they had for believing the Kearly could supply them with drugs, because they were never identified. But surely that belief should be tested by cross-examination -- it is a central feature of the prosecution case. Whether the callers expressly told the police that they thought Kearley was a drug dealer, or whether they merely acted as if he was, in either case it is the reason for their belief that is a key issue, and in neither case can it be tested in court.

This point was raised in the consulation, but it does not appear (to me at least) that the Commission really appreciated the force of the argument. In s.7.23 of the Final Report, it says in answer to this objection:

Some respondents argued that it should make no difference whether an out-of-court assertion is express or implied: if it is repeated in court, and the person who made it does not give evidence, the other party faces difficulties in challenging the reliability of the assertion and the credibility of its maker. But this argument appears to be directed at the admission of implied assertions in the ordinary sense, and not at evidence which is not intended to be assertive at all. We still believe that the borderline cases discussed above [i.e., Wright v Kearly] ought not, in general, to be caught by the hearsay rule.

It is not clear (to me, at least), what is meant by implied assertions in the ordinary sense, and it seems to me that the inability of the defendant in Kearly to cross-examine the callers, whether their statements are express or implied, is exactly the reason we have a hearsay rule in the first place. Possibly the last statement in this paragraph is the key to understanding the reasoning -- the Law Commission (along with many others, it has to be said) has formed the impression that the evidence that was excluded in Kearly ought to have been included, and have formulated a definition of 'statement' so as to ensure that in future it wil be.

In short, by deeming implied assertions of facts not to be hearsay if the assertions were not made with the intention of causing the facts be believed, the CJA2003 will have the effect of either admitting evidence of low probative value, or admitting evidence that ought to be subjected to cross-examination, but cannot. To be fair, it was always a clear belief of the Law Commission that more evidence ought to be admissible, and that juries and magistrates ought to be capable of assessing the weight of hearsay evidence properly. After all, the Commission argued, we ask juries to make determinations of the weight of evidence in other complex factual situations, so we can reasonably ask them to do the same with hearsay. This may be true, but it is still worrisome that the 2003 Act has to adopt a contorted definition of 'statement' in order to rule that implied assertions are not hearsay, than simply to rule that they are hearsay but, under certain conditions, should be admitted.