1. Hearsay Evidence

Hearsay evidence refers to a statement made outside of the court and repeated in court with the intention of proving its truth.^[1] Traditionally, such evidence is inadmissible because it cannot be proved whether it is concocted or not or whether the maker appreciated the obligation to say the truth at the time of the making.^[2] Thus the common law adopts an exclusionary approach which is applicable to both the United States and the United Kingdom as explained below.

1.1. Federal Rules of Evidence in the United States

The United States’ evidence law on the rule against hearsay evidence sparks from the common law position that excludes hearsay evidence and renders it inadmissible though with exceptions. The general rule is that hearsay evidence is inadmissible under the Federal Rules of Evidence. Thus in the case of Donnelly v. United States,[3]a statement by the defendant that a third party had confessed to the crime was declared inadmissible on the basis of being hearsay. There are exceptions to the hearsay rule which include; first, evidence that points to the state of mind of a declarant is admissible under Rule 803 (3).[4] Under  Rule 803(3) a statement of the declarant’s then existing state of mind, emotions, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of declarant’s will.[5]

In the case of United States v Hartmann,[6] the court admitted witness statements of a murder victim that he made out of court to the effect that his wife and her lover planned to kill him to benefit from the victim’s life insurance policy and that the victim wanted to change the beneficiaries in his insurance policy. However, the court must be satisfied that the evidence of the state of mind of the declarant is relevant as required under Rule 401, and secondly that the admission of such evidence is not to prove the fact remembered or believed.[7]

The other exception to the hearsay rule is on statements between conspirators in the absence of a defendant to continue with a conspiracy[8] as was held in the case of Murray v. United States.[9] Thirdly, testimony by a third party present during the making of a contract is admissible to prove that the contract was made.[10] Statements made to obtain medical treatment are admissible under Rule 803(4).  Therefore statements made for purposes of medical diagnosis or treatment and describing medical history, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment is admissible as an exception to the hearsay rule.[11]

The other exception to the hearsay rule is on the admissibility of business records. Rule 803 (6) excludes from the operation of the hearsay rule the records of regularly conducted activity such as a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity.[12] Rule 803(8) also creates an exception to the operation of the hearsay rule on public records and reports setting forth the activities of the office or agency.[13] Additionally, circumstantial evidence of an operating fact would be admissible even where the maker of the statement is not present in court.  A court may also allow hearsay evidence where it is satisfied that reasonable standards of necessity and trustworthiness are met.

1.2. UK Evidence Law

The UK adopts the common law position that hearsay evidence is inadmissible to prove the truth of the statements. As a result, such evidence is to be excluded from the trial because it would ordinarily prejudice a party unfairly when admitted.[15] There are several exceptions to this rule that have emerged over time and in some instances, statements made and repeated in court to prove their making but not the truth in them have been admitted. For example, in the case of Subramaniam v Public Prosecutor,^[16] it was held that the statement by S that he was threatened by terrorists was admissible to prove that he acted on fear and not to show the truth of the statement. The position of hearsay evidence in civil cases is that all evidence is admissible.

Civil Evidence Act 1995 states that no evidence shall be excluded in a civil proceeding because it is hearsay.^[17] Under criminal proceedings, hearsay evidence is inadmissible. The Criminal Justice Act of 2003[18] gives four exceptions to the inadmissibility of hearsay evidence. The first one is where the law provides that such evidence should be admitted including statements of unavailable witnesses or dead witnesses.^[19] Secondly, where the statement falls under res gestae rules thereby intrinsically forming part of the same transaction. Thirdly, hearsay evidence would be admissible where the parties agree that it is admissible without objection from the defense or the prosecution. Lastly, the court may admit hearsay evidence where it is satisfied that it is in the interest of justice that such evidence is admissible.

2. Opinion Evidence

Witnesses generally testify only to the things they personally perceived with their senses. These are material facts that they are fully seized and not their opinions as to these facts. As such the general rule is that only facts are admitted and opinions of non-expert witnesses are inadmissible. An opinion generally refers to the perception and inference that one draws from a set of events as opposed to the reality of the events which are factual.

2.1. Opinion Evidence in the United Kingdom

Generally, opinion evidence is inadmissible in the United Kingdom.[20] This based on the reality that the witness is only invited to give evidence as to the facts and leave it to the jury and the judge to evaluate the witness’ set of fact and then the jury can give its opinion on it.  The exception to the rule on excluding evidence of opinion is the experts’ opinion which is admissible. Such evidence of experts arises where there is specialized evidence which requires some form of interpretation in order for its significance to be fully appreciated by the court.[21] Experts may, therefore, give their opinion on common forms of evidence, such as fingerprints, bloodstains or DNA, to areas such as ear prints, voice identification or handwriting analysis.[22] The court must, however, satisfy itself that expert evidence is required in the circumstances and that the person giving such evidence is an expert.

The expert evidence will only be admitted where the matter concerned is one which is outside the knowledge or understanding of the court or jury and therefore in the case of R v Turner[23] the court rejected the psychiatric evidence intended to prove that the defendant had been provoked. The Court of Appeal stated that the likelihood of the defendant having been provoked in the circumstances were matters within the competence and experience of the jury. As such, the trial judge had been correct to exclude psychiatric evidence.  To the contrary, the court allowed expert evidence on automatism in the case of R v Smith[24] stating that automatism was a medical condition which was not within the experience of an ordinary person.

Additionally, the court must also consider whether the person put forward by the party in question is suitably qualified to be considered an ‘expert’. In the case of R v Murphy[25] M was charged with causing death by driving recklessly. The trial judge allowed expert evidence on the probable cause of the collision from a police officer with extensive experience in road traffic accidents. M appealed against his conviction on the grounds that the evidence of the police officer was wrongly admitted as he was not an ‘expert’. The court held that the police officer was entitled to give evidence in the capacity of an ‘expert’.

2.2. Opinion Rules in the United States

The rules as to opinion evidence are contained in the Federal Rules of Evidence. Rule 701 permits a lay witness to testify to an opinion or inference that is rationally based on his perception and helpful either to a clear understanding of his testimony or to the determination of a fact in issue.[26] There are two prerequisites to the admissibility of a lay person’s opinion. The first requires that the lay witness’ testimony be “rationally based on the perception of the witness.” Secondly, the witness’ opinion should be helpful either to a clear understanding of the witness’ testimony or to the determination of a fact in issue.[27] Rules 702 and 703 outline prerequisites for admitting expert opinions. Under Rule 702, a person who is ‘qualified as an expert’ may give opinion testimony.[28] The qualifications of such an expert must come from “knowledge, skill, experience, training or education,” and the expert is permitted to testify to scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue. Under Rule 703, an expert may base her opinion upon facts or data perceived by or made known to her either at or before the hearing.[29] This is a departure from the English rule that excludes the opinion evidence of laypersons although the admissibility of expert evidence is similar.

3. Psychiatrist-Patient Privilege

Privilege refers to the ability to refuse to disclose certain information as part of litigation.[30] There is a general requirement on witnesses to answer questions in court and on the litigants to make available documentation in their possession.[31] A witness who wishes not to give such information because of protection granted in law may claim the privilege.

• Doctor-Patient Confidentiality in the United Kingdom

The relationship of doctor and client imposes confidentiality, therefore, the common law principle that information received in confidence cannot be taken advantage of applies.[32] The patient’s medical records may, therefore, be privileged hence a doctor is not allowed to reveal it. There are exceptions to this and a doctor may reveal such information when it is in the interest of the public. In the case of W v Edgell,[33] The patient was a prisoner in a secure hospital following convictions for killing five people and wounding several others. He made an application to a mental health tribunal to be transferred to a regional unit. An independent psychiatrist, Dr Edgell, was asked by W’s legal advisors to provide a confidential expert opinion that they hoped would show that W was no longer a danger to the public. However, Dr Edgell was of the opinion that in fact, W was still dangerous. W’s application was withdrawn. Dr Edgell, knowing that his opinion would not be included in the patient’s notes, sent a copy to the medical director of the hospital and to the Home Office. The patient then brought an action for breach of confidence. The Court of Appeal held that the breach was justified in the public interest, on grounds of protection of the public from dangerous criminal acts. However, the Court said the risk must be ‘real, immediate and serious’.

• Federal Rules of Evidence on Patient’s Privilege

Federal Rule of Evidence 501 establishes a general privilege for confidential communications in federal criminal proceedings. The courts are to develop this rule because it does not enlist the privileged classes which are thought to have given more power to the courts. Patient’s privilege not to have his medical information disclosed is anchored in this rule.[34] In the case of Jaffee v. Redmond,[35] the court recognized that communication between a psychotherapist or social worker and her patient are privileged. The Supreme Court held that a psychotherapist’s records of her conversations with her police officer patient were privileged from both productions in discovery and questioning as to their contents in a deposition. This privilege is subject to limitation and a court may waive the privilege in the interest of the public.

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