“Objection, my Lord, that’s hearsay” – A summary of hearsay evidence in Scottish civil action.

Whether you have been closely following the news coverage of the ongoing trial between Johnny Depp and Amber Heard in Virginia, USA, or you have been unable to ignore it, for the most part, it has not been as brutal as many would have anticipated. The amount of objections raised by the solicitors representing Mr Depp and Ms Heard, however, has been a recurring theme of the proceedings thus far.

But what does “objection” actually imply, and why have they been saying it in a Trial?

During proceedings, objections are frequently raised to keep the jury or judge from hearing potentially inadmissible material. In a civil lawsuit for defamation, Johnny Depp is suing his ex-wife for damages, and both sides’ attorneys have made an effort to have some pieces of evidence dismissed due to hearsay.

What exactly is hearsay evidence?

Secondhand evidence is what is meant by hearsay. It also includes details that a witness claims they learned from or overheard others outside of court saying. It isn’t a direct reflection of what the witness saw or heard, according to the witness.

A hearsay objection could be raised if the witness starts their testimony with “she told me…” or “she said that John saw…”

If a witness begins their testimony with “she told me…” or “she said that John saw…” a hearsay objection could be made.

A civil case using hearsay evidence

The Civil Evidence (Scotland) Act of 1988 stated that hearsay should not be a valid reason to reject evidence. As long as the judge or jury is convinced that what is written or spoken actually occurred, written statements and reports that are not “spoken to” (referred to by a witness in attendance at the hearing) may be presented as evidence.

Using the “best evidence” principle, secondary evidence can also be used to support a claim. In Woolley v. Akram [2017] SC EDIN 7, it is stated that “the court should exclude secondary sources of evidence if the primary source is available unless sufficient unsuccessful efforts have been taken to obtain the primary source…If there is a good explanation why the primary evidence is unavailable, the court will also take secondary evidence into consideration.

Recent instances of hearsay evidence

The most recent civil cases involving hearsay evidence in Scotland that have had published judgements have included family matters and disciplinary measures conducted against professionals like teachers and nurses. In these cases, hearsay evidence has been found to be allowed when it was deemed reasonable to do so, taking into account a variety of factors such as the weight to be given to it, the extent to which it was objected to, and the reasons the witness who could vouch for the evidence personally was not present.

Hearsay evidence has recently been accepted in the following cases:

• M v. Scottish General Teaching Council [2020] The ‘fitness to teach’ panel accepted the use of hearsay evidence in CSIH 42 because it provided explicit justifications for doing so, and this was highlighted in its ruling.
• Children’s Reporter v. NM (2017 SAC (Civ) 37 – It was decided that a Children’s Reporter was allowed to use hearsay evidence when there were enough countervailing events to permit a fair evaluation of such material.
• In Ellison v. Inspirations East Ltd. 2003 S.L.T. 291, it was determined that refusing to admit a statement as hearsay evidence even if it had been prepared by an interpreter was against the public interest and discriminatory towards people who speak English as a second language.

Hearsay are not always admissible as evidence, though. A passage from the Sheriff’s judgement in Karen Sinclair or Fraser v. Catherine Fraser, a Scottish defamation case heard at Inverness Sheriff Court in 2010 (and perhaps with a slightly lower profile than Depp v. Heard), perfectly encapsulated the reasoning behind the court’s unwillingness to accept hearsay evidence.

Conclusion

In Scotland, hearsay or secondary evidence may be admitted into court proceedings, but the court’s decision to do so will likely depend on a number of different factors. Even if it is granted the opportunity to be heard, hearsay evidence may be objected to. In this instance, the court may reject it from consideration or restrict the amount of weight it lends to the party relying on it. Primary or first-hand evidence is generally favoured. As always, every case of hearsay evidence will be evaluated separately.