Hearsay

Including in a statement, or voicing in court, that which is considered hearsay is always a danger
and one of which the FME, or any clinician, should be aware.
The rule against hearsay is encapsulated thus:-
"An assertion other than one made by a person while giving oral evidence in the proceedings is
inadmissible as evidence of any fact asserted."29 This applies to any kind of assertion whether by
mouth, writing or gesture, eg a nod.
The rule will be strictly applied.
This rule does influence what the FME includes in the statement (or in evidence).
An example follows.
In the case of an alleged rape, the complainant tells the doctor that the assailant held a knife point to her
throat and said "I know what I am doing I have done it before".
In the doctor's statement, it is right and proper to include the history declared by the examinee of having the
knife held against her throat, as this may directly relate to the clinical findings on examination. The assertion
of having "done it before" may be hearsay and the doctor should not be surprised to have that statement square
bracketed. However it should still be included. This is discussed below.
In the above case the prosecution may want to adduce the spoken evidence as a matter of its cause
and effect on the state of mind of the alleged victim, in which case it may be allowed. It is unlikely
to be allowed if it were being introduced to "prove" the fact of the other assault.
Certain declarations made by the complainant may be admissible, under some circumstances. The
doctor on quickly seeing an alleged victim shortly after an alleged sexual offence may give
particulars of the complainant, which relate to the charge against the defendant, not as proof of the
allegation complained of, but as evidence of consistency of the conduct of the complainant as
exhibited by her testimony.
A further exception to the hearsay rules may occur which can affect the FME's statement.
Under the rule of Res Gestae,30 evidence of words used by a person may be admissible in that they
from part of the transaction (the assault for example) subject to legal proceedings. In the case of
alleged rape, and early declaration and examination by a forensic clinician, the highly distressed
complainant may make utterances to the doctor which can safely be regarded as a true reflection of
what she is experiencing because of the trauma. Such utterances may be allowed to be given by the
physician.
If there is doubt, spoken evidence should be included anyway. The doctor should not be offended if
he/she later finds that inclusion "square-bracketed"
out of the statement. Such an occurrence would suggest that the legal profession did not consider
that evidence to be a justifiable exception to the hearsay rules.
It is conceivable that an FME being part of the investigation team, may make a record of something
stated by a complainant which later may be admissible, even though it would otherwise constitute
hearsay, if the patient died, or is unfit to give evidence or who, through, fear does not give oral
evidence. 31 The court has the right to decide whether justice will be better served by introducing
it.32 The court must have regard to nature, source, relevance and authenticity of the statement and it
therefore behoves the police surgeon to keep the clinical forensic record as pristine and legible as
possible.
There are further exceptions to the hearsay rule which make fascinating reading for the interested
student but which do not directly affect the production of evidence by the FME and will not
therefore be included here.