LESSON EIGHT: HEARSAY EVIDENCE

• ©Muthomi Thiankolu

• Branton Court, Maisonette A2

• Ndemi Lane, Off Ngong Road
• P. O. Box 19893-00100 Nairobi Kenya
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• “A, who witnessed an act of dangerous driving, some weeks later said
to B that the car in question was blue and at the same time made a
written note to the same effect. B reported to C what A had said to
him. If A is subsequently called as a witness in proceedings
concerned with the incident in question, he may of course make a
statement from the witness box in the course of giving his evidence to
the effect that the colour of the car he saw was blue. Evidence may
not be given, however, by A, B, or C of the oral statement made by A
out of court. Likewise, the written statement made by A is
inadmissible. if A were to give evidence that the car in question was
blue, and it were suggested to him in cross-examination that his
evidence had been recently fabricated, his former out-of-court
statements would be admissible, but not as evidence that the car was
in fact blue. If A were to give evidence that the car in question was
red, and under cross-examination about his previous out-of-court
statements were to deny having made them, they could be proved
against him, again not as evidence that the car was in fact blue.”
_____ANONYMOUS
• Discuss 30 MARKS
Scope of the Lesson

¨ Introduction: The Rule Against Hearsay.

¨ Justification of the Rule Against Hearsay
¨ Scope of the Exclusionary Rule.
¨ Hearsay admissible at Common Law.
1. Statements in public documents.
2. Works of Reference.
3. Statements of persons since deceased.
4. Declarations against Interest.
5. Declarations in the Course of Duty.
6. Declarations as to Pedigree.
Scope of the Lesson (Cont.)

7. Declarations as to Public and General

Rights.
8. Dying Declarations.
9. Statements forming part of the res gestate.
10.Evidence given in former proceedings.
11.Confessions/Admissions.
¨ Selected Illustrative Cases
Introduction: The Rule Against Hearsay

¨ The common law laid emphasis on direct or

first-hand oral testimony as opposed to, for
lack of better words, ‘reported speech.’
¨ The common law rule against the admission of
hearsay holds that an assertion other than one
made by a person while giving oral evidence in
court is inadmissible if tendered as evidence of
the fact(s) asserted.
Introduction: The Rule Against Hearsay

¨ In Kenya, the rule against the admission of hearsay

is to be found at section 63 of the Evidence Act,
which states:
¨ “63 (1) oral evidence must in all cases be direct evidence.
– (2) For the purposes of subsection (1), “direct
evidence” means-
– (a) with reference to a fact which could be seen,
the evidence of a witness who says he saw it;
– (b) with reference to a fact which could be heard,
the evidence of a witness who says he heard it;
Introduction: The Rule Against Hearsay

• (c) with reference to a fact which could be perceived by any

other sense or in any other manner, the evidence of a witness
who says he perceived it by that sense or in that manner;
• (d) with reference to an opinion or to the grounds on which
that opinion is held, the evidence of the person who holds that
opinion or, as the case maybe, who holds it on those grounds:
• Provided that the opinion of an expert expressed in any
treatise commonly offered for sale, and the grounds on which
such opinion is held, may be proved by the production of such
treatise if the author is dead or cannot be found, or has
become incapable of giving evidence, or cannot be called as a
witness without an amount of delay or expense which the
court regards as unreasonable.”
Justification of the Rule Against Hearsay

• As stated in Lesson 2, the Justification

for the general exclusion of hearsay

evidence is best captured in the dictum

of Lord Normand in Teper v R [1952] A.

C. 480 at 486:
Justification of the Rule Against Hearsay

• “the rule against the admission of hearsay evidence is

fundamental. It is not the best evidence [as it is indirect
rather than first-hand] and it is not delivered on oath
[and hence the obligation to tell the truth might not have
been uppermost in the mind of the person whose words
are repeated in court]. The truthfulness and accuracy of
the person whose words are spoken to by another witness
cannot be tested by cross-examination [and hence there
are difficulties in deciding what weight, if any, to attach
to the hearsay evidence], and the light which his
demeanour would throw on his testimony is lost.”
Justification of the Rule Against Hearsay

 Lord Bridge further explained in R v Blastland [1985] 2 All

ER 1095 at 1099 that the exclusion of hearsay evidence has
nothing to do with its probative value or lack thereof:
 “hearsay evidence is not excluded because it has no
logically probative value…The rationale of excluding it as
inadmissible, rooted as it is in the system of trial by jury,
is a recognition of the great difficulty, even more acute
for a juror than for a trained judicial mind, of assessing
what, if any , weight can properly be given to a statement
by a person whom the jury have not seen or heard and
who has not been subject to any test of reliability by
cross-examination…The danger against which this
fundamental rule provides a safeguard is that untested
hearsay evidence will be treated as having a probative
force which it does not deserve.”
Justification of the Rule Against Hearsay

¨ Murphy has explained the rationale for exclusion of hearsay in

the following terms:
¨ “There is no mystery surrounding the often expressed
reluctance to admit hearsay evidence more widely. It is a
continuation of the judicial preoccupation with three dangers
said to be associated with hearsay. These are (1) the risk of
distortion inherent in evidence which consists of repeating
what someone else said, (2) the fears that juries may be unable
to evaluate hearsay evidence in an appropriate way, and (3) the
danger of produce resulting from the absence of opportunity to
cross-examine. The question is, to what extent those fears
should still be heeded today, and how they can be assuaged
without the necessity of excluding much relevant and
potentially cogent evidence.”
¨ See Murphy (1997) “Hearsay: The Road to Reform,” 1 (2)
International Journal of Evidence and Proof, 107-127 at p.
117. see also Adrian Kean at p. 220.
Justification of the Rule Against Hearsay

 In in R v Blastland [1985] 2 All ER 1095, the Appellant had been

convicted of the buggery and murder of a 12-year old boy.
 Held:
1. the appellant could not adduce evidence of statements made by
a third party indicating his knowledge of the murder several
hours before the boy was reported missing and body
discovered, because the only issue before the court was whether
the appellant had committed the crimes and what was relevant
to that issue was not the third party’s knowledge but how he
acquired it.
2. Since the third party could have acquired knowledge of the
murder many different ways, there was no rational basis upon
which the jury could infer that he, rather than the appellant,
was the murderer.
Scope of the Rule Against Hearsay

 At common law, the rule against hearsay applies to all out of

court statements, howsoever made, when offered as the truth
of their contents.
 The scope of the rule extends to out-of-court:
1. oral statements (see Sparks v R [1964] A. C. 964);
2. written statements (see Myers v DPP [1965] A. C. 1001); and
3. statements made by conduct, including signs and gestures
(see Chandra-sekera v R [1937] A. C. 220 PC);
4. express and implied statements (see Teper v R [1952] A. C.
480 and Wright v Doe d Tatham (1837) 7 AD & EI 313 for
implied assertions).
5. statements as to existence or non-existence of facts.
The Rule Against Hearsay: Matters to Note

¨ NB:
1. As stated in lesson 2, hearsay evidence may be
given to prove that a statement was made, rather
than to prove the truth of the statement (see
Subramaniam v Public Prosecutor [1956] 1 W.L.R.
965 on allegation that terrorists (not called as
witnesses) had forced the appellant to carry
ammunition).
2. The rule against hearsay prohibits the eliciting
of such evidence during both examination-in-
 The Rule Against Hearsay: Matters to Note

3. An out of court statement for purposes of the rule

against hearsay means any statement other than
one made by a witness in the course of giving his
evidence, and could include a statement made in
previous legal proceedings.
4. It is immaterial, for purposes of the rule against
hearsay, whether the maker of the statement
intended to communicated thereby, and hence the
rule applies to the situation where a person is
talking to himself unaware that he is being
overheard.
 The Rule Against Hearsay: Common Law Exceptions

¨ As is evident from the foregoing, the rule against hearsay can

operate to exclude highly cogent evidence.
¨ Common law judges, therefore, developed a number of
important exceptions to the rule against hearsay, most of
which have now been codified into statute (c.f. sections 33, 34
and 63 of the Kenyan Evidence Act), including:
1. Statements in public documents (c.f. section 38 of the
Evidence Act);
2. Works of reference (c.f. the proviso to section 63 (1) (d)
of the Kenyan Evidence Act);
3. Statements of persons since deceased/dying
declarations (c.f. section 33 (a) of the Kenyan Evidence
The Rule Against Hearsay: Common Law Exceptions

4. Statements forming part of the res gestae (c.f.

sections 6 and 33 of the Kenyan Evidence Act);
5. Evidence given in previous legal proceedings
(c.f. section 34 of the Kenyan Evidence Act).
6. Declarations against Interest (c.f. section 33
(c) of the Kenyan Evidence Act).
7. Declarations in the Course of Duty.
8. Declarations as to Pedigree (c.f. section 33 (f)
of the Kenyan Evidence Act).
Common Law Exceptions: Public Documents

¨ At common law, statements made in most public

documents are admissible in both civil and criminal
cases as evidence of the truth of their contents.
¨ The justification for this exception to the rule against
hearsay is convenience and the presumptive reliability
of records routinely made and kept by impartial and
detached public officials for future public reference
¨ see Adrian Kean at p. 240.
¨ see also Murphy (2007) “Hearsay: The Road to
Reform,” 1 (2) International Journal of Evidence and
Proof, 107-127 at p.110).
Common Law Exceptions: Public Documents

¨ Moreover, whereas proof of the matters stated in

public documents by direct evidence would be
ideal, in many cases the public official who made
the entry will be dead, otherwise unavailable or
unable to remember the facts recorded because
of the time which has lapsed.
¨ At common law, there were three conditions of
admissibility of statements contained in public
documents by way of an exception to the hearsay
rule (c.f. Lord Blackburn in Sturla v Freccia (1880)
Common Law Exceptions: Public Documents

¨ A public document was admissible as

evidence of the truth of its contents if it:
1. concerned a public matter (see Sturla v Freccia);
2. was made by a public officer acting under a duty
to inquire and record the results of such an
inquiry (see Doe d France v Andrews (1850) 15
QB 756); and
3. was intended to be retained for public reference
or inspection (see Lilley v Pettit [1946] KB 401
DC).
Common Law Exceptions: Public Documents

¨ Though not an exact replica of the common law

exception, section 38 of the Kenyan Evidence Act is
couched in words that suggest influences from the
common law :
¨ “An entry in any public or other official book,
register or record, stating a fact in issue or a
relevant fact, and made by a public servant in the
discharge of his official duty, or by any other
person in performance of a duty specially enjoined
by the law of the country in which such book,
register or record is kept, is itself admissible.”
Common Law Exceptions: Works of Reference

¨ At common law, authoritative published works of

reference dealing with matters of a public nature are
admissible to prove, or to assist the court in deciding
whether to take judicial notice of, facts of a public nature
stated therein (see section 60 (2) of the Evidence Act).
¨ From case law (see Adrian Kean at p. 244), documents
receivable under this exception include historical works
concerning ancient public facts; standard medical texts
concerning the nature of a disease; engineers reports
within the common knowledge of engineers and accepted
by them as accurate on the nature of certain soil,
dictionaries on the meaning of ordinary English words etc.
Common Law Exceptions: Statements of Persons Since Deceased

¨ Certain statements of persons since deceased are

admissible at common law as evidence of the truth of
their contents.
¨ In Kenya, this common law exception has been codified
into section 33 of the Evidence Act, although the
section is not limited to statements of deceased
persons (as it also covers statements by persons who
cannot be found, who have become incapable of giving
evidence, or whose attendance cannot be procured
without a degree of delay or expense that would be
unreasonable in the circumstances of each particular
 Common Law Exceptions: Statements of Persons Since Deceased

1. Dying declarations in homicide (murder/manslaughter) cases

the justification being the presumptive reliability of statements
made in the face of impending death (c.f. section 33 (a) of the
Kenyan Evidence Act):
– “the principle upon which this species of evidence is admitted
is, that they are declarations made in extremity, when the
party as at the point of death, and when every hope of this
world is gone, when every motive to falsehood is silenced, and
the mind is induced by the most powerful consideration to
speak the truth; a situation so solemn and so awful is
considered by law as creating an obligation equal to that
which is imposed by a positive oath administered in a court of
justice.”__ Eyre CB in R v Woodcock [1789] Leach 500,
Common Law Exceptions: Statements of Persons Since Deceased

– The conditions of admissibility under this

exception were:
• the declarant must have been under a
settled hopeless expectation of death; and
• the declarant must have been competent as
a witness.
 Common Law Exceptions: Statements of Persons Since Deceased

2. statements made in the ordinary course of duty, the justification

being that the duty itself provides a guarantee of reliability (c.f.
section 33 (b) of the Kenyan Evidence Act). There were six
conditions for admissibility under this common law exception:
– (i) the deceased must be shown to have been under a duty
not only to do the particular thing to which the declaration
related but also to report or record it; (ii) the duty must have
been owed to another rather than self-imposed; (iii) the
declaration must relate to acts done by the deceased and not
by others; (iv) the act must have ben performed before the
declaration was made; (v) the declaration must have been
more or less contemporaneous with the performance of the
act; and (vi) the declarant must have had no motive to
Common Law Exceptions: Statements of Persons Since Deceased

3. declarations against the pecuniary or

proprietary interest of the maker:
– the justification for this exception to the
hearsay rule was the unlikelihood of a
reasonable person would make such a
statement unless he believed it to be true,
the presumed unlikelihood of a person
speaking falsely against his won interest (c.f.
section 33 (c) of the Kenyan Evidence Act);
 Common Law Exceptions: Statements of Persons Since Deceased

4. declarations as to public and general rights or custom (c.f.

section 33 (d) of the Kenyan Evidence Act):
• the justification for this exception was that other evidence,
especially in the case of ancient rights, is usually
unavailable. To be admissible, such declaration must have
been made before any controversy arose on the existence
or non-existence of the public or general right or custom.
• NB: Public rights are those common to the public at large,
such as rights to use paths, highways, ferries or landing
places on the banks of a river. General rights are those
common to a section of the public or a considerable class
of such persons, such as the inhabitants of a parish or the
tenants of a manor.
Common Law Exceptions: Statements of Persons Since Deceased

5. declarations as to pedigree (c.f. section 33 (e) and

(f) of the Kenyan Evidence Act):
– the justification being that such declarations are often
the only evidence that can be obtained concerning
facts which may have occurred many years before the
trial. At common law, such declarations were only
admissible if made by a blood relation as opposed to,
say, a relation in law, domestic servants or intimate
acquaintances. Further, to be admissible, the
declaration must have been made before any
controversy arose upon the matter (of pedigree) in
Common Law Exceptions: Statements Forming Part of the Res Gestae

¨ “Res gestae” is an omnibus phrase embracing a group of

common law hearsay exceptions which are loosely
connected by the circumstance that a statement is made
roughly contemporaneously with an event to which the
statement relates.
¨ The justification for the res gestae exception to the
hearsay rule was based on the spontaneity of the
statement, the lack of opportunity to fabricate or
exaggerate and the light the statement sheds upon the
act or event in issue: in its absence, the transaction in
issue may not be fully or truly understood and may even
appear meaningless, inexplicable or intelligible.
Common Law Exceptions: Statements Forming Part of the Res Gestae

¨ Two res gestae exceptions which are of

contemporary significance in criminal cases
are:
¨ excited utterances by participants in or
observers of events (see Thompson Trevanion
v R (1693) Skin 402; Ratten v R [1972] A. C.
378 PC; R v Bedingfield (1879) 14 Cox CC
341); and
¨ contemporaneous statements of the physical
or mental state of the declarant.
Common Law Exceptions: Confessions

¨ Since the development of this common law exception,

and in Kenya, up to 2003, confessions presented
problems rather different from those traditionally
associated with hearsay, dealing largely with the
manner in which the confession had been obtained.
¨ Most of the reliability challenges associated with
informal or out-of-court confessions in Kenya were
resolved by Statute Law (Miscellaneous Amendments)
Acts Nos. 5 of 2003 and 7 of 2007, which introduced
the current section 25A of the Evidence Act.
Common Law Exceptions: Evidence Given in Former Proceedings

¨ At common law, a statement concerning a particular

issue made by a witness whether orally or in a
document in the course of giving evidence in
proceedings is admissible on the same issue in
subsequent proceedings between the same parties or
those privy to them if the witness in question was
subject to cross-examination and is dead or otherwise
unable to attend the subsequent proceedings.
¨ This common law exception to the hearsay rule has
been codified into section 34 of the Kenyan Evidence
Act.
The Rule Against Hearsay: Selected Illustrative Cases

¨ In Sparks v R [1964] A. C. 964, the appellant, a white

man aged 27, was convicted of indecently assaulting
a three-year-old girl.
¨ The girl did not give evidence at the trial.
¨ The trial judge (of the Supreme Court of Bermuda)
ruled as inadmissible hearsay evidence by the girl’s
mother a statement made by the child shortly after
she was assaulted that, “ it was a coloured boy.”
¨ The appellant argued that the words by the child
ought to have been admitted either as evidence of
identity (of the attacker) or as part of the res gestae.
The Rule Against Hearsay: Selected Illustrative Cases

¨ Held (allowing the appeal on other grounds):

¨ the mother’s evidence of what the child had said to her
would have been hearsay evidence, and the child having
neither given evidence nor said anything in the presence of
the appellant, there was no basis upon which her statement
to her mother could be admitted. Further, even if any basis
for its admission could be found, the evidence of the
making of the remark would not be any evidence of the
truth of the remark.
¨ There was no rule which permitted the giving of hearsay
evidence merely because it related to identity.
¨ It was not possible to say that the words alleged to have
been spoken by the child were so closely associated with
the assault in time, place or circumstances that they were
part of the res gestae.
The Rule Against Hearsay: Selected Illustrative Cases

¨ In Myers v DPP [1965] A. C. 1001, the Appellant had

been convicted of offences relating to the theft of motor
vehicles.
¨ The prosecution’s case was that the Appellant would
buy a wrecked car, steal a car resembling it, disguise the
stolen car so that it corresponded with the particulars
of the wrecked car as noted in its logbook, and then sell
the stolen car with the log book of the wrecked one.
¨ The prosecution case involved proving that the
disguised cars were stolen by reference to the cylinder
block numbers indelibly stamped on their engines. To
achieve this, the prosecution sought to adduce evidence
derived from records kept by a motor manufacturer.
The Rule Against Hearsay: Selected Illustrative Cases

¨ An officer in charge of the manufacturer’s

records was called to produce microfilms which
were prepared from cards filled in by workmen
on the assembly line, and which contained the
cylinder block numbers of the cars
manufactured.
¨ The Court of Criminal Appeal held that the trial
judge had properly allowed the evidence
because of the circumstances in which the record
was maintained and the inherent probability
that it was correct rather than incorrect. On
appeal to the House of Lords—
The Rule Against Hearsay: Selected Illustrative Cases

¨ Held :
1. It was established law that as a general rule hearsay
evidence was not admissible, and that authority
must be found to justify its reception within some
established and existing exceptions to the rule.
2. To countenance new exceptions to the rule against
hearsay would have amounted to judicial legislation.
3. The records could not be brought within the
exception relating to public documents open to
public inspection (as they were private documents)
or any other established exception to the rule
against hearsay.
The Rule Against Hearsay: Selected Illustrative Cases

4. Accordingly, the records constituted inadmissible hearsay

evidence, because the entries on the cards and contained in
the microfilms were out-of-court assertions by unidentified
workmen that certain cards bore certain cylinder block
numbers. To this extent, the officer called could not prove
that the records were correct and that the numbers they
contained were in fact the numbers of the cars in question.
5. (Per Lord Reid) The hearsay rule was “absurdly technical.”
Nonetheless, “no matter how cogent particular evidence
may seem to be, unless it comes within a class which is
admissible, it is excluded.” Accordingly, the reasoning of
the Court of Criminal Appeal, though undeniable as a
matter of common sense, was irreconcilable with the
existing law.
The Rule Against Hearsay: Selected Illustrative Cases

¨ NB:
1. The significance of the decision in Myers v DPP is that it
confirms the applicability of the rule against hearsay to
written statements, and that hearsay evidence is not
excluded because it lacks logical probative value.
2. The House of Lords was divided on whether the
evidence in Myers v DPP should have been admitted by
the creation of a new exception to the hearsay rule
(they eventually ruled that the creation of new
exceptions to the hearsay rule should be left to
Parliament), but were unanimous in dismissing the
appeal on the grounds that the other evidence of guilt
being overwhelming, there was no substantial
miscarriage of justice.
The Rule Against Hearsay: Selected Illustrative Cases

3. The decision in Myers v DPP was reversed by the

UK Criminal Evidence Act 1965, which provided
for the admissibility of certain hearsay
statements contained in trade or business
records (see Adrian Kean at p. 223). Section 1 of
the Criminal Evidence Act 1965 provides:
– “1. In any criminal proceedings where direct
oral evidence of a fact would be admissible, any
statement contained in a document and
tending to establish the fact shall, on
production of the document, be admissible as
evidence of that fact if—
The Rule Against Hearsay: Selected Illustrative Cases

• (a) the document is, or forms part of, a record relating to any
trade or business and compiled, in the course of that trade or
business, from information supplied (whether directly or
indirectly) by persons who have, or may reasonably be supposed
to have, personal knowledge of the matters dealt with in the
information they supply; and
• (b) the person who supplied the information recorded in the
statement in question is dead, or beyond the seas, or unfit by
reason of his bodily or mental condition to attend as a witness, or
cannot with reasonable diligence be identified or found, or cannot
reasonably be expected (having regard to the time which has
elapsed since he published the information, and to all the
circumstances) to have any recollection of the matters dealt with
in the information he supplied.”
The Rule Against Hearsay: Selected Illustrative Cases

4. Sections 33 (b) and 35 of the Kenyan Evidence

Act provides for admissibility of hearsay
evidence contained in documents written in the
ordinary course of duty or business. The
sections would appear to mitigate the absurdity
of the hearsay rule as applied in Myers v DPP, but
they are less satisfactory compared to the
English Evidence Act 1965, as they are arguably
limited to instances where the maker of the
document is deceased, cannot be found etc.
5. In the UK, the hearsay rule was abolished in civil
cases by the Evidence Act 1995.
The Rule Against Hearsay: Selected Illustrative Cases

¨ In Chandra-sekera v R [1937] A. C. 220 PC, a

woman whose throat had been cut was unable
to speak owing to the nature of the injury. She
was fully conscious, however, and able to
understand what was said to her, to make signs
and nod her head slightly.
¨ After making certain signs which, it was
alleged, possibly indicated the appellant, she
was asked the direct question whether it was
the appellant who had cut her throat. In
response to that question, she nodded her
head, and died shortly afterwards.
The Rule Against Hearsay: Selected Illustrative Cases

¨ Held:
¨ Evidence as to the signs made by the deceased in
answer to questions put to her was admissible, but the
statements of the witnesses as to what interpretation
they put upon the signs was inadmissible.
¨ The direct question to the deceased whether it was the
appellant and her nod of assent constituted a verbal
statement made by her within the meaning of section
32 of the Ceylon Evidence Ordinance, 1895 (pari
materia to section 33 (a) of the Kenyan Evidence Act
and section 32 of the Indian Evidence Act 1872), and as
such was admissible in evidence under that section.
The Rule Against Hearsay: Selected Illustrative Cases

¨ In Patel v Comptroller of Customs [1966] A. C. 356 PC,

the appellant imported from Singapore into Fiji bags
of coriander seed and correctly engrossed the
Customs Import Entry Form in accordance with the
particulars contained in the invoice.
¨ Five bags were found each to be contained in an
outer bag marked with the appellant's trade name,
but the inner bags had written on them:
"Alberdan/A.D. 4152/Coriander Favourite Singapore"
and at the base of them the legend "Produce of
Morocco."
¨ In the Customs Import Entry Form, the country of
origin was stated to be India.
The Rule Against Hearsay: Selected Illustrative Cases

¨ The appellant was charged with making a false

declaration in a Customs Import Entry Form
produced to an officer of customs contrary to
section 166 of the Fiji Customs Ordinance, in that
in respect of the five bags instead of declaring
the origin of the seed to be Morocco he declared
it to be India.
¨ Held: the only evidence purporting to show that
the entry was false was the legend "produce of
Morocco" written on the bags; and the words
from an evidential point of view were
inadmissible against the appellant as hearsay.
The Rule Against Hearsay: Selected Illustrative Cases

¨ In Wright v Doe d Tatham (1837) 7 AD & EI

313 , a testator by his will bequeathed his
properties to his servant (the appellant).
¨ In order to vacate the bequest to the servant,
the testator’s heir and beneficiary (the
respondent) filed a suit to set aside the
testator’s will, arguing that:
¨ the testator was a congenital idiot incapable of
managing his affairs and insane, hence lacked
animus testadi; and
¨ the will was procured by fraud on the part of the
servant.
The Rule Against Hearsay: Selected Illustrative Cases

¨ In order to prove that the testator was sane, the

appellant sought to adduce evidence of letters
written to the testator by certain third parties
(who had predeceased the testator), in terms from
which it could legitimately be inferred that they
regarded him as sane.
¨ Held: The letters constituted inadmissible
hearsay because they were adduced to assert the
proof of a matter (sanity) which was the opinion
of a person outside of the court; Evidence is
hearsay if beliefs are implied from conduct of
persons not in the courtroom and not under oath.