Does Information Given to a Police Officer During Investigation of a Crime Amount to Hearsay Evidence? – A Response to Prof. Wole Soyinka.
By Faruq Adio Anifowose
A few days ago, I came across a video recording of the proceedings before the Oputa Panel in 1999, during which Prof. Wole Soyinka was cross-examined by learned senior counsel, Barrister Ken Ikonne.
This write-up is not intended to discuss the circumstances that led to Prof. Wole Soyinka’s appearance before the Panel or the reasons for the constitution of the Panel. Rather, the focus is to address a question raised by the Noble Laureate during the cross examination. The question raises an important issue in the law of evidence particularly on the admissibility of information given to a witness by another person and subsequently, intended to be relied upon during the court proceedings.
Brief Background to the Question Raised
It happened that Prof. Wole Soyinka had testified that certain events allegedly occurred in Nigeria on specific dates. The learned counsel, during the cross examination, asked Prof. if he was physically present in Nigeria when those events occurred. Apparently, the question was intended to establish that Prof.’s testimony concerning those events was based on information he received from other persons who were not called as witnesses, rather than his personal knowledge, thereby raising the issue of hearsay evidence.
Answering the question, the Prof., in an analogical manner, posed a question to the learned counsel, “WOULD YOU SAY THAT AFTER A POLICE HAS BEEN INFORMED ABOUT A CRIME AND THEY INVESTIGATE, THAT IT IS STILL HEARSAY?”.
The learned counsel did not respond to the question. It is necessary to make a clarification here that the learned senior counsel was not under any obligation to answer such question. This should not be misconstrued as an attempt to evade the issue raised by Prof. A lawyer while cross-examining a witness is not in the position to answer questions asked by the witness neither can a witness take over the questioning as the roles are strictly defined – counsel asks the questions and the witness provides the answers.
Now, to address the question posed to the counsel by Prof.: whether after a police officer had been given information and then investigates, such information can still be regarded as hearsay?
The starting point is to define what hearsay evidence is.
Meaning and Admissibility of Hearsay Evidence
Section 37 of Evidence Act 2011 defines hearsay evidence as
“an oral or written statement made otherwise than by a witness testifying in a proceeding or contained or recorded in a book, document or any record whatsoever, proof of which is admissible under any provision of the Act and is tendered in evidence for the purpose of proving the truth of the matter stated in it”.
Regarding the admissibility of such an evidence, Section 38 of Evidence Act 2011 unequivocally states that hearsay evidence is generally inadmissible except where it satisfies the statutory exceptions.
The Court, in Aminu v. Ogunyebi[1], held thus;
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made”
From the foregoing statutory provisions and judicial pronouncement, it is discernible that ordinary making of statement or giving information to another person does not automatically render such an information or statement hearsay. However, where such information or statement is now being testified to, the question as to whether it is hearsay arises.
To settle this, the court, in the above case unequivocally stated that where such an information is used to establish the fact that the information was given, it is not hearsay. But where the information is used to establish the truth of the information, it will be clothed by hearsay and will not be admissible.
Going forward is that the information received by a police officer as to the occurrence or commission of a crime does not automatically metamorphose into hearsay. The determining factor is the purpose for which the evidence of that statement is adduced in court.
When Does the Information Given to an Investigating Police Officer Amount to Hearsay?
The information given to a police officer will not necessarily amount to hearsay in the following circumstances:
- Where such a police officer testifies to their own actions such as visiting the crime scene personally, recovering exhibits, or their personal observations during the investigation.
- Where such an information is used to explain the investigative steps taken such as the arrest, search or follow a lead or other investigative steps. In this circumstance, the information is not being relied upon to establish the truth of its content but to explain the subsequent conducts of the officer.
- Where such an information has been admitted or confessed to by the defendant. Though, this will still depend on compliance with the rules governing admissions and confessions.
Conversely, the information will amount to hearsay where the police officer repeats the contents of the information received solely for the purpose of establishing the truth of the facts contained in the information, without calling the informant as a witness.
Plethora of cases has shown where courts have painstakingly journeyed into where the evidence of a police officer or IPO becomes hearsay.
In Brilla Energy Ltd. v F.R. N[2], the court held that;
“Evidence of an investigating police officer of facts he personally saw or discovered in the course of his investigation is not hearsay evidence to render such facts inadmissible.”
Similarly, in Ugoala v The State of Lagos[3], the Court of Appeal held thus:
“The evidence of an investigating police officer is not hearsay, as his testimony gives evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator.”
These decisions reveal that the admissibility of an investigating policer’s testimony is not determined merely by the fact that such an officer was not an eyewitness to the crime. Rather, what needs to be carefully considered is the particular facts testified to and whether they are within the officer’s personal knowledge or are repetition of another person’s statement.
Mention need be made here that the fact that a police officer records a statement in an official case file does not throw away the feature of hearsay in such statement. If during proceedings, the officer tries to use such statement to prove the commission of crime, it will become hearsay. An illustration is that if Emeka tells the police that “I saw Ade shoot Bayo”, the police cannot stand in the witness box and testifies that Ade shot Bayo because Emeke told him so. To wash out the feature of hearsay from this testimony is that Emeka himself must come to the court to testify that he really saw Ade shooting Bayo and face the cross-examination.
It would be correct to say that once a police officer acts on an information, and investigate, anything they personally observe or recover during the investigation, cannot be regarded as hearsay. An illustration is that where an informant tells a police officer, “There are stolen phones in Ade’s house”. This statement itself is a hearsay. But if the police officer proceeds to get a search warrant, searches Ade’s house and finds the phone and the police officer testifies thus: “I searched Ade’s house and recovered these stolen phones”, this testimony cannot be regarded as hearsay. It is the direct evidence of what the police officer personally did and saw.
The information that triggered the investigation remains hearsay if the police officer uses it during the proceedings to prove the commission of the crime without calling the informant to testify himself. This is the bottom line!
Conclusion
To answer the Noble Professor’s question is to say that where the information given to the police officer before he investigates is used to establish the occurrence of an event without calling the informant, such constitutes hearsay and will generally not be admissible to prove the fact that it happened. However, where the information is to establish that the information was received by the officer, then such does not constitute hearsay.
Turning to the question that gave birth to this write-up, Prof. Wole Soyinka’s response to the learned senior counsel, was that he was not in Nigeria when the events occurred but had received the information which he subsequently investigated. Referring to the earlier discussions, if Prof. intended to rely solely on the information he received, to establish the fact that the events really occurred, such would raise the issue of hearsay. However, if his intention was to establish that the information was communicated to him, or to testify to facts personally discovered in the course of his personal investigation, the question of hearsay may not arise.
The rationale behind the general inadmissibility of hearsay evidence is to ensure that evidence to be relied upon to establish the truth of a fact is scrutinized judicially as parties must be protected from unverified allegations, information and statements. Where a statement is made by a person who is not called to testify, the opposing party has been automatically denied the opportunity of testing the credibility and accuracy of the statement through cross-examination. Consequently, a person who has direct knowledge of the facts in issue is in the best position to testify, rather than having another person repeating the information.
ENDNOTES
[1] (2004) 10 NWLR (Pt. 882) 457
[2] (2018) 16 NWLR (Pt. 1645) 305
[3] (2021) 3 NWLR (Pt. 1763) 263
ABOUT THE AUTHOR
Faruq Adio Anifowose is a dedicated and results-oriented legal practitioner who leverages his skills and training to deliver exceptional legal services to clients. He is a Trainee Associate in the Dispute Resolution Department of S.P.A. Ajibade & Co where he provides legal services in commercial litigation, insurance, aviation, arbitration, debt recovery, employment disputes and contractual claims. He is the founder of LexEase, an initiative established under H-M Multi Concepts duly registered with CAC, to simplify legal journey for law aspirants, law students and legal practitioners. Through dedication to excellence and a commitment to continuous professional development, Faruq Anifowose has authored several articles which include:
- Reopening Concluded Cases in the Interest of Justice: Lessons from South Korea for Nigeria.
- The Legal Implication of Releasing Sex Tapes in Nigeria: A Case Study of FUOYE SUG President – Ogbeni Adio.
- Criminalization of Cash Payment Method in Real Estate Transactions
He can be reached on [email protected], 09060973120 or 09053660024.
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