Report No. 69

Chapter 26

Hearsay-Whether Basic Changes Needed

I. Introductory

26.1. Scope of the Chapter.-

In this chapter, we propose to consider the fundamental question whether any basic changes are needed in the rule against hearsay. In general, the rule prohibits the use, at the trial, of a statement made out of court where the use is of a substantive character-i.e. to prove the truth of its contents. There are various definitions of the rule; but it is not necessary to discuss them for the present purpose, since the difference between the various formulations is one of detail. The statement as to the rule, made above, represents, in a broad sense, an area as to which there is no serious controversy.

26.2. Hearsay-Caricature by Dickens.-

In the Pickwick Papers, Dickens1 has caricatured a trial involving the rule excluding hearsay. But the caricature is rather of the Judge than of the rule. This is the dialogue-

"'I believe you are in the service of Mr. Pickwick, the defendant in this case. Speak up if you please, Mr. Weller.'

'I mean to speak up, Sir', replied Sam. 'I am in the service of that 'ere gen'

I' man, a very good service it is.'

'Little to do, and plenty to get, I suppose?' Said enough to get, sir, as the soldier said when they order him three hundred and fifty lapses,' replied Sam.

'You must not tell us what the soldier, or any other man said, sir', inter-posed the judge, 'its not evidence.'

'Very good, my Lord', replied Sam."

This has been described, as a "golden sentence" about the law of evidence2 though Charles Dickens did not love lawyers overmuch and had little practical experience of the law3.

1. The account of Bardell v. Pickwick.

2. Note in (November 1932) 74 LJ 309.

3. Note in (November 1932) 74 14 309.

26.3. Examples from some other countries.-

It may be noted that the rule against hearsay is not confined to the Anglo-American system of law. In some form or another, substantially the same effect is achieved by the provisions in force in many other countries. In Czechoslovakia, for example, examination of the witness in court is insisted upon by reason of the principle of "directness and orality", which means that the court shall decide according to evidence put forward before it, and draw inferences from sources nearest to the facts to be ascertained1 There is also the principle of objective truth, which means that all legally important circumstances should be ascertained in harmony with the objective reality; and this principle, as expressed in the Constitution of Czechoslovakia, states that the real state of the affairs must be ascertained.2

1. Chang Criminology, (1976), Vol. 1, p. 248.

2. Chang Criminology, (1976), Vol. 1, p. 248.

26.4. It would appear that in Japan, a written statement, either of a witness or of the accused, to the police or the public prosecutor is admissible in evidence only if the defendant and the defence counsel give consent for its submission to the court.1 The implications of this seems to be that hearsay evidence is not admissible in the absence of such specific exceptions.

1. Change Criminology, (1976), Vol. 2, p. 619.

26.5. Hearsay-rationale of.-

The most important reason for prohibiting hearsay is the apprehension that the absence of an opportunity for the adversary to challenge the perception, memory and veracity of the original declarant will affect the quality of the evidence.1

1. Mc Cormick Handbook of the Law of Evidence, (1954) 457, 459, cited in The Supreme Court, 1969 Term, (1970) 84 Harvard Law Review 32, 109, footnote 6.

26.6. We shall examine in detail later the rationale of the rule. But the reason stated above may be said to summarise its important features, with this addition that while, in general, contemporaneous cross-examination is considered necessary provide an effective opportunity to test the truthfulness of the statement,1 on the other hand, the fact that the declarant is before the court, is also not to be brushed aside .2

1. (a) Bridges v. Nixon, (1945) 326 US 135 (154); (b) Douglas v. Alabama, (1965) 380 US 415 (420).

2. "Confrontation and the Hearsay Rule", (1966) 75 Yale LJ 1434, 1436.

26.7. There is also another aspect of the rule against hearsay, namely, that upholding convictions based on unworn hearsay testimony1 is a practice which runs counter to the notions of fairness on which our legal system is founded. In he United States, even before the Constitution, the doctrine developed at common law that a hearsay statement could only be used as corroboratory and confirmatory of other evidence, and "a hearsay statement by itself, can condemn no man".2

1. Bridges v. Nixon, (1945) 326 US 135 (153, 154).

2. Wigmore on Evidence, Vol. 5, Article 1364, pp. 17-18, cited in Note The Supreme Court, 1969 Term, (1970) 84 Harvard Law Review 32, 117, footnote 35.

26.8. Principle.-

After all is said and done, the essential principle against hearsay seems to be that the judiciary should be furnished with trustworthy data, and if matter which cannot be impartially considered and fairly valued is allowed to go on the record, then this function of the judiciary is impaired. Of course, where the data otherwise relevant are available only through statements which could not be subjected to the normal tests of truthfulness, it becomes important for the law to determine how far they should be accepted, and, in coming to a decision as to how far they should be accepted, the law has to strike a balance between the need or bringing the truth to the fore on the one hand, and the need not to expose the judicial agency to any danger of being misled as to facts, on the other hand.

26.9. Unfairness.-

There is something innately unfair, and reminiscent of trial by affidavit, in a process that allows the prosecutor to build a case with hearsay while the defendant is forced to scramble about and exhaust his own, often scarce, resources to attempt to produce the declarants.1

1. Snyden v. Vass, (1934) 291 US 97 (107) (Cardozo, J.).

26.10. Oath and cross-examination.-

The sanctity of oath as a powerful stimulus to the speaking of truth may be a matter of debate, inasmuch as a deliberate promise by a witness to tell the truth may not necessarily be performed by the witness. But it cannot, in general, be denied that effective and competent cross-examination can expose willful falsehood as also the faults of memory and perception.

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