Report No. 69

VII. Constitutional Aspect

26.40. Constitutional position in U.S.A.-

In some countries, the rule against hearsay may have a constitutional aspect. For example, in the United States, certain aspects of the rule against hearsay are recognised in the Constitution, inasmuch as the concern for reliability and the focus on the importance of cross-examination, which constitute some of the principle reasons for excluding hearsay, also seem to be the hallmark of the Sixth Amendment.1 That amendment ensures to each defendant the right "to be confronted with the witnesses against him" The Sixth Amendment is also intended to ensure that the trier of fact a has satisfactory basis of evaluating the truth of the statement2 made before him.

1. David S. Davenport Co-conspirator Exception, (1973) 85 Harvard Law Review 1378-1379.

2. Dutton v. Evans, (1970) 400 US 74 (89).

26.41. A constitutional reassessment of every established hearsay exception the question arises-for example, in relation to the "co-conspirator" exception would obviously not be attempted by the court even in the U.S.A. But, where (analogous to our section 10)-it may become necessary to consider how far the exception is in harmony with the confrontation clause.

VIII. Exceptions

26.42. Exceptions as product of conflicting theories.-

In course of time several exceptions to the rule against hearsay have evolved. Their broad rationale is this If the statement was made under conditions which indicate that the court trying a question of fact could give it appropriate probative value, the statement might be received although the adversary was denied the opportunity to cross-examine and expose the possible defects attributable to the other dangers of perception, memory and communication attendant on a description of a past event.

26.43. The existing hearsay rule, with its numerous exceptions, is, thus, a product of conflicting, theories: the adversary system of litigation and distrust of tilt ability of the court to properly evaluate the evidence-when given in the form of hearsay (on the one hand) and the need for obtaining the truth (on the other hand). Hearsay ordinarily lacks the guarantee of truth. But exceptions to the hearsay rule have been recognised where, in addition to the necessity of receiving cogent evidence in cases where no other evidence is avail able, circumstances in which the hearsay statements were made are such as to give them the guarantee of trustworthiness.1

1. Baker Hearsay Rule, (1950), p. 119.

26.44. In Sugden v. Lord St. Leonards, sugden v. Lord St. Lenards, (1876) 1 PD 154 (224, 240, 241). Cockburn C.J. and Jessel, M.R., formulated the general principles on which the accepted hearsay exceptions were based They were concerned with post-testamentary statements, of a deceased testator but the discussion is of general interest. Cockburn, C.J., in particular, pointed out that such statements were usually made honestly and that, as in the case of the other exceptions for declarations made by deceased persons, the testator had peculiar means of knowledge and might be supposed to have been without a motive to falsify.

26.45. Haphazard development elsewhere but not in India.-

It may be true to say, of the position in England, that no single principle will explain all existing exceptions at common law, and that judicial refinements of the exceptions over a long period of time have added little to the clarity-many of the exception may be viewed as solely the product of history.1 But, in India, the law on the subject is codified,2 and all exceptions to the vile against hearsay derive their force from statutory provisions. While some of the exceptions, as found in the codified law in India, may not have been couched in very satisfactory language,3 and while a few of them are rather widely expressed,4 it cannot be said that they are the mere products of history. The haphazard and stultified development of the exceptions, which has produced a highly technical and often unsatisfactory rule elsewhere, is not found in India.

1. But see Ares v. Venner, (1970) SCR 608 (Canada).

2. Sections 32 to 35, for example.

3. E.g. see discussion as to section 32, supra.

4. Sections 32(1) and 32(7), for example.

IX. Criticism

26.46. It would be apparent from the above discussion that the general pattern at common law was to recognise exceptions to the rule against hearsay where it was not possible to comply with the three ideal conditions-oath, cross examination and personal presence of the witness in court so that his demeanour could be observed. But the rule as such survived, the solution evolved being a general rule which excludes hearsay but which is subject to specific exceptions under special circumstances.

26.47. Of late, however, there has been considerable criticism of the rule and it is convenient, at this stage, to note the principal grounds of criticism. These grounds may be said to refer to-(a) the court, (b) the witnesses and (c) the shape Of the law:

(a) The one principal ground of criticism has been that where the person who knew the facts is not available by reason of death or otherwise and his knowledge is excluded from the cognizance of the court, then the rule results in injustice. It is sometimes stated that the rule deprives the court of material which would be of value in ascertaining the truth. This is really another way of staling the above aspect.

(b) Then, the rule, it is stated, often confuses witnesses and prevents them from telling their story in the witness box in the natural way.

(c) Thirdly, the rule adds greatly to the technicality of the law of evidence, because of its numerous exceptions, in addition to those provided in the statutory provisions.

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