Hearsay and Confrontation in Criminal Trials

By Andrew L.-T. Choo | Go to book overview

Preface

The rule against hearsay has traditionally been regarded as one of the most fundamental, and at the same time most confusing, of the rules of evidence. In civil trials, the provisions of the Civil Evidence Act 1968 have had the effect of substantially liberalizing the operation of the hearsay rule. In the criminal sphere, however, there is no such wide-ranging legislation, and the House of Lords reiterated in 1992 that reform of the hearsay rule was a matter for the legislature rather than for the courts. The Runciman Royal Commission on Criminal Justice, reporting in 1993, called for greater admissibility of hearsay evidence.1 The Law Commission's consultation paper on criminal hearsay,2 published in July 1995, also recommends radical restructuring of criminal hearsay doctrine.

The present work is confined to an examination of the operation of the hearsay rule in criminal trials. No attempt is made, however, to provide an exhaustive discussion of the operation of the rule in criminal trials in England. Thus, the book should not be regarded as a substitute for the expositions of the subject that are to be found in specialized journal articles and in textbooks. Much writing on hearsay evidence in England has tended to focus on the merits and demerits of individual decisions, and on highlighting the internal inconsistencies in the law. My intention here is to take matters further by providing a more principled discussion of the subject. Two underlying themes in the book are, first, the rationales on which the hearsay rule in criminal trials is premised, and, secondly, reform of the rule. Whilst the legal position in trials on indictment in England provides the basis for much of the discussion in the book, the position in a variety of other jurisdictions is examined where it is felt that such examination throws light on the particular matter under discussion. The position in the United States is particularly instructive, for, as Tapper has remarked, 'there can be no doubt that [the law of evidence] has been far further explored there than in any other common law jurisdiction, and no part of it more deeply than the theoretical basis and practical application of the hearsay rule'.3

Several people have assisted me in the writing of this book. Amongst these are Professor Andrew Ashworth of the School of Law of King's College,

____________________
1
Royal Commission on Criminal Justice, Report (Cm 2263) ( 1993), 125.
2
Law Commission (Consultation Paper No. 138), Criminal Law--Evidence in Criminal Proceedings: Hearsay and Related Topics--A Consultation Paper ( 1995).
3
C. F. H. Tapper, "'Hillmon Rediscovered and Lord St. Leonards Resurrected'" ( 1990) 106 Law Quarterly Review 441, 443.

-vii-

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Hearsay and Confrontation in Criminal Trials
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction v
  • Preface vii
  • Contents ix
  • Table of Cases xi
  • Table of Statutory Material xxii
  • 1 - The Rule Against Hearsay in Criminal Trials 1
  • 2 - The Rationales for the Rule 11
  • Conclusion 42
  • 3 - The Hearsay Rule in Operation (and Inoperation) 44
  • Conclusion 73
  • 4 - Implied Assertions 74
  • Conclusion 100
  • 5 - Common Law Exceptions to the Hearsay Rule 102
  • Conclusion 141
  • 6 - Statutory Exceptions to the Hearsay Rule 143
  • 7 - Reform Options 163
  • 8 - Conclusion 192
  • Appendix A: United States Federal Rules of Evidence 201
  • Appendix B: Evidence Act 1995 (Commonwealth of Australia) 207
  • Appendix C: Law Commission Consultation Paper--Suggestions for Reform 214
  • Bibliography 217
  • Index 231
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