Hearsay and Confrontation in Criminal Trials

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

1
The Rule Against Hearsay in Criminal Trials

DEFINITION AND ILLUSTRATIONS

'Little to do, and plenty to get, I suppose?' said Serjeant Buzfuz, with jocularity.

'Oh, quite enough to get, sir, as the soldier said ven they ordered him three hundred and fifty lashes', replied Sam.

'You must not tell us what the soldier, or any other man, said, sir', interposed the judge; 'it's not evidence'.

'Wery good, my lord', replied Sam.

In as much as it implies that any narration by a witness of a statement made by another is prohibited, this depiction of the rule against hearsay by Charles Dickens in The Pickwick Papers1 is misleading. The rule against hearsay prohibits a witness from reporting a statement made by another person only where the purpose of adducing evidence of the statement is to establish the truth of any fact asserted in that statement.2 A clear-cut and uncontroversial application of the rule in a criminal trial might be as follows. The prosecution wishes to prove that the car seen at the scene of a crime was red. The hearsay rule renders inadmissible the testimony of a prosecution witness, W, that 'X said that the car was red'. If, however, the testimony is to be adduced to prove, not that the car was red, but that X could speak, then it would not be rendered inadmissible by the hearsay rule. To take another example, suppose that the issue in a case is whether Y was still alive at a particular time. Testimony from a witness that she heard Y shout 'I'm alive' at that time would not be excluded by the hearsay rule,

____________________
1
C. Dickens, The Pickwick Papers ( 1972, 1st pub. 1836-7), ch. 34.
2
In R. v. Sharp [ 1988] 1 All ER 65, 68 the House of Lords endorsed the following definition of the hearsay rule in the 6th edn. ( 1985) of Cross on Evidence: 'an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted' (emphasis in original). Julius Stone 'defines hearsay as an assertion used testimonially, which was not made under oath and subject to cross-examination in the very trial at which it is used' ( J. Stone (rev. W. A. N. Wells), Evidence: Its History and Policies ( 1991), 314).

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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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