Hearsay and Confrontation in Criminal Trials

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

accused persons to be treated with dignity. Moreover, the dignity of witnesses other than the accused is also respected by the hearsay rule: the phenomenon of witnesses testifying in court and being subject to cross- examination reinforces the moral significance of the role of witnesses in the trial process.149 This is particularly true in the case of a witness who is also the alleged victim, since the phenomenon of a victim 'accusing' the defendant in person, in the formal setting of a courtroom, is of considerable symbolic importance.150 However, special considerations might, of course, apply in the case of vulnerable witnesses such as child witnesses.

Fourthly, it has been argued that the hearsay rule protects the value of equality in criminal proceedings. An important measure of equality is whether opportunities are equally available to both parties in a trial to influence the decision in the case. Contemporaneous cross-examination is regarded as a means by which the decision in a case might be influenced. Where hearsay evidence is adduced, however, such contemporaneous cross- examination is not possible, and thus the opportunity of the opponent of the evidence to influence the decision is unequal. For the opponent to have to call the declarant as a witness is 'a burden, a gamble, and a strategic risk'. 151


It has been demonstrated in this Chapter that the rule against hearsay may be justified by reference to both intrinsic and extrinsic policy considerations. The assumption that hearsay evidence is inherently unreliable, and should therefore be excluded, is rationalized in the following manner. Any statement may be unreliable because of defects in perception, memory, sincerity, or narration. In the case of an in-court statement, however, the demeanour of the maker of the statement will have been able to be observed, the statement will have been made on oath, and the maker of the statement will have been able to be subjected to 'contemporaneous' cross- examination. But this is not so in the case of a hearsay statement, and thus the four 'dangers' of faulty perception, erroneous memory, insincerity, and ambiguity in narration continue to be applicable to such a statement. We

K. W. Graham, jun., "'The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One'" ( 1972) 8 Criminal Law Bulletin99, 133: 'The idea that one who accuses another of wrong ought to do so in a forum where he assumes the consequences of his statement has sufficient power that no amount of cynical sneering about the utility of the oath, incidence of perjury prosecutions, or the value of cross-examination will suffice to overcome it as an important symbol of fairness.'
E. Swift, "'Smoke and Mirrors: The Failure of the Supreme Court's Accuracy Rationale in White v. Illinois Requires a New Look at Confrontation'" ( 1993) 22 Capital University Law Review145, 172-3.


Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this page

Cited page

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
Hearsay and Confrontation in Criminal Trials


Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 244

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?