Hearsay and Confrontation in Criminal Trials

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


CONCLUSION

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

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149
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.'
150
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.

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