Hearsay and Confrontation in Criminal Trials

By Andrew L.-T. Choo | Go to book overview
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If there is one general theme that emerges from the diverse issues examined in this Chapter, it is that the strict application of the hearsay rule is, potentially, much more far-reaching than is commonly realized. In order, however, to reach particular results considered to be desirable, courts have resorted on occasion to what one commentator terms 'hearsay-fiddles'.138 These involve, inter alia, the deliberate turning of a blind judicial eye to hearsay issues where considerations of necessity and convenience suggest that a piece of cogent, but technically hearsay, evidence should be left to the jury. 'Hearsay-fiddles' have been resorted to, for example, in cases involving evidence of the identification of persons. Decisions such as McLean demonstrate, however, that in analogous cases not involving the identification of persons, the hearsay rule has been applied with full vigour.

Mechanisms such as the 'unsafe and unsatisfactory' test may also be utilized to ameliorate the harshness of a strict application of the hearsay rule. We have seen that the exclusion of evidence of a third-party confession may in certain circumstances be held to render a conviction unsafe and unsatisfactory. However, here again, an inconsistency arises from the fact that the use of the 'unsafe and unsatisfactory' mechanism has apparently been confined to evidence of third-party confessions, and has not been extended more generally to exculpatory hearsay evidence sought to be adduced by the defence.

Even if they were employed more generally and consistently, devices such as 'hearsay-fiddles' and the 'unsafe and unsatisfactory' mechanism do not represent a satisfactory solution. The use of 'hearsay-fiddles', for example, gives the law an air of hypocrisy, while the device of declaring a conviction unsafe and unsatisfactory at the appeal stage is inadequate compensation for the failure of the law to develop proper principles for application at the trial stage. What is clearly preferable is an approach which requires trial judges to determine admissibility by reference to whether the four 'hearsay dangers' are, in the context of the particular case, sufficiently low to render the evidence reliable enough for the jury's consideration. This idea will be developed at greater length in the succeeding Chapters.

D. J. Birch, "'Hearsay-Logic and Hearsay-Fiddles: Blastland Revisited'", in P. Smith (ed.), Criminal Law: Essays in Honour of J. C. Smith ( 1987).


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