Hearsay and Confrontation in Criminal Trials

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

If what one should be concerned with is 'objectively manifested intent'114 rather than actual intent, there seems little point in pretending that one is trying to determine the latter. If the rationale of the 'intent' test is to expose insincerity, perhaps the preferable approach would be simply to focus squarely upon the issue of whether the danger of insincerity in the particular case is sufficiently grave to justify withholding the evidence from the jury, than to use the (fictional) vehicle of 'intent'. And if we are isolating insincerity as a hearsay danger deserving of such treatment, should we not, for the sake of consistency, subject all hearsay dangers to the same type of analysis? What is rapidly emerging, therefore, is a strong argument in favour of a functional approach based on an examination of all four hearsay dangers in the context of the particular case.


CONCLUSION

In this Chapter we have examined three possible approaches to the problem of implied assertions. The most inflexible of these is the approach advocated by the House of Lords in Kearley: implied assertions fall automatically within the scope of the hearsay rule. This approach is a potentially far- reaching one, as it is theoretically possible for countless facts to be inferred from words or conduct.115 Yet two types of evidence examined in the previous chapter--evidence of false statements and evidence of silence-- have not hitherto been considered to be caught by the implied assertions

____________________
Duquesne Law Review 741, 761 ff. See the criticisms of such an objective approach in O. G. Wellborn III, "'The Definition of Hearsay in the Federal Rules of Evidence'" ( 1982) 61 Texas Law Review49, 76-7.
114
E. W. Cleary (ed.), McCormick on Evidence ( 3rd edn., 1984), 732, n. 2.
115
See US v. Long, 905 F.2d 1572, 1580 (DC Cir. 1990) ('It is difficult to imagine any question, or for that matter any act, that does not in some way convey an implicit message'); A. Rein, "'The Scope of Hearsay'" ( 1994) 110 Law Quarterly Review431, 437 ('The threatened consequence of so extending the concept of hearsay is that every human action which may reasonably be adduced to show the actor's belief would be branded as hearsay. That would be tolerable only if one were prepared to admit innumerable exceptions to the hearsay rule and if one could devise a principled scheme for determining the range of those exceptions'); J. R. Spencer, "'Hearsay, Relevance and Implied Assertions'" [ 1993] Cambridge Law Journal40, 41 ('For example, to support the evidence of P that D uttered a threat to shoot him, can the prosecution now lead evidence that the other drinkers in the bar immediately fled?'); C. F. H. Tapper, "'Hearsay and Implied Assertions'" ( 1992) 108 Law Quarterly Review524, 527-8 ('It is submitted that the House of Lords has condemned the law to further convolutions of interpretation to determine what implications may be found lurking in statements, both those assertive and non-assertive on their face, and even more problematically in actions. Such feats will be rendered the more difficult by the absence of any guidance in their lordships' remarks as to the means of approaching this task.'); Scottish Law Commission, Evidence: Report on Hearsay Evidence in Criminal Proceedings (Scot. Law Com. No. 149) ( 1995), 37 ('Every human utterance or action could be argued to be an implied assertion of something, including an assertion of the speaker's or actor's intention, state of mind or belief').

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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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