Hearsay and Confrontation in Criminal Trials

By Andrew L.-T. Choo | Go to book overview
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5
Common Law Exceptions to the Hearsay Rule

In this Chapter, it is proposed to examine a number of the exceptions to the hearsay rule that are recognized at common law. The discussion is selective rather than comprehensive, focusing on the exceptions which are most controversial and relevant to criminal trials. Other exceptions are either treated only in outline or omitted altogether. One might have expected the exceptions to the hearsay rule to perform the function of facilitating the admission of reliable evidence which would otherwise be excluded by the rule. However, it may be demonstrated that not only have the exceptions failed adequately to perform this function, but that some evidence which is admissible under the exceptions is no more reliable (and sometimes less reliable) than hearsay evidence to which the exceptions do not apply and which must therefore, in theory, be excluded. The exceptions to the hearsay rule, one commentator has vividly written, 'exist to perform the function of separating the wheat from the chaff, but we all know that the motley varieties of threshing implements, being of different vintages and designed with no overall purpose in mind, are apt to leave much nourishing grain on the threshing-room floor, while occasionally offering up for consumption the sort of fibrous husky residue which sticks in the throat'.1 At the forefront of the discussions in this Chapter, therefore, is an exploration of whether there are considerations apart from reliability that underpin the exceptions strategy. Do considerations of convenience and necessity come into play in the same way as they do in relation to some of the contexts considered in Chapter 3? And 'are the hearsay exceptions only a refuge for judges who want rules they can apply without thinking hard?'2

Confessions by accused persons constitute a major exception to the hearsay rule, but will be omitted from discussion in this book. Such confessions are admissible in evidence provided that they were not obtained by oppression or in circumstances which were likely to render any resulting

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1
D. J. Birch, "'Hearsay-Logic and Hearsay-Fiddles: Blastland Revisited'", in P. Smith (ed.), Criminal Law: Essays in Honour of J. C. Smith ( 1987), 24.
2
C. B. Mueller, "'Post-Modern Hearsay Reform: The Importance of Complexity'" ( 1992) 76 Minnesota Law Review367, 368, n. 4.

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