Hearsay and Confrontation in Criminal Trials

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

The focus of this Chapter is upon various possible approaches that might constitute the basis for reform of the hearsay rule in criminal trials in England. In the light of the problems associated with the hearsay rule examined in the preceding chapters, it is clear that substantial revision of the operation of the hearsay rule in England is necessary. Indeed, it may be tempting to argue that the rule should be abolished altogether. Wigmore considered that, if the rule were to be abolished, we would probably attain a clearer picture of events and get just as close to the truth.1 Even at present, the hearsay quality of a good deal of evidence goes unnoticed.2 Indeed, at a certain level, there may be a hearsay quality inherent in any testimony. It is arguable that there is no such thing as completely objective perception, since all our perceptions of the real world are dependent to some extent upon what we have been told by others. If, for example, I testify that the car I saw driving away from the scene of the crime was red, is not what I am saying dependent upon what my parents taught me about colour? The concepts of true 'first-hand knowledge' and of testimony about 'objective facts' or 'objective reality' may simply be myths.3

One consequence of the substantial abolition (or the substantial relaxation) of the hearsay rule, however, is that the amount of evidence able to be adduced by the prosecution (the party which already enjoys the balance of advantage owing to the resources available to it) would be increased.4 In jurisdictions such as Canada and Australia, where the hearsay rule in criminal trials has been relaxed judicially, this relaxation has

J. H. Wigmore (rev. J. H. Chadbourn), Evidence in Trials at Common Law (Vol. 5) ( 1974), 259.
E. M. Morgan, "'Hearsay and Non-Hearsay'" ( 1935) 48 Harvard Law Review1138, 1145.
See generally G. M. Fenner, "'Law Professor Reveals Shocking Truth about Hearsay'" ( 1993) 62 UMKC Law Review1, 21-6; M. Morton, "'The Hearsay Rule and Epistemological Suicide'" ( 1986) 74 Georgetown Law Journal1301.
See generally R. C. Park, "'The Hearsay Rule and the Stability of Verdicts: A Response to Professor Nesson'" ( 1986) 70 Minnesota Law Review1057, 1060; R. C. Park, "'A Subject Matter Approach to Hearsay Reform'" ( 1987) 86 Michigan Law Review51, 94-7; M. S. Raeder , "'The Effect of the Catchalls on Criminal Defendants: Little Red Riding Hood Meets the Hearsay Wolf and is Devoured'" ( 1992) 25 Loyola of Los Angeles Law Review925, 940; R. O. Lempert and S. A. Saltzburg, A Modern Approach to Evidence: Text, Problems, Transcripts and Cases ( 2nd edn., 1982), 521-2.


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