The Rule Against Hearsay in Criminal Trials
'Little to do, and plenty to get, I suppose?' said Serjeant Buzfuz, with jocularity.
'Oh, quite enough to get, sir, as the soldier said ven they ordered him three hundred and fifty lashes', replied Sam.
'You must not tell us what the soldier, or any other man, said, sir', interposed the judge; 'it's not evidence'.
'Wery good, my lord', replied Sam.
In as much as it implies that any narration by a witness of a statement made by another is prohibited, this depiction of the rule against hearsay by Charles Dickens in The Pickwick Papers1 is misleading. The rule against hearsay prohibits a witness from reporting a statement made by another person only where the purpose of adducing evidence of the statement is to establish the truth of any fact asserted in that statement.2 A clear-cut and uncontroversial application of the rule in a criminal trial might be as follows. The prosecution wishes to prove that the car seen at the scene of a crime was red. The hearsay rule renders inadmissible the testimony of a prosecution witness, W, that 'X said that the car was red'. If, however, the testimony is to be adduced to prove, not that the car was red, but that X could speak, then it would not be rendered inadmissible by the hearsay rule. To take another example, suppose that the issue in a case is whether Y was still alive at a particular time. Testimony from a witness that she heard Y shout 'I'm alive' at that time would not be excluded by the hearsay rule,____________________