Hearsay and Confrontation in Criminal Trials

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

2
The Rationales for the Rule

[Hearsay evidence] is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.1

Implicit in this statement by the Privy Council in Teper v. R. is the assumption that the rule against hearsay exists because hearsay evidence is inherently unreliable. This unreliability is considered to be due to a number of factors:
1. Hearsay evidence is not often the best evidence.
2. The hearsay statement will almost invariably not have been made on oath.
3. The maker of the statement, if he or she is not called as a witness, will be unable to be subjected to cross-examination. Even if called as a witness, the maker of the statement will not be able to be subjected to contemporaneous (in the sense of almost immediate) cross- examination.
4. The judge and jury will not have had the opportunity to observe the demeanour of the maker of the statement at the time of the making of the statement.

That the first factor (the presumption that hearsay evidence is not the best evidence) may be inapplicable in some circumstances has already been seen in the previous chapter, in the context of the discussion of Myers. Each of the remaining factors identified in Teper, and others, will be subjected to close scrutiny later in this Chapter. For the moment, however, it is worthy of note that, as the above quotation from Teper demonstrates, the hearsay rule has typically been justified in English law by reference to intrinsic policy considerations only. The concern of intrinsic policy is to ensure that evidence is as reliable as possible. There are, apart from the hearsay rule, a number of other evidential principles in English law which are justified on the ground that they ensure the reliability of evidence. For example, the similar-facts rule renders evidence of the previous misconduct of an accused person inadmissible unless the prejudicial effect of the evidence is outweighed by its probative value.2 The justification for this rule lies in the

____________________
1
Teper v. R. [ 1952] AC 480, 486 per Lord Normand.
2
DPP v. Boardman [ 1975] AC 421; DPP v. P [ 1991] 2 AC 447.

-11-

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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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