The rule against hearsay can be justified by reference to considerations of intrinsic and extrinsic policy. English law has focused on the former, taking the view that the rule constitutes protection against the admission of unreliable evidence. However, the way in which hearsay doctrine addresses reliability concerns leaves much to be desired. The rule itself (at least if applied properly) excludes too much, automatically barring evidence which most would feel is sufficiently reliable to be left to the jury. Myers and Kearley are cases in point. Some exceptions to the rule, such as the dying declarations exception, treat evidence the reliability of which may well be in doubt as admissible. But whilst admissible hearsay evidence may be excluded in the discretion of the trial judge, there is no discretion to admit inadmissible hearsay. In the law of hearsay, more than in any other major area of criminal evidence, a priori assumptions have prevailed over the individualization of determinations of reliability.
Various types of reform might be considered. An obvious course of action might be to maintain the current rule/exceptions strategy, and merely to add to the list of exceptions a final exception providing trial judges with an inclusionary discretion. This is the approach adopted in the US Federal Rules of Evidence and developed judicially by the Canadian Supreme Court. However, such a strategy would still leave the existing exceptions intact, so that an item of hearsay evidence to which a specific exception applies would be deemed admissible (subject only to the discretion of the trial judge to exclude legally admissible evidence) even if an individualized determination might have led to the opposite conclusion. Thus, it is clear that tinkering at the edges of current hearsay doctrine would not constitute a sufficient basis for reform. A more radical approach would appear to be necessary.
I would propose that the hearsay rule and its exceptions, as presently constituted, be abolished. The admissibility in evidence of out-of-court statements should be justified on a case-by-case basis, and accused persons should be afforded a right of confrontation, interpreted along the lines suggested in Chapter 7. Thus, evidence of all out-of-court statements should be regarded as prima facie inadmissible on behalf of the prosecution. In order to secure admissibility, the prosecution must satisfy the trial judge that the maker of the statement is either being called as a witness (if available) or is unavailable. If the prosecution is able to do so, the evidence