Weaknesses of hearsay evidence

If the hearsay rule has so many bad effects, how did it come into existence? Why should it not be abolished, root and branch?

There are drawbacks about hearsay evidence. It may range all the way from very reliable evidence to idle or malicious gossip, and may have been distorted or embroidered in retelling. There has always been a fear that to relax the hearsay rule would be to open a floodgate and inundate the courts with a mass of dubious evidence. One strand in the history of the rule against hearsay has been the fear of the judges that juries might be unduly influenced by unreliable hearsay statements.

The rule against hearsay has a number of other links with traditional aspects of our system of trial. Firstly, evidence in court is taken on oath, and most hearsay statements are not made on oath. The taking of an oath is not so seriously regarded in the community today as it once was, but evidence in court is given deliberately on a solemn occasion and under observation, whereas out-of-court statements are made on all sorts of occasions.

Secondly, evidence in court is subject to cross-examination. This is important not only as a means of exposing lies, but also to show that an honest witness may be mistaken, or have been misled, or have had limited powers of perception or limited opportunities for observation, or be biased, or have an unreliable memory. It may also sift out any ambiguities in what the witness says. If the maker of a hearsay statement is not called as a witness, these advantages are lost. Our system relies very heavily on cross-examination as a means of exposing falsehood or error, and few other means of discrediting a witness are permitted.

Thirdly, our system of trial is to a considerable extent geared to the idea of a single occasion in court, with the trial going continuously from start to finish. This has advantages and disadvantages, but one consequence is a judicial reluctance to permit the multiplication of evidence on a point, the investigation of side issues, and the admission of evidence which it may be hard for a party to anticipate and deal with quickly. Hearsay evidence can raise these problems, and therefore arouses resistance.

Fourthly, our system of trial is based on the “adversary” system. The judge keeps the ring, but does not enter the fight. For the most part, it is his job to decide the matter on the basis of what the parties present to him, rather than to conduct his own inquiry. Witnesses are called and examined by the parties or their lawyers, rather than by the judge. A party preparing his case needs to have a reasonably clear idea of what evidence the court will be willing to receive, both from him and from his opponent. Hence the adversary system, in contrast to the Continental “inquisitorial” system, is characterized by an elaborate law of evidence. Part of the elaboration is the rule against hearsay, which, by and large, tells the parties that they must call the witness who can verify a fact from his own observation, rather than merely repeat what others have said.