Hearsay is unverified information which is heard from someone else. It is a matter whose facts cannot be certified and hence can be treated as a rumor. In the court cases, they are written or oral presentations which are not presented by the first witnesses of the case but used to persuade the court to be accepted it as the truth and help to prove the case stated. This type of evidence is usually inadmissible by the court. The hearsay rule is often regarded as being complicated and confusing when tendered as evidence during a case. Various facts are considered to determine if it will be admissible in the court. For instance, its objective should be mainly to establish the truth by evidence and not the truth of the statement of the fact that it brought forward.
This rule is used to filter evidence and may not be admissible by the court depending on its reliability. For example, in the case of R v Andrews, the ruling court which was the House of Lords admitted the hearsay evidence by witnesses who heard the declarant say that he was attacked by the accused. Several reasons can make the hearsay evidence to be criticized and be treated as being ambiguous for use by the court in giving a ruling. These critiques include:
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1. Absence of Cross-examination of the statement
It is hard to assess the weight of the hearsay, and it is one of the most important justifications to be used against the rule. Cross-examining is vital in the testing of the evidence to expose its weaknesses and other mistakes that could arise from the evidence. This is an instrument that is used by the jury or the court to point out ambiguity and other insincerity in the testimony provided to the court to be employed in the case presented. In hearsay, the trier of the facts does not allow for testing and ascertaining the demeanor of the declarant in the litigation process. It is, therefore, weak to use it to determine the truth of evidence. In most cases, the declarant admitted or made the statement outside the walls of the courtroom and hence the jury is not presented with an opportunity to evaluate and determine the reliability of the testimony. Since it cannot be cross-examined at the time the statement was uttered, this evidence raises the question of ambiguity and the modesty that it adds to the weight of the facts cited.
In a case of R v Kearley18, the accused was charged with possession of drugs with intent to supply. During the house raid, police received various calls from potential customers of the drugs and seven other people came to inquire for the drugs. The prosecutors, however, were unable to bring the callers during the trial. The police were to recount what they heard from the call. The court ruled the hearsay inadmissible since there was no possibility of cross-examining and ascertaining the statements of the declarants to be used in the case.
2. Risk of manufacturing evidence
Both the hearsay and testimonials provided face the risk of being manufactured as there is a possibility of the statements passed from one person to another. The witness may fail to give a truthful account of the happenings or recount the events inaccurately, and hence the statement can be misleading. For instance, during a case with multiple hearsays, lack of cross-examination of their statements can results to defects in the testimonies since most inaccuracies cannot be ascertained. Due to the verbal nature of this evidence, it can be suggested that recollections of the statements made are most likely to defer from the narration of events as said by a primary witness. When no other witness steps forward to refute the allegations made by the hearsay or give another version of the happenings, examination of the utterances is not done. In this case, there is lack of corroboration from other witnesses, and hence even if the hearsay is false, it will be admissible in the court and used to support the truth of evidence.
3. Misperception of the hearsay by the jury
One of the psychological limitations that may face the jury handling a hearsay is that they may fail to properly weigh all the possibilities in infirmities occurring in the testimony provided by the witness. The members of the jury could overlook the possibility that the declarant might have been confused or had other personal reasons to fabricate the statement provided. They may also consider that the testimony of the hearsay is of an equal probative value as that of live testimony. It therefore, heightens the chances that the verdict will be heavily based on the hearsay and have the likelihood of abusing the hearsay evidence through the form of an outright fabrication or through relying on a selective memory. For example, one may have the assumption that the party which the hearsay is detrimental prefers to have the statement recounted by a homeless person rather than someone in a known profession. The jury may have a different perspective on the hearsay witness.
4. Procedural concerns of the hearsay
The hearsay schema faces various critiques as to the manner in which the case proceedings in which it is involved is handled. In the formulation of the response provided by the Federal Rules of Evidence regarding the hearsay, the committee pointed out several safeguards which were missing. For instance, it was noted that the hearsay is not made as an oath by the witness. An oath which is sworn by a witness will guarantee that the witness is sincere and can be traditionally relied upon. An oath acts as a reminder to the witness to be solemn and that the evidence will be used to punish those committing perjury. Consequently, it is said that someone who provides a statement under oath is more likely to state the truth and carefully recall memories that one who gives out of court accounts. The hearsay does not also provide demeanor to the witness. It is always assumed that a person's body language and confidence helps to gauge if one is telling the truth. The case proceedings do not put it into consideration.
Exceptions to the Hearsay Rule
Hearsay is always not allowed in court whether during a criminal or a civil trial just like a personal injury case. However, several occasions render hearsays admissible and therefore accepted by the court to be used to support the available evidence. Since the statement is made out of court, the jury is mandated to prove that it is true. The exceptions to the hearsay rule are categorized into three. Exceptions that are considered when the declarant is not in a position to testify, exceptions granted whether the declarant can testify or not and the exclusions of the hearsays (Beaver, 1992). The three main exceptions to hearsay are:
1. Dying Declarations
One of the exceptions is granted when the declarant is not able to testify in court. This, for instance, are statements made when a person is dying or believes that they are dying. These declarations are admitted by the court and used as testimony to support other evidence. However, most of the criminal cases do not accept this type of hearsay when the declarant dies after making the statement. Civil cases, however, can still admit the hearsay even after the death of the person who made the statement. If miraculously the dying person recovers and is available during the trial, the declaration will not be admissible and used as testimony.
In a case of Giles v California, in 2008, the Supreme Court ruled a case that had hearsay evidence of domestic murder. Dwayne Giles murdered his ex-girlfriend Brenda Avie in which Giles claimed to act in self-defense. The police were permitted to testify that before her death, Avie claimed Giles had threatened her. The court stated that Giles forfeited his right to confront Avie and cross-examine her statement since he intentionally made the witness to be unavailable during the trial. The Jury reported that the violence report by Avie was not testimonial and could not be barred using the confrontation clause.
2. Former testimony recounted
Another exception to the hearsay rule that makes it admissible to the court is when the person who made the declaration or the statement did it under oath. It should also be preconditioned that the parties were able to cross-examine the declarant at that moment of utterance (Strahorn, 1937). This statement will, therefore, be admitted by the court even though it is hearsay. This rule can be used when there is need of introducing a deposition testimony during a trial. The hearsays that are considered as confessions or admissions made under oath and can be relied on.
3. Declarations against interests
When a declarant makes a statement that could hurt the person, the declaration is admitted as evidence despite being hearsay. The court always assumes that the person would not have said those words if they are not true. It is hence readily administered to support the evidence that exists in the stated case.
References
Beaver, J. E. (1992). The Residual Hearsay Exception Reconsidered. Fla. St. UL Rev., 20, 787.
Giles v California, (September 2007). Retrieved from https://www.oyez.org/cases/2007/07-6053
Regina v Andrews, HL 1987. Retrieved from http://swarb.co.uk/regina-v-andrews-hl-1987/am
Robert v Kearly, (1992). A.C.228. Retrieved from http://caselaw.wikia.com/wiki/R_v_Kearley
Strahorn, J. S. (1937). A reconsideration of the Hearsay Rule and Admissions. University of Pennsylvania Law Review and American Law Register, 85 (5), 484-509
