 |
Hong Kong Law Reform Commission |
Chapter
2
Justification
for the hearsay rule
_________________________________________
2.1 In
Teper v The Queen, Lord Normand
stated the underlying reasons for the hearsay rule succinctly:
"The
rule against the admission of hearsay evidence is fundamental. It 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]
The Supreme Court of
Canada articulated similar reasons in terms of three "hearsay
dangers":
"the absence of an oath or solemn affirmation when the statement
was made, the inability of the trier of fact to assess the demeanour and
therefore the credibility of the declarant when the statement was made (as well
as the trier's inability to ensure that the witness actually said what is
claimed), and the lack of contemporaneous cross-examination by the
opponent."[2]
2.2 Which
reason is the preponderant one is a moot point. For example, R W Baker accepts Phipson's
point that " … no single principle
can be assigned as having operated to exclude hearsay generally … "[3],
and it is probably safer to assume that a combination of reasons have played
their part. On the other hand,
A.A.S. Zuckerman asserts that, "[i]t
is the unavailability of a hearsay declarant for cross-examination which
constitutes the central reason for the exclusion of hearsay statements."[4]
2.3 It is important to note that
much hearsay evidence which is inherently reliable, because of the
circumstances in which it came into being, nonetheless is excluded. Much hearsay evidence may be relevant and
credible, though Bruce and McCoy point out that:
"Experience
demonstrates that a witness relating an event he has seen, heard or otherwise
experienced first hand is more likely to give an accurate account of that event
than if he is relating what another person experienced."[5]
"Hearsay
evidence is not excluded because it has no logically probative value.…The
rationale of excluding it as inadmissible, rooted as it is in the system of
trial by jury, is a recognition of the great difficulty, even more acute for a
juror than for a trained judicial mind, of assessing what, if any, weight can
properly be given to a statement by a person whom the jury have not seen or
heard and who has not been subject to any test of reliability by
cross-examination…. The danger against which this fundamental rule provides a
safeguard is that untested hearsay evidence will be treated as having a
probative force which it does not deserve."[6]
2.4 Professor
Zuckerman reminds us of a fourth reason for excluding hearsay, in addition to
the lack of cross-examination, the absence of an oath, and the lack of an
opportunity to assess the witness’s demeanour. While cross-examination has utilitarian
value in testing the reliability of evidence, it also has intrinsic value in
the notion of confronting one's accuser.
In the
"Hearsay
is associated with unsubstantiated beliefs based on rumour, gossip, and
specious word of mouth. Hence our
belief that the accused should be judged on the evidence produced against him in
court and not on the basis of public preconceptions explains the intuitive
antagonism to hearsay. The right to
confrontation in the Sixth Amendment of the
2.5 In
summary, there appear to be two main justifications for the hearsay rule: firstly,
the inability of the tribunal of fact to weigh and assess hearsay properly
without the usual tests and safeguards of reliability, such as
cross-examination, an oath or affirmation, and the opportunity to assess the
witness’s demeanour; secondly, the admission of hearsay in the prosecution's
case is antithetic to an accused's right of confrontation.