Conceptual Versus Pragmatic Approaches to Hearsay

Abstract

English judges and lawyers pride themselves in their pragmatic approach to the law. Yet this pragmatism is conspicuously absent from one of the most entrenched rules of evidence the hearsay rule. This requires a court to exclude any written or oral statement not made in the course of the proceedings which is offered as evidence of the correctness of the matter asserted. A statement which is relevant independently of the real intention of the speaker2 or the truth of what is stated3 is not adduced for a testimonial purpose and is therefore outside the scope of the rule. The basis of the hearsay rule is supposedly the dangers which attach to the use of statements not made by witnesses within the confines of the courtroom where the declarant can be subjected to immediate cross-examination. However, when the question of admitting an out-of-court assertion arises in a criminal trial, no attempt is ever made to measure the real danger which the statement presents to the fact-finding process. Instead the court concentrates on conceptual issues is the statement being used testimonially? If the answer is yes, does it fall within one of the narrow and inflexible common law exceptions to the rule (all of which were created before the end of the nineteenth century) or one of the more recent, but equally limited, statutory exceptions to the rule.4 If the answer to the second question is no, the evidence is automatically rejected. There is never any question of weighing the probative value of the evidence against the risk of unreliability. In this article I argue that the only justification for excluding hearsay evidence is the dangers which a particular piece of hearsay evidence presents and that concentrating on conceptual distinctions between assertions relied upon for their truth and assertions which are not relied on for this purpose has produced irreconcilable lines of case law and has led to the exclusion of evidence which, because of its probative value and reliability, should have been admitted.