Legal Issues

Definition
Hearsay is any secondhand information or statement that a witness heard from another person and did not have the privilege of seeing or hearing it. At the same time it can be defined as any statement that is made outside a trial and which can be presented at the hearing to prove the accuracy of the contents of the statements made. It is basically any statement (Allen, 1992). However the word statement means more than oral declaration about something. It can take the form of written declarations, affidavits, letters, memos, legal documents and computer files made outside the court which can be presented in court and used to establish that their contents are legitimate. If for example a witness engages in an assertive action e.g. pointing at an individual in a line up of suspects will be considered as a statement.

The Hearsay Rule
The rule states that any testimony given in court by a witness during trial is not considered hearsay unless the witness tries to repeat something that was said or written by somebody else. The premise is that any form of hearsay either spoken or written can not be admissible in court because it is regarded as unreliable (McCormick, 1930). The rule further requires the provision of an oath and cross-examination to attend its introduction since truth is only ascertained if answers are unrehearsed. In the event that the marker of the statement does not testify, he can not therefore be cross-examined nor his demeanor observed or his credibility attested. The rule argues that statements made orally have the possibility of being altered while those made formally may be tailored to suit the party making them (Allen, 1992). The hearsay rule only accepts statements presented to prove that certain words were spoken but not that they are necessarily true. During other instances, the court may allow certain statements to be offered not purposely for their truth value but in an attempt to show the state of mind of the witness. This is because some statements are offered primarily to show their effect on the person hearing them with the endeavor of evaluating their reaction thereafter e.g. utterances made in a state of anger.

Criticism against the Hearsay Rule
In so far as the existing law of hearsay consists of exceptions, it has been widely criticized as being arbitrary, illogical and excessively complex. First and foremost, the rule of exception has never been absolute. Though the exceptions had become well established, the recognition of the exceptions in terms of how and when is not known. This is because the development of the law has taken place in a piecemeal fashion hence the law can not and has not been regarded as logical and coherent. For example the court can automatically give an exception to hearsay in the event that the statement by a witness in its nature is most likely to be true. In addition, various refinements and qualifications can be found within a single exception which is mostly inconsistent with the reason upon which the exception was built.

Secondly, the rule results in injustice. Records of a witness who is either dead or unavailable are not admissible in court yet they would sufficiently prove the innocence of the defendant (Zuckerman, 1989). The rule forbids the introduction of these records as evidence on the premise that the evidence is not given under oath and is also not subject to cross-examination. Conversely, as a matter of practice, the witness if he were alive would have been allowed the opportunity to refer back to the notes to refresh his memory before cross-examination, consequently, whether the owner of the records was to be cross-examined were he alive or the court admitted the records in the proceedings, the records would still become actual evidence. Therefore, the hearsay rule deprives the court the only available evidence on a particular issue and at the same time denies the defendant justice. It is believed that once hearsay statements are admissible in court mere rumor, unsubstantiated statements from witnesses who are unidentified and evidence of no probative value would be let in (McCormick, 1930).

Thirdly, records of regularly conducted activity e.g. business records which include records of bank accounts or annual business reports can be presented in court. The court exempts them as hearsay by virtue of the fact that all businesses keep accurate and dependable records and would therefore not compromise their affairs by keeping faulty and inaccurate records hence they are inherently reliable. Nevertheless, technological advancement and widespread use of computers makes the validity of the records to be questioned since the possibility that they were not compiled by any human agency is highly probable. Public reports and records of vital statistics are also always deemed reliable and trustworthy because the government and the public rely on them and there is no impulsion for the government to falsify the records hence they are admissible in court as evidence. However, these records can not guarantee full reliability, as a result, a responsible person must be called upon to give evidence as to the reliability of the systems that were used to compile the records and a notice of such evidence should be accessible to the other party (Waltz and Park, 1999).

Additionally, the rule confuses witnesses and therefore prevents them from giving an actual account of the events leading to the trial. This because the rule is highly restrictive refuting the recall of information said by another person in the witness box. Hearsay statements hugely add to the cost and time in the course of proving facts issued in court which are not necessarily in dispute and could end up being unreliable. Tax payers money is misused since the government is forced to allocate extra funds for the proceeding activities.
The jury is forced to spend more time on the issue in an attempt to prove the legitimacy of the statements. Though some of the statements will have some patina of reliability, more often than not, the documents will not be accurate. Therefore, the government inevitably ends up spending more money in paying the jury for the additional time in the court proceedings, for the upkeep of the witnesses for the whole period of the proceedings and in conducting further investigations to verify the truth and establish the authenticity of the hearsay statements or records.

Due to the numerous exceptions of the rule of hearsay, it immensely adds to the technicality and complexity of the law of evidence. Hearsay evidence, though characterized as untrustworthy and unreliable, is admitted in court under copious exceptions found in the common law and in other current statutes (McCormick, 1930). There are a total of twenty eight standard exceptions to the hearsay rule recognized by the Federal Rule of Evidence. This is in addition to the non-hearsay exceptions and the residue hearsay exceptions adopted by the Congress in an effort to promulgate the Federal Rules. Though the rules through which the exceptions were developed were aimed at increasing the credibility of the hearsay statements, finer distinctions of the exceptions have developed making it difficult in not only applying the exceptions effectively but also in  exhaustively explaining the rule of hearsay.

Finally, the rule deprives the court of vital material essential in ascertaining the truth. The admission of certain vital documents or records is often refuted with the court arguing that such records are not conclusive and can be therefore be challenged through the presentation of contradicting evidence. For example, family records contained in genealogies, tombstones, family portraits and engravings on rings or urns are inadmissible yet they could provide strong evidence during paternity andor inheritance cases.

Exceptions of the Hearsay Rule
Hearsay though not offered in court in most circumstances because of its untrustworthy and unreliable nature and the fact that the person who made the original assertions is often unavailable for cross examination, many exceptions abound since it can be admitted rather than rejected or excluded in a court of law (Allen, 1992).

However, before any hearsay statement is presented in court, several rules abide. The hearsay statement ought to be trustworthy enough and unfabricated for it to be introduced in court in the absence of the declarants testimony. Trustworthiness is very vital since if it is lacking the credibility of the statement is questioned. There are a total of twenty eight exceptions to the hearsay rule. Some of the common exceptions are in the case where an in-court testimony by a witness and the out-of-court statement contradict this is referred to as an admission against interest. In ordinary circumstances, the statement ought not to be permitted nevertheless the court is allowed to present the out-of court statement not for the purpose of verifying if the statement is true or false but in a bid to question and cast doubt on the credibility of the witness. However, the witness is entitled to comment on his out-of-court statement and sufficiently explain any discrepancy between it and the testimony he made earlier in court.

Spontaneous or excited utterances commonly referred to as statements made to a startling condition while under stress by the Federal Review of Evidence, are admissible in court. The premise is based on the principle that human behavior mostly involves reflection and planning and at times self-interest. However, in the event of an unexpected occurrence such as an accident, an individual may not have the time to plan and reflect on his utterances. Consequently, the court most often in the case of an emergency call through 911 can allow the police to give a testimony on behalf of the victim and the utterances are not considered hearsay (Zuckerman, 1989).

Records are usually exempted from the hearsay rule. According to the Federal Rules of Evidence, the most commonly encountered form of hearsay is factual records which are mostly prepared by individuals other than the witness. The law assumes that organizations whether a church, parastatal or a business create and keep records which are accurate. Recorded recollections e.g. a memorandum or a diary are permissible in court in the event that the witness at present has insufficient recollection concerning a particular matter to enable him to testify accurately. The records in the witnesss writing will act as sufficient evidence thereby providing the court with the required level of reliability (Keane, 2000).

The hearsay statements however do not form the basis for the final judgment. Though the judge may permit the hearsay statements to be recorded as evidence, the jury has the discretion to decide whether the case will enter into a guilty or not guilty verdict or more so an acquittal.