Hearsay Evidence

The hearsay rule bars admitting at a trial statements that were made out of court if they are offered to establish the facts asserted in such statements. The hearsay bar is thought by many scholars to have its origins in outrage over the admission of hearsay at trials like that of Sir Walter Raleigh, tried for treason in 1603. The primary witness against Raleigh was his alleged co-conspirator, Lord Cobham, who never appeared at trial, but whose out-of-court statements implicating Raleigh were read into evidence. Raleigh’s protests that he ‘‘may be massacred by mere hearsay’’ were ignored, and he was sentenced to death, though later reprieved but confined for years in the Tower of London. The danger raised by this hearsay was that Raleigh had no opportunity to cross-examine Cobham so that the jury could better gauge Cobham’s credibility.

Hearsay admissibility also risks prosecutors creating evidence molded to their liking, evidence used to condemn a man without his being able to challenge its reliability. This danger is vividly illustrated by the hearings of the House Committee on Un-American Activities (HUAC) during the red scare of the late 1940s and early 1950s. HUAC used hearsay and innuendo to accuse defense contractors, college professors, actors, labor organizers, and others of being Communist Party members, ruining their lives and careers with no opportunity to challenge their absent accusers.

Hearsay, especially when it is oral rather than written, is particularly easy to fabricate. One modern danger arises when jailhouse informants or other ‘‘stoolies’’ lie about what they have heard another saying. They lie in the hope of cutting a deal with the prosecutor to testify in exchange for, or even in the simple hope of, a reduced sentence. Significant numbers of innocent defendants have been convicted throughout the common law world based on such fabrications, resulting in the creation of commissions in Canada and the United Kingdom to recommend ways to protect the innocent from false informant accusations.

Relatedly, the hearsay bar equalizes the power disparity between prosecutor and defense counsel, given the generally greater ease with which the state can track down and interview hearsay declarants relative to those sought by often indigent criminal defendants. At present, the power disparity is especially great in terrorism prosecutions, particularly those done via military commissions, at which hearsay is freely available, including the potential admission of even suspects’ involuntary confessions. In certain classes of cases, such as date rape trials, however, it is the defendant who may hold more power than the prosecution. For example, hearsay about a rape victim’s ‘‘sluttish’’ reputation may play into gendered stereotypes that portray the alleged victim as simply not believable. ‘‘Rape shield statutes’’ accordingly often prohibit use of hearsay concerning the alleged rape victim’s sexual reputation.

In child molestation cases, on the other hand, it is the exclusion of hearsay that may disempower already weak children. A child who reports sexual abuse to his mother or teacher may be too terrified to repeat what happened in a courtroom, facing his adult abuser and many adult strangers (those composing the jury).

In continental European inquisitorial systems, judicial fact finders must write opinions identifying why they gave what weight to which evidence, including hearsay, unlike common law jurors, who are largely unaccountable for their verdicts. Inquisitorial trials are also not concentrated, but can occur in recurring episodes across a relatively long time period so that it is easier to do further investigation of the worth of hearsay statements considered at earlier trial stages. Accordingly, hearsay is more freely admissible in the European continent than in the United States. Yet both the European Convention and the European Court on Human Rights limit the availability of criminal convictions based on uncorroborated hearsay.

ANDREW E. TASLITZ

References and Further Reading

• Brown, Cynthia, ed. Lost Liberties: Ashcroft and the Assault on Personal Freedom. New York: New Press, 2003.
• Choo, Andrew L.T. Hearsay and Confrontation in Criminal Trials. Oxford: Clarendon Press; New York: Oxford University Press, 1996.
• Criminal Justice, Symposium Issue: Crawford and Hearsay: One Year Later, 20 Criminal Justice (2005): 2.
• Damaska, Mirjan R. Evidence Law Adrift. New Haven, CT: Yale University Press, 1997.
• Dwyer, William L. In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy. New York: Thomas Dunne Books, Saint Martin’s Press, 2002.
• Langbein, John H. The Origins of Adversary Criminal Trial. Oxford and New York: Oxford University Press, 2003.
• Taslitz, Andrew E. Rape and the Culture of the Courtroom. New York: New York University Press, 1999.
• Van Kessel, Gordon, Hearsay Hazards in the American Criminal Trial: An Adversary-Oriented Approach, 49 Hastings Law Journal 477 (1998).
• Zimmerman, Clifford E. ‘‘From the Jailhouse to the Courthouse. The Role of Informants in Wrongful Convictions.’’ In Wrongly Convicted: Perspectives on Failed Justice, edited by Saundra D. Westervelt and John A. Humphrey, 55–76. New Brunswick, NJ: Rutgers University Press, 2001.

See also Due Process