Lost in Translation? The Difference Between Hearsay Rule's Historical Rationale and Practical Application

An examination of the difference between the hearsay rules historical rationale and current application. The analysis occurs in three steps. In section 1, the historical rationale of the hearsay rule is identified through a reconciliation of competing theories. Section 2 analyses the difference between the hearsay rules historical rationale and the application of the exclusionary hearsay rule. Section 3 analyses the difference between the hearsay rules historical rationale and the application of some categorical hearsay exceptions.

Overall, the thesis finds that the hearsay rules historical rationale has three aspects: concern with the inherent reliability of hearsay evidence, concern with procedural reliability in admitting the evidence, and fairness in the adversarial process. Five factors underlie this rationale: the hearsay dangers, demeanour evidence, the lack of opportunity to cross-examine the declarant, the evidence is unsworn, and fairness in the adversarial process (this is a factor and an aspect of the historical rationale).