One of the most venerable of all legal principles is the evidentiary rule excluding hearsay. This rule, which was first espoused by the English courts in the sixteenth century, arose when it became apparent that there was an inherent danger of untrustworthiness in a witness's uncorroborated recital of a prior declaration made outside the courtroom. The courts gave several reasons for regarding hearsay as untrustworthy. First, these statements, offered into evidence for the truth of the matter asserted, were not made under oath. Secondly, objection to such testimony was raised because the trier of fact had no opportunity to pass on the absent declarant's credibility, since it was unable to observe the declarant' s demeanor on the stand. Also present was the danger that a witness orally reporting on an out-of-court statement might do so inaccurately. Finally, and most important, the adversary had no opportunity to cross-examine the declarant whose out-of-court statement was being offered in evidence. Although the exclusionary rule as to hearsay is firmly established in the law, there are also a number of well-established exceptions to it. Typically, these exceptions were formulated by courts faced with situations in which the hearsay nature of the evidence was outweighed by considerations of necessity and circumstantial probability of reliability. Many of the exceptions to the hearsay rule require that the declarant be insane, dead or otherwise unavailable. Under such circumstances, the hearsay testimony must be admitted if the trier of fact is to benefit at all from the declarant's knowledge. On the other hand, some of the most frequently invoked exceptions allow hearsay to be admitted in evidence even though the declarant is available. Despite the necessity of introducing a particular hearsay statement, it must have some degree of trustworthiness before it will be admitted. Indeed, the exceptions were developed for those situations in which the danger of intentional fabrication was thought to be minimal.
John M. Price S.Ed.,
Evidence-Hearsay-Exclusion of Self-Serving Declarations,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol61/iss7/5