§ 31.02 RATIONALE FOR HEARSAY RULE

• Jurisdiction: North Carolina

§ 31.02. RATIONALE FOR HEARSAY RULE

Cross-examination is the key to understanding the hearsay rule.¹⁰ Suppose a witness testifies at trial as follows: "I saw the accused shoot the victim." The accuracy of this testimony depends upon the witness's perception, memory, and narration,¹¹ as well as the witness's sincerity. For example, what if the witness had only a split second opportunity to observe the shooting, was at a far distance, or was not wearing prescribed eyeglasses? Or, perhaps the shooting occurred 10 years before trial, or the witness later heard another witness's account of the incident, thus introducing new information into the witness's "memory" of the shooting. What if the witness is lying? Cross-examination is the vehicle use to test a witness's perception, memory, narrative ability, and sincerity. In addition, the witness is under oath, and the jury has an opportunity to observe the witness's demeanor while testifying.¹² These are the traditional trial safeguards.

Now change the hypothetical. The trial witness testifies that another person (called a declarant) told the witness that he (the declarant) "saw the accused shoot the victim." There is no cross-examination of the real witness, the declarant, to test perception, memory, narration, and sincerity.¹³ If this out-of-court statement is offered to prove that the accused shot the victim (i.e., offered for its truth), the credibility of the declarant, not the witness, is critical to an assessment of the statement's reliability.¹⁴ In sum, we have the "hearsay dangers" but no cross-examination.¹⁵

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Notes:

^[10] But see Park, A Subject Matter Approach to Hearsay Reform, 86 Mich. L. Rev. 51, 77 (1987) (arguing that cross-examination by itself cannot justify the hearsay rule; other considerations such as surprise and the use of trained investigators to exact statements by trickery and offers of immunity also play a part). See also Swift, Abolishing the Hearsay Rule, 75 Cal. L. Rev. 495, 514 (1987); Swift, A Foundation Fact Approach to Hearsay, 75 Cal. L. Rev. 1339 (1987).

^[11] Narration is the traditional term. Communicative ability is perhaps a better one. The central question is: Was the witness able to convey what she intended to convey? For example, a witness testifying about the time of a robbery may use the term "two o'clock," meaning "a.m.," but some jurors may interpret it to mean "p.m."

^[12] In the hearsay context, the oath and observation of demeanor are secondary safeguards to...