THE LAW

Your verdict

R. A. CLINE

man is said to be languishing in jail onvicted of a murder he did not commit. le victim of the murder, who apparently .1 not die at once of his stab wounds, :Aid to have told a number of people of identity of the actual stabber and the tier has now come forward. The Home Ike is now asking a few questions to ad out the truth.

Meanwhile the public are asking a tew uestions. too, not about the circumstances 1 the crime but about the rules of tidence, particularly the hearsay rule, nich the public no doubt feels has shed lore darkness in this affair than it has light. this a fair charge? Does this strange and Allowed rule stand convicted of the inous crime of bringing about an injustice d concealing the truth?

First let it be said that the rule was ashioned in the mid-nineteenth century, hen judges had as strong a sense of justice s the public claims to have today. The dges of that time were concerned to pro- the illiterate man in the dock, who as not allowed even to open his mouth his own defence in case he convicted him- If out of it. So they kept hearsay evidence ut of the proceedings.

Now the rule works in this way. You see man stealing your car. You rush to the earest policeman and say I have seen a an steal my car.' You are a witness of the ct because you saw it actually happen. ou should give evidence so that you can cross-examined on behalf of the thief. he policeman cannot give evidence of hat you told him to prove the stealing. He at not see it happen. He cannot be cross- amined about the event; he only knows

it by hearsay and his judgment of hether you were telling the truth when u said 'I saw x steal my car' is not so liable as the iudge's direct judgment of our veracity in the witness box, tested as it by cross-examination.

Now suppose that from motives of malice

u tell the policeman you saw x steal the r when in fact you saw v do it. If the arsay rule is abolished, the policeman can ire evidence that you told him x stole the r. Cross-examination of the policeman turally fails to make much progress and e wretched x has to face false evidence a crime he did not commit, reported rough the mouth of an honest non-wit- us. Yes, but the mendacious you have to Sc evidence; you started the false hare

d in cross-examination you will be re- ealed to have done so. Possibly, but let us ake another supposition. Having lied to

e policeman you are killed in a car ash on the way to the police station. OW the only evidence of stealing is the earsay evidence reposing in the bosom of e surviving policeman. Should it be heard Y the court for want of anything else or ould it be excluded? The case for the fence of the present rule is that if it is eluded, innocent men cannot be amed.

If it is applied in the case now under in- tigation, then when the stabbed victim Id non-witnesses of the identity of his sailant, the non-witnesses could only Peat something of which they knew not hether it was true or false In this case however, a second rule of evidence comes into operation, because the stabbed man died. Our more reverent forefathers assumed that those who were about to die had scruples about telling falsehoods, provided of course they were conscious that death was imminent. So 'dying declarations' could be given in evidence by anyone who heard the declaration though he did not himself see the event described by the dying.

This well-known exception to the pro- hibition of hearsay evidence is said not to have applied in the present case because the stabbed victim had no inkling that the blows were fatal. But now we come to the maze of rules and exceptions which are the despair of lawyers who like their laws to be clear-cut. It a sexual crime is committed, the complaints of the victim (provided they are voiced pretty quickly after the otience is committed) can be given in evidence on hearsay The rationale of this considerable inroad into the general rule is that the com- plaint is in effect almost a part of the sexual event itself—part of the history of the crime.

But why only for sex cases? Why not any complaint made immediately after the crime? No doubt the Victorians thought that sexual assault was a fate worse than death and the victim could not but tell the truth—like a man in his last moments. To be fair to them, they insisted on corroboration, knowing how prone women in railway car- riages were and are to sexual fantasies and to converting their dreams into evidence. But you can see that the sharp edges of logic are now beginning to get frayed.

Is the hearsay rule then acquitted of in- justice or is it a serious obstacle on the path to the ascertainment of the truth? There is a good case for arguing that this kind of evidence should be admitted 'in the discretion of the judge' But this makes many people nervous. It imposes a heavy burden on a person who has to make the decision when he does not know the whole story; and anyway a few judges are more prosecution-minded than others, and their discretion tends towards getting everything on to the record.

It is also argued that hearsay evidence is now permissible in civil actions, subject to certain safeguards, and that it is more important to establish the truth in a criminal prosecution than in a mere dispute about money. True, but it is equally import- ant that false charges should not be made the more easy to make when giving evidence. How would you feel, members of the jury, if a policeman gave hearsay evidence that one of your worst enemies, now dead, had named you as the stealer of his car? Would you be comforted by the thought that the policeman (wholly truthful) could be cross-examined? What, then, is your verdict, that the hearsay rule is innocent or guilty of Injustice?