Should hearsay rules in the U.S. criminal and civil justice systems be changed?
The question of whether to change existing rules pertaining to the admissibility of hearsay evidence have proven resistant to easy resolution for the reason that, while unreliable in a vacuum, such evidence can contribute to the development of a body of evidence that can support the notion of guilt or innocence in a particular case. It is difficult to challenge witness testimony that relies in full or in part on hearsay evidence, for example, that the witness testifying was told something incriminating or exculpatory by a third party who is not present. A major principle of the U.S. justice system is the ability of counsels to cross-examine each other’s witnesses and to challenge evidence. Under many circumstances, the inadmissibility of hearsay testimony or evidence is entirely compatible with the burden of proof requirements that are a standard feature of both criminal and civil proceedings. While the standards of admissibility with regard to hearsay evidence are deliberately and understandably set high, however, the legal process recognizes that there are exceptions to the rule in which such evidence is permitted because of the unavailability of a witness or because relevant documents are unavailable.
Changes to the hearsay rule are not, consequently, likely or even desirable. Exceptions to the rule exist and are recognized as valid, including witness testimony as to the reaction of another party to the event in question, or to the state of mind of a dying individual. As long as counsel for the other side is permitted to cross-examine the witness providing the hearsay testimony, such counsel is free to question the validity of that testimony and to raise doubt in the minds of jurors or of a judge as to the witness’ credibility.