Hearsay in United States Law - Theory of The Hearsay Rule

Theory of The Hearsay Rule

The theory of the rule excluding hearsay is that assertions made by human beings are often unreliable; such statements are often insincere, subject to flaws in memory and perception, or infected with errors in narration at the time they are given. Furthermore, someone testifying in court regarding another's out-of-court statement may have misheard or misremembered that statement, in addition to possibly having misinterpreted the speaker's sincerity, etc. The law therefore finds it necessary to subject this form of evidence to “scrutiny or analysis calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal (judge or jury) to estimate it at no more than its actual value”.

Three tests are calculated to expose possible weaknesses in a statement:

1. Assertions must be taken under oath
2. Assertions must be made in front of the tribunal (judge or jury)
3. Assertions must be subject to cross-examination.

Assertions not subject to these three tests are (with some exceptions) prohibited insofar as they are offered testimonially (for the truth of what they assert).