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Hearsay and Exceptions

Hearsay and Exceptions

(p.181) 6 Hearsay and Exceptions
The Psychological Foundations of Evidence Law
Michael J. SaksBarbara A. Spellman
NYU Press

Witnesses typically may testify only about things they have personal knowledge of. But exceptions to that rule permit witnesses to testify to what they have learned from others, outside the courtroom, and that testimony to be offered to prove the truth of matters witnesses have no first-hand knowledge of. Courts and commentators have noted that hearsay testimony comes with various infirmities. Because the person with first-hand knowledge is not testifying, truth-seeking tools (oath, demeanor, impeachment, cross-examination) cannot be employed to evaluate the declarant's sincerity, memory, perception, or communication. Because of those worries, and concern that jurors don't appropriately discount hearsay evidence, hearsay exceptions are predicated on necessity and trustworthiness. Research has found, however, that in some circumstances people are appropriately skeptical of hearsay. They more readily disregard hearsay than other testimony when so instructed, discount hearsay suffering from specific infirmities, and decrease belief in hearsay the further away it is in a hearsay-within-hearsay chain. But researchers have not specifically studied many exceptions, in part because we do not actually know which exceptions are especially trustworthy. Basic principles of psychology, however, suggest that the courts’ and legislatures’ justifications for the trustworthiness of some exceptions are not well founded. But if, as suggested above, jurors can give the evidence appropriate weight, then admitting it creates no risk. Further research should investigate whether jurors can appropriately weight both current exceptions to the rule and other types of hearsay evidence that have long been considered too dangerous to admit.

Keywords:   cross-examination, hearsay exceptions, hearsay testimony, memory, necessity, personal knowledge, psychology, sincerity, trustworthiness, witnesses

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