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INTRODUCTION
The centrality of the judicial process to the stability of society implies the importance of what goes on in courts. Courts are not omnipotent oracles dispensing justice according to their whims and caprices. They are guided by rules, of both substantive and procedural law. The quality of justice obtainable in the courts, and consequently the credibility of the judicial process, depends on the nature of these rules.
On the procedural side, many jurisdictions have detailed rules of evidence which regulate what facts the court may receive in the resolution of disputes brought before it. The hearsay rule is one such rule. It is essentially one which excludes evidence. An old principle, having its roots in the common law, the rule continues to endure heavy criticism and is still a feature of the evidentiary process of many jurisdictions.
The purpose of this article is to examine the underlying principle for this exclusionary attitude towards hearsay evidence in the USA and in Nigeria. Both are common law countries. However, the former's legal system is more advanced than the latter's. It is therefore thought that comparing the justifications in both jurisdictions will help and inform current reform efforts in Nigeria. Similarly, this article will be a source of education on this aspect of evidence.
The article is divided into three parts. The first examines the meaning of hearsay and the rule against hearsay evidence. The second part explores the theoretical and practical justifications for the exclusion of hearsay evidence; this is the core of the article and explores the rationale for the rule. The last part offers a conclusion.
Unlike Nigeria's federal system, the component states in the USA have autonomous legal systems. Each state has its own rules of evidence. There also exist the Federal Rules of Evidence (Federal Rules). Most states have adopted the Federal Rules. This article concentrates on the Federal Rules, which are used as a model in the USA.
DEFINITION AND STATEMENT OF THE RULE AGAINST HEARSAY EVIDENCE
What is hearsay evidence?
It may appear a little doctrinaire to focus on the meaning of hearsay evidence. Some may argue that, even without a conceptual definition of the subject, practitioners and judges, who grapple with it, can recognize hearsay evidence when they confront it. Yet, as the avalanche of literature on the subject and plethora of cases show, much of the perplexity involved in the regime of hearsay derives from the characterization or non-characterization of evidence as hearsay. Indeed, judges often make hair-splitting distinctions as to whether a piece of evidence is hearsay or non-hearsay.
Consistent with the confusion surrounding all aspects of hearsay, its definition is as controversial as the direction of reform efforts on the rule. Professor Roger Park asserts that “a perfect hearsay definition is unattainable”.Footnote 1 This is not surprising; after all, it has been suggested that hearsay pervades all aspects of life and that “implicit in all testimony is one type of hearsay that forms the basis for all of our perceptions and that cannot be removed”.Footnote 2 So entrenched is hearsay in our daily lives that one commentator suggests that “the rule treating hearsay as presumptively inadmissible if applied to all hearsay would be epistemologically suicidal”.Footnote 3 Indeed, hearsay may feature in our daily lives but, in the context of the litigation process, different and, some would say,Footnote 4 more important considerations, come into play. As Moorehead rightly argues, “regardless of the magnitude of the non judicial decision … the use of hearsay in court differs from its use in daily life in three significant respects”.Footnote 5 First, in the ordinary setting the decision maker, usually a private person, has much more information on the circumstances than does the trier of facts in a court setting. This information enables him to weigh the hearsay and to ascribe whatever reliability he desires to it. Secondly, the outcome of a trial in a court setting has more far reaching implications than do private or personal decisions. Thirdly, in the litigation setting, the decision has a corporate nature which may result in the imposition of a penalty by the state and the possibility of an un-rectifiable mistake. The very integrity of the system may be at stake if a decision is based on questionable hearsay. One may add that, in personal matters, it is easier to correct wrong decisions or indeed to suffer such mistakes with equanimity. Not so for a “corporate” judicial system. Correction, if available, may only be at the cost of tortuous appeals and any mistake may occasion a miscarriage of justice which strikes at the very root of society.
As a result, notwithstanding the prevalence of hearsay in every-day activities, it is important, when it comes to the trial process, to isolate the concept for special treatment. This much is conceded even by proponents of the pervasiveness of hearsay.Footnote 6 However, this overlap bedevils the definition of hearsay, which is as varied as are scholars on the subject.
The hearsay concept arose as part of common law.Footnote 7 As with most common law concepts, experience and practice came first, while analysis and conceptualization came later. An eminent scholar and one of the earliest writers on the subject of evidence, Stephen, formulated the hearsay rule as: “[a] statement oral or written made otherwise than by a witness in giving evidence, and statement contained or recorded in any book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated.”Footnote 8
The editor of Phipson's Law of Evidence perceives the matter this way: “oral or written statements made by persons who are not parties and are not called as witnesses are inadmissible to prove the truth of the matter stated”.Footnote 9 A more contemporary common law writer criticizes both definitions. Sir Rupert Cross argues that Stephen's formulation would tend to regard a witness's narration of his out-of-court statement as hearsay.Footnote 10 He contends that this would be wrong since, where a witness repeats his out-of-court statement, it is usually to show consistency and not for the truth of the statement. He rightly levels two criticisms against Phipson's definition. First, the definition would seem to exclude a party's reported statement and to remove admissions and confessions from the purview of hearsay. Secondly, the expression “persons who are not called as witnesses” may suggest that the repetition, by one witness, of an out-of-court statement of another witness, would not be hearsay. This cannot be so. In defining hearsay, Morgan seems to emphasize its dangers. Thus, he states that: “[a]nalytically, an utterance offered for a purpose which requires Trier to treat the utterer as a witness is hearsay unless the utterer was, when making it, subject to all conditions prescribed for witnesses.”Footnote 11
As this article will demonstrate, the principal concern about hearsay is the seeming unreliability of the evidence. Such unreliability arises from the fact that the normal conditions prescribed for witnesses are usually lacking in the case of hearsay. Yet, it is conceptually misleading to view hearsay only as evidence or statements made otherwise than under prescribed conditions for witnesses. For instance, evidence given in a previous judicial proceeding which is tendered in a subsequent proceeding will be hearsay. This will be so notwithstanding that in the previous proceeding the normal conditions prescribed for witnesses obtained. In this respect, Morgan's definition will appear a little restrictive. These examples illustrate the difficulty associated with definitions generally and with defining a concept as controversial as hearsay.
If scholars have had problems defining hearsay, how have legislatures fared? This article will consider the statutory definition of the concept in the two jurisdictions: the USA and Nigeria. The Federal Rules are taken as representative of the US position, while acknowledging that some US states have not adopted those rules.
Definition under the Federal Rules of Evidence
The Federal Rules attempt a fairly detailed definition of hearsay. In doing so they also provide specifically for statements which would not be considered hearsay. This thorough scheme is enacted by rule 801 which states:
“(a) Statement. A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A ‘declarant’ is a person who makes a statement.
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
It has been suggested that the objective of the Federal Rules is to whittle down the hearsay concept to something much narrower than its common law original.Footnote 12 Yet, some others, like Weissenberger, believe that “a central problem of the hearsay system, if not the singular problem of greatest magnitude, is that the evolution of the common law has given contemporary evidence law an excessively dense and overburdened hearsay definition.”Footnote 13 Given the fact that common law is the progenitor of modern evidence jurisprudence, it is suggested that, whilst it is desirable continually to improve the rules of evidence, a clean break with common law is hardly realistic. Nonetheless, as subsequent discussion will reveal, the Federal Rules do depart from common law in important respects.
A close analysis of the Federal Rules definition reveals that, for evidence to be characterized as hearsay, it must be: a statement; made by a person other than while testifying at the trial or hearing; and offered to prove the truth of the matter asserted. On the surface, this analysis appears straightforward, but the determination of the content of each ingredient of the definition does present confusion and disagreement.
Statement
The Federal Rules adopt a restrictive meaning of “statement”. For evidence to qualify as a statement, it must be an assertion. The assertion may be oral or written. It may also be nonverbal conduct, provided the actor intended that conduct to be an assertion. Unfortunately, the word “assertion”, which is dispositive of whether or not evidence is a statement, is not defined. Certainly declarations and expressions of fact or opinion will qualify as assertions and therefore qualify as statements under the first limb of rule 801(a). However, doubts exist as to whether other verbal expressions like questions and exclamations also qualify. This issue is but one instance of the controversy as to whether conduct constitutes a statement.
Prior to the adoption of the Federal Rules, common law prevailed and the hearsay rule applied to verbal statements and also to conduct. This expansive application of the rule found expression in the celebrated English case of Wright v Tatham.Footnote 14 The action involved the challenge of a will, on the ground that the testator was not of sound mind. The evidence offered by the defendant, the propounder of the will, included several letters that had been written to the testator by persons who had since then died. Although the letters did not directly assert the mental competence of the testator, the defendant offered them all as relevant, on the theory that their tenor and content implied the belief, on the part of the authors, that the testator was competent, because they addressed him as one would address a normal person. The Exchequer Chamber and the House of Lords held the letters to be hearsay and therefore inadmissible. In the words of Baron Parke: “[p]roof of a particular fact, which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person in the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible”.Footnote 15
As always, hearsay questions dove-tail into issues of relevancy. While Baron Parke's statement is classic, it appears that the letters could also have been rejected on the ground that they were not relevant.Footnote 16 Unfortunately, the interface between hearsay and relevancy does not seem to receive extensive attention.Footnote 17 On the other hand, the hearsay field has been explored extensively. Indeed the Advisory Committee's note alludes to five categories of evidence which have been treated as hearsay at common law.Footnote 18 These are: (1) verbal assertions; (2) assertive nonverbal conduct; (3) non-assertive nonverbal conduct; (4) non-assertive verbal conduct; and (5) assertive verbal conduct offered as a basis for inferring something other than the matter asserted.
The Federal Rules discriminate between these categories. Evidence in categories (1) and (2) is characterized as a statement and therefore can be hearsay. The Advisory Committee considered that evidence in categories (3), (4) and (5) would not present the usual hearsay dangersFootnote 19 of insincerity, mis-communication or faulty perception. Therefore it was thought they could be admitted without any, or at reduced, risk.Footnote 20 On the other hand, it has been contended that this claim is untenable. In an illuminating article, Olin Guy Wellborn argues that an antecedent perception or memory which was faulty is not cured by the manner in which the non-witness may subsequently demonstrate such perception or memory.Footnote 21 Furthermore, he notes that the danger of mis-communication is more pronounced with conduct than with oral expressions.Footnote 22 On the danger of insincerity, Wellborn rejects the notion that, because the out-of-court actor has no intent to communicate (that is, by his conduct), he would not intentionally mislead.Footnote 23 Either side of the divide has considerable merit, although it would be difficult to imagine how a person would intentionally mislead unless they intended their conduct to be an assertion. Given the considerable tension between statements and circumstantial evidence, there is a need to maintain a delicate balance between the two. Such a tidy logical balance is not very easy. Yet rule 801 appears to be a fair compromise. To urge an expansive and all-inclusive definition of a statement, and by extension hearsay, would have the effect of legislating circumstantial evidence out of existence, especially as it is merely implied by rule 401. By making the intention of the actor the focal point in determining whether conduct should be treated as a statement, the Federal Rules indirectly preserve circumstantial evidence. Like hearsay, circumstantial evidence has its own dangers. Thus, there is a requirement for the caution in some jurisdictionsFootnote 24 that, for circumstantial evidence to be acted upon, it must admit of only one conclusion or inference.
When evidence is a statement, the inquiry usually shifts to the credibility of the maker. Seldom does the meaning, intended by the maker, engage much attention. As a result, it would be unreliable to treat conduct, which the actor does not intend as an assertion, as a statement. On the other hand, no greater danger is occasioned by excluding such conduct from the purview of statement, and consequently rendering it admissible. The trier of facts instinctively realizes that this is a matter calling for inference and therefore requiring caution, so as to make the correct inference. In any event, the inference would belong to the trier of facts. All things being equal, he would take into account other circumstances in the case, before drawing the necessary inference. In the case of a conduct that is treated as a statement, the inference is imputed to the actor.
It is conceded that such thin distinctions may sometimes lead to confusion and, in some instances, hard cases. The latter may be illustrated by United States v Zenni (Zenni)Footnote 25 and United States v Lewis (Lewis).Footnote 26 In Zenni, government agents answered the telephone several times while searching the premises of the defendant. The unknown callers gave directions for the placing of bets on various sporting events. The defendant objected to the admissibility of the utterances of the betters telephoning in their bets, but the court held that the utterances were non-assertive verbal conduct and therefore not hearsay under rule 801. They were thus admissible. In Lewis, the issue was the admissibility of questions asked by unidentified callers. The appellants had electronic pagers at the time of their arrest. Later, the pager associated with Lewis beeped and the police officer called the number displayed on the pager. The officer identified himself to be Lewis. The person at the other end asked, “Did you get the stuff?” The officer answered in the affirmative. Then the person asked, “where is Dog?”, to which the officer responded that “Dog” was not available. At the trial, evidence revealed that Dog was the nickname of the other appellant. On the admissibility of the questions asked by the unidentified caller, the court held that those questions did not qualify as statements under rule 801 and were therefore incapable of being hearsay. They were, consequently, admissible.Footnote 27
Even though, on the face of these decisions, the defendants might appear to have been prejudiced by the indirect “assertions” of the unidentified callers suggesting that bets were placed on the defendant's premises (in the case of Zenni) and that the defendants received drugs (in the case of Lewis), can it seriously be argued that the jury, or other trier of facts, should not know of the circumstances of those calls? A prudent jury would then proceed cautiously, being clearly conscious of the fact that the callers had not ascribed any particular meaning to their questions. Suppose that the unidentified callers had made direct assertions, any trier of facts would naturally dwell on the credibility of those callers. Thus, there should be a conceptual distinction between the two scenarios. Rule 801(a) maintains that balance, even if it is a thin one.
The statement must be made by a person other than while testifying at the trial
Consistent with the rationale for the hearsay rule, for a statement to qualify as hearsay it must be made outside the proceeding in which it is offered in evidence. The typical situation is where a witness repeats, in court, what someone else told him. However, practical and analytical problems attend a situation where the out-of-court declarant is a witness in the case in which his out-of-court statement is offered. Two scenarios are imaginable. Suppose a witness, A, asserts what another witness, B, told him. That will be hearsay. Suppose also that a statement, which A previously made, is offered, in the case, through A himself.
Prior to the Federal Rules, there were two views regarding the treatment of such a statement.Footnote 28 The first view held that, in so far as the statement was not made in the proceeding in which it was tendered as evidence, it was to be considered hearsay.Footnote 29 Therefore, other things being equal, that statement was inadmissible. A contrary viewFootnote 30 took the position that, since the out-of-court declarant was available, and indeed a witness in the proceeding, the underlying dangers, which necessitate the hearsay rule, disappear, thus eliminating the need to treat the out-of-court statement as hearsay. However, proponents of the first view would counter that the presence of the declarant is not a sufficient guarantee. They contend that, even though the declarant may be cross examined, the fact that the opportunity to cross examine did not exist at the time the statement was made diminishes the efficacy of that cross examination.Footnote 31 The Federal Rules appear to offer a compromise between these two competing views. Rule 801(d)(1) states:
“A statement is not hearsay if (1) Prior statement by witness - The declarant testifies at the trial or hearing and subject to cross examination concerning the statement and is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other preceding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person.”
The effect of these provisions is that certain prior statements of a witness are admissible, having been expressly precluded from the hearsay definition. This assuages proponents of the liberal (second) view. However, the rule prescribes two conditions for such statements to be admissible. First, the out-of-court declarant must be available for cross examination. Secondly, the statement must fall under any of three categories contained in the rule, that is to say that it must be: a prior, inconsistent statement made under oath; a prior statement consistent with the witness's present testimony and offered to rebut an express or implied charge, against the declarant, of recent fabrication, improper influence or motive; or a statement of identification.
All other prior statements appear excluded. The three classes of prior statements are indeed exceptional in the sense of their high relevancy. To determine the truth of a witness's present testimony, it will be highly relevant for the trier of facts to know that the witness had earlier made a statement inconsistent with his present testimony. However, the limitation on the admissibility of such statements to those “given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition” is suspect. The gravamen of rule 801(d)(1)(A) is the assessment of the credibility of the witness. To that extent, the evidence of a witness who had previously made a statement inconsistent with his present testimony, but not under oath or in a formal setting, is no more reliable than that of a witness whose prior inconsistent statement was made under oath and in the circumstances described in the rule.Footnote 32
A more fundamental issue is the use to which statements covered by rule 801(d) can be put. Many writers assert that they can be admitted as substantive evidence.Footnote 33 It is doubtful if by “substantive evidence” it is meant that the court can rely solely on the prior statement of the witness. Suppose a witness, who had previously made a statement, now recants.Footnote 34 It is arguable that the witness's prior inconsistent statement made under oath can constitute positive evidence of the facts in issue. Reference may be made to the case of United States v De Sisto (De Sisto)Footnote 35 which is taken as having informed rule 801(d).Footnote 36 In De Sisto a witness's prior statements made first without oathFootnote 37 and twice under oathFootnote 38 were held admissible as proving the truth of what they asserted. Further support that this is the intention of rule 801(d) may be found in the restriction of rule 801(d)(A) to prior statements made under oath. Thus, such previous statements may be taken as going beyond the narrow scope of discrediting or rehabilitating a witness or of corroborating his evidence of identification, and that is the reason the rule prescribes all the safeguards.
While such an argument is plausible, there appears to be a logical risk in picking and choosing the statements of a lying witness. In a criminal case, the danger is more heightened and should be sufficient to raise reasonable doubt in the mind of the trier of facts. Thus, it is ideal that, despite the notional possibility of using rule 801 statements as substantive evidence, they should be limited to the purpose of discrediting or rehabilitating a witness or as corroborative evidence of identification. Nigerian law favours the use of prior evidence of a present witness inconsistent with the witness's present testimony, only for the purpose of impeachment and not as substantive evidence.Footnote 39
Offered to prove the truth of the matter asserted
Traditionally, the determination of whether a statement is hearsay has been dependent on the purpose for which it is offered in court. The controlling consideration is whether the statement is offered to prove the truth of what it asserts. The Federal Rules retain this test. Accordingly: “whenever a statement is offered for a purpose that does not depend upon the veracity of the out-of-court declarant, because its value does not turn on the truth of its content, it does not fall within the scope of the hearsay rule”.Footnote 40
The test appears to be whether there is a match between the assertion and what it is being offered to prove.Footnote 41 Sometimes it is easy to determine the purpose for which evidence is offered. The substantive law and the ingredients or elements necessary to establish a case prescribe these. As a result, one can discern the purpose for which evidence is offered by referring to the substantive law. Indeed, counsel may inform the court as to the reason for adducing evidence of a statement. That way, the first element (ie the proponent's purpose) may be easily appreciated and in fact distinguished from the intrinsic assertion involved in the statement.
The other aspect of the equation, the truth of the matter asserted, is more problematic. The problems are an extension, or indeed a recurrence, of the overlap between assertions and conduct. Conceptually, the dispositive consideration is the intention of the declarant. A declarant's assertion may mean that which it literally says. In such a case, the analysis is simple. It is hearsay if the proponent is offering the evidence as truth of its intended meaning. Yet, every statement asserts not only the point plain on its surface but also some underlying points. Although rule 801 seems to emphasize the intent of the declarant, it has been rightly argued that an indirect assertion is hearsay if the speaker meant to assert the point for which his statement is offered; the task of the court is deduce his intended meaning, regardless of so called “plain meaning”.Footnote 42
Should the court's search be objective or subjective? Ideally, it should be subjective and the inquiry will be what that particular declarant intended. However, as with every attempt at determining intent, this may prove difficult. This is even more so since the declarant is, usually, unavailable. Thus, the court would have to work out, in the light of the context and circumstances of a particular case, what the declarant intended. It is not unlikely that the court would factor into its consideration what a reasonable person, in those circumstances, would intend by the statement. This may be a subjective inquiry, but it does have an objective undertone.Footnote 43
The test to determine the purpose or truth of the assertion is not always easy. The borderline, between when a statement is offered for its truth and when it is offered just to show that it was made, has sometimes produced results which some may consider unsatisfactory. The usual situationsFootnote 44 in which a court may deny that a statement is offered for its truth are where it is otherwise circumstantially relevant as showing state of mindFootnote 45 or the effect on the hearer or demonstrating the declarer's particular knowledge.Footnote 46
This apparent problem, which had earlier been identified as the tension between the hearsay rule and circumstantial evidence, is illustrated by the case of United States v Snow.Footnote 47 The question was the admissibility of a piece of name tape with the words “Bill Snow”. The tape was affixed to a case containing a gun. It was a trial for possession of an unregistered firearm. The court held that the name tape was not hearsay but instead circumstantial evidence.Footnote 48 The decision appears unsatisfactory. Certainly the person who affixed the tape to the case intended to say that the bag belonged to Bill Snow. Since it was a case of possession, the fact to be proved was the ownership or possession of the case. Therefore the name plate was offered to prove what it asserted. Thus the assertion coincided with the purpose of offering the statement and it ought to have been treated as hearsay.
The overlap between the two concepts will definitely continue, but much depends on the courts, which should avoid mechanical or legalistic interpretations of intent and adopt a purposive attitude. In this way, statements which are offered as evidence of their intrinsic truth would be caught by the hearsay rule, while the province of circumstantial evidence is at the same time not eroded.
Definition under Nigerian law
Before the advent of British rule, and consequently the establishment of English style courts, adjudication of disputes in Nigeria was carried out at different fora, ranging from informal family or village councils to customary courts presided over, in some cases, by traditional rulers.Footnote 49 Although these courts dispensed justice fairly and impartially and always preferred live testimonies to secondary evidence, there was no technical rule prohibiting hearsay evidence. With colonialism came the introduction to the country of English model courts and the extension of the English common law and doctrines of equity.Footnote 50 An incidence of this colonial nexus was the adoption, in Nigeria, of the English common law of evidence. In this way, the hearsay rule became applicable in Nigeria.
However, in 1943, an Evidence OrdinanceFootnote 51 was passed in Nigeria. This ordinance became operative in 1945 and has been in force since then. It has been restyled the Evidence ActFootnote 52 which is how it is referred to in this article. There is an ongoing effort to reform this act. This has resulted in the preparation, by the Nigerian Law Reform Commission, of a Draft Evidence Decree.Footnote 53 The Evidence Act is still extant, as the Draft Evidence Decree has not been enacted into law. This article will refer to both instruments, the former representing the law as it is, and the latter representing the direction of reform efforts.
The Evidence Act was based on Stephen's A Digest of the Law of Evidence Footnote 54 and therefore did not depart much from the common law. Besides, section 5(a) of the act provides that nothing in the act shall prejudice the admissibility of any evidence which would, apart from the provisions of the act, be admissible. This provision enables inclusive rules of common law to apply where the act is silent.Footnote 55 This is because, prior to the enactment of the Evidence Act, such evidence was admissible and therefore would qualify as “evidence which would apart from the provisions of this Act be admissible”.Footnote 56 It is noteworthy, though, that this provision is not authority for the application of the English notion of the hearsay rule in Nigeria. The reason is that the section only tolerates common law rules authorizing admissibility and not those mandating inadmissibility. The hearsay rule is one of exclusion. Having said that, three further points should be made. First, the Evidence Act is not completely devoid of provisions relating to the hearsay rule. Secondly, the courts continue to apply the common law hearsay rule, sometimes without reference to the Evidence Act. Thirdly, the Draft Evidence Decree attempts an explicit and conceptual treatment of the hearsay rule.
Section 77 of the Evidence Act provides:
“Oral evidence, must in all cases whatever, be direct-
(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
(c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.”
This is the nearest the Evidence Act comes to providing for the hearsay rule. On its face, section 77 appears severely limited in scope. This is because it deals with only oral evidence. A strict interpretation of the section would entail that documentary evidence cannot be hearsay. Section 76 seems to accentuate such a conclusion. It provides that “all facts except the contents of documents may be proved by oral evidence”. The Evidence Act's scheme maintains a distinction between relevancy and admissibility (means of proof). It is possible to interpret the two provisions as allowing oral evidence to prove relevant facts. However, when the relevant fact is the content of a document, then the document itself is to be produced. Unfortunately, unlike in the USA, the courts in Nigeria initially shied away from analysing and applying the provisions of sections 76 and 77 of the Evidence Act. Instead, they applied the common law doctrine of hearsay. Thus, Nigerian courts frequently alluded to the statement of the Judicial Committee of the Privy Council in Subramaniam v Public Prosecutor. Footnote 57 That committee had stated: “[e]vidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to show by the evidence, not the truth of the statement, but the fact that it was made.”Footnote 58
This practice is gradually changing, with passing reference now routinely made to sections 76 and 77 of the Evidence Act.Footnote 59 There is, however, still need for a fuller and careful review of those statutory provisions. The judicially accepted definition of hearsay in Nigeria is evidence of a statement made to a witness by one who is not himself called as a witness and which is offered to prove the truth of the statement.Footnote 60 Similarly, notwithstanding the narrow confines of section 77 of the Evidence Act, the courts extend hearsay to statements contained in documents.Footnote 61
While the substance of the definitions of hearsay in both the USA and Nigeria does seem similar, it appears that the prevailing doctrine in Nigeria does not attempt an exhaustive treatment of the niceties of the definition as obtainable in the USA. Conceptual issues, such as the scope of the rule and its application to conduct, have received minimal judicial or even academic examination.Footnote 62 It is against this backdrop that one appreciates the attempt of the Draft Evidence Decree to elevate the hearsay rule to a conceptual level. The decree takes the rule beyond the simplistic notion of whether evidence of an out-of-court statement is offered as proof of its truth. It defines hearsay and enumerates situations of its admissibility. Even if not entirely satisfactory, the definition offered by the decree is an improvement on the current regime which is marked by confusion and resort to common law.
Section 33 of the Draft Evidence Decree provides: “[h]earsay means a statement (a) oral or written made otherwise than by a witness in a proceeding; (b) contained or recorded in a book, document or record whatever proof of which is not admitted under any provision of this Decree which is tendered in evidence for the purpose of proving the matter stated in it.”
Three points emerge from this definition. First, the evidence must be a statement. Secondly, it may be made other than in a proceeding or be contained in a document. Thirdly, it must be offered in evidence to prove the truth of the matter stated in it. The definition accords with that contained in the Federal Rules. The controversy, noted above, as to the scope of “statement” may also arise under the scheme of the Draft Evidence Decree; this is not mitigated by section 260(1) of the decree which defines “statement” to include any “representation of fact whether made in words or otherwise”. This would cover conduct. Although nothing is said about intention, unlike the case under the Federal Rules, the definition contained in section 260(1) seems to imply intention. A representation involves the intention of the representor. Therefore, if the decree is enacted into law, the courts will be justified to exclude, from the purview of hearsay, any conduct which the actor does not intend as a representation of fact.
A troublesome aspect of the definition is the phrase “made otherwise than by a witness in a proceeding”, contained in section 33(a) of the draft decree. This reflects one of the problems that plague the hearsay doctrine. There is an understandable ambivalence in the treatment of testimony given in a prior judicial proceeding.Footnote 63 A mechanical approach would regard such evidence as hearsay if offered, for its truth, in a later proceeding. On the other hand, since the hearsay dangers are reduced,Footnote 64 purposive interpretation would not regard such evidence as hearsay. It is arguable that the Draft Evidence Decree prefers the purposive approach and therefore does not regard such evidence as hearsay. Yet, this line of reasoning is fraught with difficulty and is not consistent with the general scheme of the decree.Footnote 65 It complicates analysis. A better compromise is to regard such evidence as hearsay but allow its admissibility as an exception to the rule. Indeed, that appears to be the intention of the decree. This is because section 42 makes provision for the admissibility, under certain conditions, of evidence given in a prior judicial proceeding. This creates an exception to the rule precluding hearsay. The seeming removal of such evidence from the definition of hearsay is therefore not only conceptually unsound but also at variance with the general tenor of the decree.
Another curious point is that contained in section 33(b). It will be recalled that the section provides that hearsay means a statement “contained or recorded in a book, document or record whatever proof of which is not admitted under any provision of this Decree”. There is a measure of contradiction in this provision. Apparently the section recognizes written hearsay. Thus, it talks of an “oral or written” statement and of a statement “contained or recorded in a book, document or record”. In the history of hearsay and its numerous exceptions, documents feature significantly. Whether or not a document is admissible, its contents are assertions by its maker.Footnote 66 Again, it complicates the analysis to exclude documents from the purview of the definition of hearsay simply because they are rendered admissible by the decree. It appears that a general shortcoming of section 33 of the Draft Evidence Decree is its inability to maintain a conceptual distinction between what is hearsay and what is admissible hearsay. The characterization of evidence as hearsay does not conclusively render it inadmissible. As the decree itself recognizes, there are many exceptions to the rule excluding hearsay. Yet these exceptions should not influence the determination of whether evidence is hearsay.
Prohibition against hearsay evidence
The tenor of both the Federal Rules and current law in Nigeria is that of a general prohibition against the admissibility of hearsay evidence. It is said that there are exceptions to every general rule. That statement cannot be truer with any rule in law than it is with the hearsay rule. The rule has become so beset with exceptions that some argue that the rule itself should in fact be the exception rather than the rule.Footnote 67 In other words, it is arguable that the rule should be that hearsay is admissible except in certain circumstances. However, current doctrines in both jurisdictions still regard the general rule as that of exclusion. Federal Rule 802 states that “hearsay is not admissible except as provided by these or other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress”. Similarly, section 34 of the Draft Evidence Decree provides that “[h]earsay evidence is not admissible except as provided in this part of this Decree or by any other enactment”. This article alluded earlier to the fact that the Evidence Act does not contain any express provision on the hearsay rule, but that the rule can be implied from section 77 of that act. Both jurisdictions reject an absolute approach to the ban on hearsay. As a result, there are numerous exceptions to the rule, although a discussion of those exceptions is outside the purview of this article. This attitude is reflected even in the provisions rendering hearsay inadmissible.
RATIONALE FOR PROHIBITION AGAINST HEARSAY
It can be asserted that hearsay is viewed with suspicion in both jurisdictions. This is because it is thought to be less reliable than live testimony.Footnote 68 However, critics canvass that the theory that hearsay evidence is inherently weak and untrustworthy is spurious and a legal fiction,Footnote 69 and that the current principle of exclusion cannot wholly be justified on the basis of a preference for live testimony. They point to the fact that several of the exceptions to the rule do not require proof of the unavailability of the declarant.Footnote 70 Others argue that, although hearsay may give inaccurate information, it does not give misinformation.Footnote 71 Yet, all seem to agree that the perceived weakness of hearsay evidence derives from its susceptibility to what are now known as the four hearsay dangers.Footnote 72 These are the risks of faulty perception, faulty memory, ambiguity and insincerity.
Like every human being, a declarant of hearsay might have misperceived the event in respect of which he spoke. Three concerns have been identified in this regard.Footnote 73 One centres on the speaker's sensory capacities, another on his mental capacities (his ability to process and make sense of what he sees) and the third relates to the relevant physical circumstances that might bear on the opportunity for him to observe the facts. For instance, if the speaker's sensory or mental capacity is impaired, or otherwise not functioning properly, he might misconstrue an event or a fact which he observed. Similarly, if there were circumstances impacting negatively on his observation, his utterance or narration may distort the fact. The concern with faulty memory is understandable. Human memory is short and fallible. Ability to recollect, and therefore to assert correctly, what may have been perceived, may be affected by several factors.Footnote 74 The declarant may confuse or conflate the fact with subsequent events and again this may result in a distortion of the fact.
The third danger, ambiguity, is common with communication and the use of language. It is difficult to use language with precision. The speaker may say one thing while meaning another. The hearer may misconstrue what the speaker said, as words may convey different things to different persons. Besides, the language used may not capture points of detail, qualification or limit.Footnote 75 The danger of insincerity is based on the possibility that the speaker may deliberately lie. Ancillary to this danger is that the in-court witness may also deliberately lie, by ascribing to a “declarant” what the latter never said.
A remarkable point, however, is that every human is prone to these shortcomings. The live witness may have misperceived the events, his memory may be faint and even the language he uses in court may be ambiguous. He may also fraudulently misrepresent. Therefore, in a sense, these dangers are not peculiar to hearsay evidence. However, the difference between the two, and therefore the explanation for the current stricture against hearsay, is two-fold. First, in the case of hearsay evidence, each danger arises at two separate levels. For instance, there is the danger of whether the declarant misperceived the fact and also whether the hearsay reporter misperceived what the declarant had said. There is the danger of whether the speaker remembers the fact accurately and the danger of whether the in-court witness accurately remembers what the speaker said. The trier of facts has to consider whether the declarant interpreted the event properly and also whether the in-court witness properly interpreted the statement made by the declarant. This article has already alluded to the dual nature of the insincerity problem. Secondly, and more importantly, where direct evidence is offered, the trial process provides safeguards that reduce these dangers.Footnote 76 These safeguards, or controlled conditions,Footnote 77 help sift evidence and diminish, if not totally eliminate, the dangers. The absence of these safeguards is regarded as the reason for not admitting hearsay evidence. The safeguards are oath, cross examination and demeanour.
Oath
In both jurisdictions, oral evidence in court is usually given under oath.Footnote 78 The underlying reason for the administration of an oath is that it will induce the witness to speak the truth, because a false testimony would earn them punishment in the world beyond. Similarly, since giving false testimony under oath constitutes the offence of perjury in both jurisdictions, the fear of prosecution and consequent punishment would reinforce the need for a witness to speak the truth.Footnote 79 It therefore has a temporal as well as a spiritual basis. Oath is an answer to the danger of fabrication. The argument against hearsay is that, since the declarant was not under oath when he made the assertion in question, there would be no compelling reason for him to tell the truth. However, some doubt the efficacy of oath as a stimulus to tell the truth. Morgan notes:
“What happened comparatively early to the oaths of compurgators has now unfortunately happened to the oaths of a witness. The deliberate expression by a witness of his purpose to tell the truth by a method which is binding upon his conscience probably still operates as some stimulus to tell the truth; but fear of punishment by supernatural forces for violation of an oath is generally regarded as virtually non-existent, and the threat of prosecution for perjury has little effect.”Footnote 80
Others, while not worrying about the efficacy of oath, doubt if it is a true rationale for the exclusion of hearsay evidence. They contend that, if it is a true basis for the hearsay rule, then out-of-court statements made on oath would be admissible, but this is not so.Footnote 81 Still others, like Wigmore, subsume oath into cross examination: “[i]t is thus apparent that the essence of the hearsay rule is a requirement that testimonial assertions shall be subjected to the test of cross examination, and that the judicial expressions … coupling oath and cross examination, had in mind the oath as merely the ordinary accompaniment of testimony given on the stand, subject to the essential test of cross examination.”Footnote 82
As this article will show, no one rationale dominates. It is possible that not as many people today hold oath in as high esteem as was the case in the past. Yet, even for people without strong religious persuasions, the threat of perjury is a sufficient inducement not to lie. It is not uncommon for lawyers to remind witnesses that false testimonies expose them to prosecution for perjury. Certainly the absence of oath is an important consideration in the hearsay rule.
Cross examination
A significant feature of the adversarial process of litigation obtainable in both jurisdictions is the right of an opponent or adversary to cross examine any witness called by the other party. In some respects, this right has constitutional undertones.Footnote 83 According to Wigmore: “[t]he theory of the hearsay rule is that many possible deficiencies, suppressions, sources of error and untrustworthiness which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross examination.”Footnote 84
Wigmore, regarded as the father of modern American evidence scholarship, thought so highly of cross examination that he described it as “the greatest legal engine ever invented for the discovery of truth”.Footnote 85 To him all other safeguards are subsumed in cross examination. This fascination with cross examination is shared by many other scholars who see cross examination as “security for correctness and completeness of testimony”, and as the best all-embracing reason for the exclusion of hearsay evidence.Footnote 86 As a safeguard against the four dangers, cross examination discloses:
“all data helpful to the trier in determining (1) what information the witness intends to convey to the trier by the language he uses (2) the belief of the witness in the truth of his testimony, that is his sincerity (3) the extent to which what the witness purports to remember is the product of memory or of some other mental process such as reconstruction or the mistaken adoption as his own of the experience of another and (4) the extent to which what the witness testifies that he perceived corresponds to what was then and there open to his observation or capable of being perceived.”Footnote 87
When evidence is put through the crucible of cross examination, the trier of facts is able to evaluate it properly and to ascribe the appropriate weight to it. The idea is that, if the witness misperceived the fact, cross examination will reveal this. If his memory of the fact is defective this will also be apparent upon proper cross examination. Furthermore, if his language is ambiguous, in cross examination he might clarify the meaning which he intends. The controversial issue is whether cross examination is an adequate answer to fabrication. A lying witness has a tendency not to be consistent with either surrounding circumstances or prior statements. Ideally, a well conducted cross examination will therefore reveal inconsistencies and enable the trier of facts to evaluate the evidence. Yet, it has been asserted that “cross examination is probably less useful in exposing fabrication than in exposing defects in memory and perception”.Footnote 88 The well schooled perjurer may be able to withstand cross examination but this is no reason to deprecate the mechanism. Many cases are resolved on matters which emerge during cross examination. In the majority of cases, an effective cross examination will give away an insincere witness. After all, in many jurisdictions, the cross examiner has very wide latitude. For instance, under section 200 of the Nigerian Evidence Act, he can ask the witness any question: “(a) to test his accuracy, veracity or credibility; or (b) to discover who he is and what is his position in life; or (c) to shake his credit by injuring his character.”Footnote 89
There is no doubt that cross examination is an important safeguard. As Mary Morton notes, it does not ensure that evidence is reliable, but “merely exposes the sources of unreliability and provides a basis for evaluating testimony and determining how reliable it is”.Footnote 90 There appears to be a consensus that the absence of this important device is a principal concern which informs the rule prohibiting hearsay. But it is not the sole basis nor is it exhaustive. As we have seen, hearsay in the nature of evidence in prior proceedings is generally prohibited, although there are exceptions to the rule.Footnote 91 It is arguable that, if the absence of cross examination is the only basis for excluding hearsay, statements made where an adversary has had the opportunity to cross examine will ordinarily be admissible. A counter argument would be that such prior opportunity for cross examination would not suffice in a later case where the parties and issues may be different. Nonetheless, it is farfetched to contend that the absence of cross examination is the exclusive rationale for the exclusion of hearsay evidence. It is indeed an important reason, but is complemented by others.
Demeanour
By demeanour is meant the comportment of the witness while giving evidence. The argument is that the solemnity of the court scenario and the possibility of disgrace, coupled with the presence of the adversary, will deter falsehood and intimidate a witness to tell the truth.Footnote 92 In another context, the demeanour of the witness helps the trier of facts to evaluate his evidence and, importantly, to decide whether he is truthful or not. As Mueller and Kirkpatrick note, many mannerisms and human qualities come into the comportment of the witness, and an assessment of these points enables the trier of facts to assess credibility and meaning.Footnote 93 The trier of facts will consider whether the witness is composed or fidgeting. What is his facial expression? How does this witness generally carry himself? All these and moreFootnote 94 have a bearing on whether the witness is telling the truth. They also help the trier of facts to evaluate the evidence.
There is a relationship between demeanour and the other trial safeguards of oath and cross examination. The solemnity of the court room which induces a witness to tell the truth may essentially derive from the oath taken, and demeanour is best evaluated under cross examination.
Where a witness narrates what an out-of-court declarant said, the trier of facts is deprived of the opportunity to observe the out-of-court declarant, who is really the witness, the other merely being a conduit for transmitting the testimony. This deprivation impacts on the evaluation of the evidence. The trier of facts will therefore not have all the factors necessary for him to assess the evidence and ascribe weight to it. This is yet another important concern of both jurisdictions which leads them to, as it were, view hearsay with suspicion.
These three reasons are the traditional bases usually asserted for the exclusion of hearsay. However, they are not exhaustive and to them may be added a myriad of other reasons, some of which are examined here.
Mistrust of jury
A remarkable feature of the Anglo-American trial process is the use of a jury in the determination of facts. The essential characteristic of this practice is the use of disinterested laymen in the resolution of disputes on facts. Here Nigerian law parts ways with its American counterpart for, although the jury system was practised for a short while in Nigeria, it no longer obtains and so this rationale does not apply in Nigeria.Footnote 95
The perception is that hearsay evidence is excluded in order to “prevent errant juries from basing an essential finding upon the slender reed of hearsay evidence”.Footnote 96 There are two aspects to the argument. One is what may be termed jury lawlessnessFootnote 97 or simply misconduct. A jury that appreciates the unreliability of a case, but which is prejudiced, may find in hearsay evidence a peg on which to anchor its decision and camouflage its prejudice. The second aspect is that the jury may simply misperceive the hearsay and give it undue weight.Footnote 98
While these concerns are genuine, they are not peculiar to a jury and are not supported by the history and evolution of jury trials. In the past, juries were free to gather their own information and to use such information in their decisions. It was not until about the middle of the 18th century that restrictions were placed upon the sources of information usable by a jury. Morgan, after surveying the evolution of these restrictions, points out that, by this time:
“The jury had been transformed from a body chosen by the court to determine what the facts were from their own knowledge and from such sources as they deemed reliable without any control from the parties to a body which must depend solely on materials presented in court - most if not all of them by the parties. In other words, the sources of usable information were transferred from the control of the jury to the control of the parties.”Footnote 99
Not supported by the antecedents of the jury system, this rationale has also come under fire from commentators who argue that jurors evaluate complex and sometimes technical evidence, like DNA, and that, after competent closing arguments, jurors should be able to evaluate hearsay evidence.Footnote 100 Besides, some consider this rationale inconsistent with the jury's function as the ultimate fact finder.Footnote 101 There have been some studies on how jurors perceive and treat hearsay evidence. Two such studies revealed that jurors do not over valueFootnote 102 hearsay and are rather scepticalFootnote 103 of hearsay. Although the research is not conclusive and in fact suggests further studies on the matter, the outcome is indeed interesting for it may support both the abolition and the retention of the rule against hearsay evidence. Proponents of the rule will readily argue that, if jurors do disregard hearsay evidence, then it serves no useful purpose to admit such evidence. Opponents of the rule will, on the other hand, argue that no prejudice or injustice is occasioned by the admission of hearsay evidence since jurors do not over value it. Indeed, one of the studies suggests that jurors should be provided with all evidence, including hearsay.Footnote 104 The conundrum continues.
The problem is the seeming focus on jury competence, and even mistrust, as if jurors are peculiarly disabled from evaluating hearsay. While one agrees with Mueller that, no matter what is said about jury sophistication and universal education, the claim that jurors can perform well without the benefit of demeanour evidence and cross examination is suspect,Footnote 105 the point must be made that no human being, juror or non juror, is imbued with the capacity to assess such evidence accurately. This is, perhaps, the reason that the rule applies even to bench trials.Footnote 106 The exclusion of hearsay in Nigeria therefore seems to share this rationale, even though the jury system is not obtainable in that jurisdiction. The underlying issue, which dove-tails into the four traditional dangers, is the difficulty of evaluation. Viewed in that context, the concern with the jury is unanswerable.
Unfair surprise
Litigation is a gamble. The role of rules is to reduce the uncertainty and unpredictability associated with it. If hearsay were freely admissible, it would become difficult to prepare cases. A party would not know what evidence the other had. It is possible, through discovery and deposition, to have notice of the evidence an opponent plans to use. However, where hearsay may be admissible, uncertainty remains and one party may thereby spring a surprise on the other. The hearsay rule operates to avoid such unfair surprise.Footnote 107
Unbridled judicial discretion
Similar to the rationale based on the need to avoid surprise is the argument that the hearsay rule avoids uncontrolled judicial discretion. The argument is not that judges cannot be trusted but that, being human,Footnote 108 they may be influenced by extraneous considerations in the admission or rejection of hearsay and this may have serious consequences on the outcome of cases. An objective way to curtail the influence of a judge's personal predilection is to introduce objective constraints, such as are erected by the hearsay rule. However, the hearsay rule merely reduces the judge's discretion. It does not totally eliminate it. Some of the exceptions under the Federal Rules call for the exercise of judicial discretion.Footnote 109 Even in Nigeria, where there are no residual exceptions, a judge may still reject hearsay which comes under an exception if he considers that its probative value is outweighed by its prejudicial effect.Footnote 110 The concern here is not dissimilar to that shown about the jury. An errant judge, like an errant jury, can admit or reject hearsay as a cloak to cover his human prejudice. He may also be mistaken. Again, this concern is not peculiar to the field of hearsay. The litigation system in both jurisdictions is yet to vest total confidence in the unbounded discretion of judges. Thus, in both civil and criminal processes, rules, regulating procedures, abound and the judge's role is simply to administer them with minimal discretion.
Constitutional rationale
In the province of criminal cases, hearsay evidence comes against a constitutional barrier. The Sixth Amendment to the US Constitution provides:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation: to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” (The Confrontation Clause)Footnote 111
This provision is said to be prone to several interpretations. “Witnesses” may mean everyone whose statement is used against the accused. Alternatively it may mean the witnesses whom the prosecution chooses to produce. Yet again, it may mean all available witnesses.Footnote 112
Strictly interpreted, the Confrontation Clause would forbid all hearsay, thereby not only rendering the rule against hearsay redundant in a criminal case but also stultifying prosecutions in many instances. However, a conspectus of the judicial terrain reveals that the courts, notably the US Supreme Court, evince an attitude favouring the relevance of the rule and deferring to the exceptions. The constitutional concern is with the need for a defendant to confront his accusers. The US Supreme Court has held that prior cross examinationFootnote 113 and the opportunity for subsequent cross examination,Footnote 114 of a hearsay declarant, would satisfy the constitutional requirement. The stance is apposite in the typical setting of a criminal case where the prosecution often desires to use evidence given in a grand jury hearing.
For the general situations regarding the use of an out-of-court statement, the US Supreme Court had previously laid down a two pronged approach to determine whether or not such evidence would implicate the Confrontation Clause. This was done in Ohio v Roberts (Roberts).Footnote 115 It has now abandoned this two pronged approach. Under the court's prior jurisprudence, as represented by Roberts, the first prong, which the prosecution had to satisfy, was that the prosecution must produce the hearsay declarant or show that the declarant was unavailable. Certainly, where the declarant was produced, the accused would have the opportunity of confronting him. To show that the declarant was unavailable, the prosecution had to make good faith efforts to produce him. Whether this was done depended on the facts of each case.Footnote 116 The other prong of the test was that the prosecution must make a showing of the reliability of the hearsay. Here, a statement was presumed reliable if it came under a firmly rooted exception. Two inferences arose from the second prong of the test. First, it meant that the prosecution had a burden of showing reliability of the statement if it did not come under a firmly rooted exception. This would appear to be so even where the statement came under an exception. The problem was that the category of “firmly rooted exceptions” was wide.Footnote 117 Secondly, it was arguable that a statement satisfying the two pronged test was admissible even if it did not come under a recognized exception. While there seems not to have been a judicial endorsement of the point, the view appears to be a regrettable implication of the tests. Unfair as it might have seemed, that consequence was logical if considered along with the court's position that the accused may freely adduce hearsay evidence which exculpates him.Footnote 118 It is, perhaps, because of this seeming anomaly and the criticisms directed towards the Roberts decision that the US Supreme Court essentially overruled that precedent in the 2004 case of Crawford v Washington (Crawford).Footnote 119
In Crawford, the US Supreme Court, held that the Roberts principle of admitting out-of-court statements, made by unavailable witnesses, which were shown to come under firmly rooted exceptions or to bear particularized guarantees of trustworthiness, violated the Confrontation Clause when applied in a criminal case. Besides, the court felt that the principle was unpredictable, vague and manipulable. Instead, the court introduced a new standard in this area. It held that, where testimonial evidence was concerned, the Confrontation Clause demands that, for an out-of-court statement to be admissible, there must be a showing of unavailability of the declarant and a prior opportunity for cross examination. It drew a distinction between testimonial and non testimonial statements, holding that the latter did not implicate Confrontation Clause issues. However, the court declined to define “testimonial”, preferring to leave that to another day.Footnote 120 While the court could afford such luxury in Crawford, the facts of which did not call for a clear articulation of what would or would not be testimonial statement, it was soon confronted with cases requiring much closer calls on whether the statements at issue were testimonial. The two cases, Davis v Washington (Davis)Footnote 121 and Hammon v Indiana (Hammon),Footnote 122 were decided jointly but had different outcomes. They illustrate the point that, far from resolving any perceived uncertainty associated with Roberts, by its introduction of the dichotomy between testimonial and non testimonial statements, the court merely changed the dimension of the uncertainty.
In Davis, a 911 [emergency services] operator ascertained from the declarant that she had been assaulted by her former boyfriend, the defendant, who had just fled the scene. The declarant did not testify at the trial of the defendant for felony violation of a no-contact order, but the court admitted the 911 recording, despite the defendant's objection based on the Confrontation Clause. The US Supreme Court held that the portion of the 911 recording identifying the defendant as the assailant was not testimonial and, therefore, did not raise Confrontation Clause issues. However in Hammon, police responded to a domestic disturbance report at the home of the declarant and the defendant. Upon their arrival, the declarant told police that nothing was wrong, but gave them permission to enter the house. Once inside, the police separated the declarant and defendant. One officer stayed with the defendant while another interviewed the declarant and had her complete and sign a battery affidavit elsewhere in the house. The police prevented the defendant from being present during the declarant's interview. The declarant did not testify at the trial but her affidavit and testimony from the officer was admitted over the defendant's Confrontation Clause objection. The US Supreme Court held that the declarant's affidavit was testimonial and, absent a finding that the defendant had forfeited his Sixth Amendment right to confront witnesses, the Sixth Amendment excluded its admission. The court would still not indulge in an exhaustive definition of the term “testimonial”, but at least went further than it did in Crawford, stating that:
“Without attempting to produce an exhaustive classification of all conceivable statements - or even all conceivable statements in response to police interrogation - as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”Footnote 123
Of course, this improvement on Crawford still leaves open the test for determining what statements would qualify as testimonial in respect of statements by declarants other than to police personnel or in the course of police interrogations.Footnote 124 Indeed, the court admitted that much.Footnote 125 The Crawford precedent, with its progeny, is open to the criticism that the standard enunciated in it (that an out-of-court statement of one who is not a witness is admissible only if it not testimonial or if it is testimonial only if the out-of-court declarant is unavailable and the defendant had an opportunity to cross examine the declarant) is artificial and as imprecise as the Roberts standard which it overruled. However, the ramifications of that decision are outside the scope of this article. It suffices for our present purposes that the US Supreme Court's jurisprudence recognizes the tension between hearsay and the Sixth Amendment right of a criminal defendant to confront witnesses against them.
It is clear that the restrictive attitude shown to hearsay does have constitutional dimensions. The Confrontation Clause, in criminal cases, and the right to due process caution against the free use of hearsay. In Nigeria, both come within the rubric of a fair hearing. In both civil and criminal proceedings, parties are entitled to a fair hearingFootnote 126 and an essential content of this right is the right to confront adversaries. That hearsay evidence negates that right is one of the reasons it is generally inadmissible.
Other rationales
The category of rationales is not closed. Numerous other reasons are proffered to justify the maintenance of the rule against the admissibility of hearsay evidence. It is, for instance, said that the rule protects the underdogFootnote 127 in the trial process and prevents abuse of governmental power.Footnote 128 Besides, it is said to shift the burden of tracking witnesses to the prosecution.Footnote 129 Professor Charles Nesson even rationalizes the rule on the need for stability of verdicts and avoiding recanting by witnesses.Footnote 130 Others suggest that the niceties of the rule are hard to learn and cherished once learnt. Therefore lawyers, who have spent much time and resources learning the nuances of the rule, resist attempts to do away with it, so as to retain their competitive advantage in the trial process.Footnote 131
As a result of the presence of the four infirmities, hearsay evidence is not just like any other evidence.Footnote 132 It presents an intractable complexity and subtlety,Footnote 133 requiring an unusual approach. The hearsay rule, even if seen as a rule of thumb, performs the function of screening this extraordinary evidence. In doing so, it attempts to answer the several concerns discussed above. No particular rationale dominates, but all can be merged into the need to ensure that unreliable evidence is not received by the court.
CONCLUSION
Both US and Nigerian evidence law and jurisprudence are progenies of the English common law. That shared pedigree has ensured that the basic tenets of the trial process in both jurisdictions do not vary markedly. It is thus not surprising that the motivations for the rule against hearsay evidence in the one jurisdiction coincide with the reasons for its existence in the other. Essentially, the concern is with both the accuracy and the integrity of the evidence encapsulated in hearsay. Both systems would prefer a first hand account of the facts in issue or relevant facts, because such accounts are less amenable to distortion and are less confusing to fact finders, be they judges or jurors. Even where a narration is confusing, the fact finders are better able to navigate the issues if a witness with first hand knowledge is available so that their story can be tested by cross examination and by physical observation of demeanour. The common law's old fascination with oaths and the need to avoid unfair surprise are also embraced by both jurisdictions. No wonder the absence of oath and the tendency of hearsay evidence to surprise, combine with the constitutional concern to warrant the stricture against hearsay evidence. The conclusion is thus inescapable that the rationales for the rule against hearsay evidence proceed from similar bases in both jurisdictions.
