In the article Hearsay: the road to reform (Murphy), the author P. Murphy outlines the development of the hearsay rule and challenges the proposed reforms.
The non-conservative nature of this article is overwhelming. The author does not oppose new reforms to the general rule against hearsay, but rather the arm of government which should be mandated with the making of such reforms and the caution to be exercised when coming up with such reforms. He reviews the history of the hearsay rule and assesses arguments for reform.
The article suggests that the hearsay rule has not always been static. It has changed over time. It is a common law rule; it was developed by the judges in the English courts.
Murphy cites exemption to the law against rumor. His article brings out the doctrine of parliamentary supremacy. This is expressed by the House of Lords in Myers v. DPP. The presiding judges unanimously agreed that the period of judge-made exceptions to the regulation against unconfirmed report had come to an end. It was parliament’s role to come up with such exceptions.
In the research article, Murphy brings out the ordinary decree exceptions to the unfounded information rule at the time when Myers v. DPP was heard and decided. The exceptions were: confessions, statements by persons who have since died, statements contained in public documents and res gestae. The presiding judges in the Myers case, therefore, had to confine themselves to the four recognized rules against the hearsay rules. This resulted to an absurd application of the general rule against hearsay.
The general question throughout the article is: Who should be mandated with the role of reforming the general ruled against hearsay? Is it the judiciary or parliament? Although Murphy’s article does not give a concise conclusion or answer to the general question, a good section of it seems to suggest that the reform mandate falls squarely on the shoulders of parliament. I wholly agree with this on the basis that parliament is the legislative body. Parliamentary proposals of reform to the hearsay rule should take precedence over judicial proposals.
Confession, as an exemption to the general rule against hearsay rule, mainly depends on the manner in which such a confession was obtained. A confession obtained through fraud, or coercion is inadmissible. Therefore, it will not fall within generally recognized exceptions.
Statements by persons who have since died comprise statements against the proprietary or pecuniary interests of the maker of such statements, dying declarations and statements made in the regular track of task Such statements are made in the face of imminent death, and this justifies their admissibility.
Statements contained in public documents are admissible because of their perceived reliability. The justification for their admissibility is that they are statements of entries made by impartial public servants in the itinerary of their responsibility and with no intention to misstate facts.
Statements admissible as element of the res gestae involves statements made contemporaneously with the occurrence of an event to which the admissible statement relates. The justification for admissibility of these statements is based on the light which such statements throw on the issue or event in question which would seem meaningless without the accompanying statements.
Although the author restricts the hearsay exceptions to four, these exceptions can be broken down to more than four exceptions and under two distinct heads. The two distinct heads are; statements made by persons who are dead, who cannot be found, who are incapable of giving evidence, or persons whose presence in court cannot be procured without unreasonable delay or expenses, and statements made under unique circumstances. Dying declarations, statements made in the commonplace of duty, and statements against the interest of the maker fall under the first head while confessions, testimonials surrounding the res gestae and statements or entries in public records fall under the second head…
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