Sample Essay on Trial Preparation IP3

What is the hearsay rule?

Hearsay is sometimes called rumor or second hand evidence. In legal terms, hearsay is an out of court statement introduced as evidence in court (Baker 1950). A witness offering hearsay has no direct knowledge of the statement but is simply passing on what was said by another party. Hearsay is inadmissible in court under the hearsay rule, unless there is an exception,. The hearsay rule prohibits the admission of hearsay in court as evidence. According to the hearsay rule, secondhand testimony is not valid in court as it is prone to bias. The hearsay rule is important because it ensures that only reliable and truthful information is heard in court.  One of the main reasons why hearsay cannot be admitted in court is because the person who declared it is not in court and therefore, the judge or the jury cannot see the declarant and weigh their demeanor. However, even though not admissible, hearsay can be very damaging when the jury hears it. The jury might not be able to erase what they heard and this might be damaging to ones case.


Major cases involved in the establishment of the hearsay rule?

In England, hearsay was regarded as unreliable during the 13th century. However, between the 13th and 17th century English criminal courts continued to convict defendants based on absentee witnesses and anonymous accusers (Baker 1950). More than any other case, the trial of Sir Walter Raleigh in 1603 illustrates the abuses that occurred in English criminal trials before the hearsay rules. As a soldier and explorer, Sir Walter Raleigh was a colorful member of the English court of Queen Elizabeth. As a result, Raleigh received the patronage and protection of Queen Elizabeth during her lifetime, but he had powerful enemies within the English Courts. Upon the death of Queen Elizabeth in 1603, the new King James feared Raleigh and had him seized and thrown into the Tower of London in July 1603. In November, Raleigh was tried for treason against the King. He was convicted based on statements made before the Privy Council by his alleged accomplice, Lord Cobham, who did not appear in court as witness (Baker 1950). These hearsay statements implicated Raleigh in a conspiracy to commit treason and, along with a letter Cobham wrote to officials were read to the jury.  Following the trial of Walter Raleigh, the English Courts began to develop hearsay rules and by 1690, it is reported that English courts were using hearsay rules to prevent the kind of abuses that occurred during that period. After the 1670 trial of William Penn, the historic development of an impartial jury continued along with the development of the hearsay rule (Baker 1950).

In America, the hearsay rule grew in the 19th century (Baker 1950). English settlers brought the concepts of impartial, independent juries and hearsay rules to the American colonies as part of the English common-law system. After the American Revolutionary War, both the right to an impartial jury and the use of hearsay rules were made part of the American legal system. The former colonists were determined that the new federal government would not resort  to the same civil-law procedures that the English crown had attempted to use in America. The result was the adaptation of the sixth amendment Confrontation Clause, which was made part of the American Bill of rights in 1791. The US Supreme Court has observed that the rule against hearsay is closely related to the constitutional right of confrontation, as both stem from the same roots and that hearsay and the Confrontation Clause are generally designed to protect similar values.

What is the rationale behind the rule? Explain.

The rule was put in place to ensure that on true evidence was administered in court. Hearsay can be biased and a witness can lie. For example, a letter written by witness was used to convict Sir Walter Raleigh in the absence of the witness. The letter could have been a lie but Raleigh was convicted anyway. Hearsay in the past led to the abuse of court. To prevent the wrongful conviction of individuals based on hearsay, the hearsay rule exists.

Issues existing regarding the hearsay rule

The many exceptions of the hearsay rule have led many legal scholars to lobby for it’s abolishment. Scholars claim that hearsay or second hand evidence is reliable enough to warrant admission and that hearsay rule exceptions are the ones lacking in consistency. By preventing hearsay admission in court, the court is ensuring that only true evidence is brought forward, however, in the case where the declarant is dead, the hearsay rule can be damning (fenner 2003). The extent to which the hearsay rule can be exempted is unclear and it leaves room for misinterpretation. In other cases, the hearsay rule may prevent the admission of important evidence that may be used to convict a criminal. For example, in a child abuse case, the Sixth Amendment may not apply since the child might be intimidated by the defendant. Having a child testify in court may also lead to further trauma. The hearsay rule though important needs to be revised.

What are the 4 main dangers of hearsay?

The four main dangers of hearsay are: insincerity, ambiguity, inaccurate perception and incorrect memory (Martin et al. 2003). As concerns ambiguity, a declarant’s statement can be open to two or more interpretation but in their absence they cannot be probed.  In court, oath, cross examination and demeanor are used to assess the witness’s sincerity. In the absence of the witness, sincerity cannot be assessed.  Sometimes the witness might not have a clear memory of the declarant’s statement or they might have the wrong perception of the statement.

What are the hearsay exceptions? Explain.

Present sense impression is on of the exceptions to the hearsay rule. A statement by the declarant about their sense of the condition of something is admissible in court (Fishman 2012). For example, if someone says it’s hot, their statement can be admitted as evidence in court to prove that it was actually hot. Excited utterances are exempted from the hearsay rule. Hearsay statements are admitted in court if made under immediacy-res gestae. It is believed that in the immediacy of things, one is too overwhelmed to lie as they are not in the right state of mind. An existing mental condition is excused under the hearsay rule. Recorded recollections re also allowed to break the hearsay rule if the accurately reflect knowledge of the witness, were made immediately while the matter was still fresh in the memory of the witness and when the witness  knew the matter in the past but cannot recall all of it to testify accurately. Other exceptions include: judgment record of prior conviction, Reputation regarding character, Reputation concerning general history or boundaries, reputation regarding family or personal history, market reports, statements in old documents, wills, family records, marriage and baptism certificates, records of religious organizations regarding family or personal history and public records (Fishman 2012).

Are there any hearsay exceptions that you disagree with? Why or why not? Explain.


I believe that the hearsay rule exceptions have ensured that no important evidence is left behind while upholding trustworthiness of witnesses.


Baker, R. W. (1950). The Hearsay rule. London: I. Pitman & Sons.

Fenner, G. M. (2003). The hearsay rule. Durham, NC: Carolina Academic Press.

Fishman, C. S. (2012). A student’s guide to hearsay.

Martin, M. M., Capra, D. J., & Rossi, F. F. (2003). New York evidence handbook: Rules, theory, and practice. New York: Aspen Law & Business.