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Report No. 69

III. Rationale of the Rule-schematic Presentation

26.21. Rationale of objection to hearsay.-

We may now consider in detail the rationale of the present rule. The main objection against hearsay is that is mediate proof1 and presents four peculiar risks-

(i) want of sincerity in the original declarant;

(ii) inaccurate use of language by the original declarant;

(iii) want of memory in the original declarant; and

(iv) want of perception in the original declarant.

1. See infra.

26.22. Structural analysis of hearsay rule.-

It has been said1 that there exists a rather simple way of schematizing all of this, in terms of an elementary geometric construct that serves to show its several related elements. The construct might be called the "Testimonial Triangle".

1. Lawrance H. Tribes Triangulating Hearsay, (March 1974), 87 Harvard Law Review 95i 958, 959.

26.23. We may, for our purposes, put the triangle thus:

(The original declarant is X. His utterance is A).

B (belief of person responsible for A)

(1) ambiguity
(2) insincerity
(3) erroneous memory
(4) faulty perception

A

C

(Utterance of originaldeclarant) (Conclusion to which B points in the mind of X)

(Declarant X)

26.24. If we use the diagram to trace the inferential path which the trier must follow, we begin at the lower left vertex of the triangle, which represents the declarant's (X's) act or assertion. The path first takes us to upper vertex (B) representing X's belief in what his or her act or assertion suggests, and then take us to the lower right vertex (C), representing the conclusion. When A is used to prove C, along the path through B, a traditional hearsay problem exists, if X is not before the Court and the use of the act or assertion at A as evidence is disallowed upon proper objection-in the absence of some special reason to permit it.

26.25. It is, of course, a simple matter to locate to four testimonial infirmities on the triangle to show where and how they might impede the process of inference To go from A to B, the declarant's belief, one must remove the obstacles of (1) ambiguity and (2) insincerity. To go from B to C one must further remove the obstacles of (3) erroneous memory, and (4) faulty perception.



Indian Evidence Act, 1872 Back




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