Report No. 69
V. Rule Stated In Terms of Relevancy
26.37. So much as regards the weakness of hearsay. Stephen preferred to state the rule in terms of "relevancy",1 but Stephen's work states most rules in terms of relevancy, and has been criticised frequently on that basis.
1. Stephen's Digest of the Law of Evidence, Article 18.
26.38. Origin in the Adversary system.-
The origin of the hearsay rule resides in the adversary theory of litigation, which depends on the right of the adversary to cross-examine the witnesses produced by his opponent and thereby test their credibility. Professor Morgan1 has pointed out that a person's description of a past event might be incorrect because of five possible dangers: the danger that the person did not have personal knowledge of the event; the danger that the person did not accurately perceive the event; the danger that the person when he describes the event, does not recall an accurate impression of what he perceived; the danger that the language the person uses to convey his recalled impression of the event is ambiguous or misleading; and, the danger that the person describing he event might not be giving an honest account of his knowledge.
All of these dangers may be explored by effective cross-examination and the adversary is denied the opportunity of exposing imperfections of perception, memory, communication and honesty and challenging the person's testimonial qualification of first-hand knowledge, if the description is not given at the trial by the person with alleged first-hand knowledge of the event but through the testimony of another person reporting that person's description.
1. Morgan Hearsay Dangers and the Application of the Hearsay Concept, (1948) 62 Harvard Law Review 177.
26.39. The theory of the adversary system is that in the contest between the parties, each is interested to demonstrate the strength of his own contention, and to expose the weakness of his opponent and that the truth will emerge as a result of such contest. "The purpose of furnishing the safeguard of oath and cross examination, therefore, is not to aid the parties to suppress the truth, but to enable them to avoid the risk that the trier will be misled into mistaking the false for the truth.1
1. E. Morgan Hearsay Dangers, (1948), 62 Harvard Law Review 177, 185.