Study On The Rule Against Hearsay

The hearsay rule is one of the fundamental rules of evidence in common law legal system countries. Within hundreds of years, during the process of colonizing of the common law countries, a complex set of legal rules and mature theory on hearsay evidence has formed. The rules has unique function on examining the fact of the case and protecting human rights. Chinese scholars also have serious controversy on whether to bring this rules into the reformational of criminal evidence. There are four chapters in this dissertation, including the basic theory, the origin and development of the hearsay rule, as well as whether to bring this system into the legislation and how to do it.The First chapterThis chapter introduces the basic theory on hearsay evidence and the hearsay rule. First, the writer introduce the connotation and the definition of hearsay evidence. Hearsay is defined as an out-of-court statement offered to prove the fact or truth of the matter stated. It is oral or written form, or a non-speech action unconscious of intention expression. What is the hearsay evidence on earth ? From the definition, writer try to describe the extension of it. Second, hearsay evidence has theoretical formual itself. After researching connotation and definition of hearsay evidence, writer states the model exception hearsay rule in USA, UK, Japan and so on. The rules are similar in these countries. However, every country has his own character. So, we can make use of the results for reference on building the system in China. Common Law Legal System is the cradlelad of the the hearsay rule. It has complicated relation with the direct and wordage principle in Roman law legal system. They are similar on the function, however, they are completely two different systems. Finally, writer introduce the differences between these two kinds of rules on the aspect of the operation background, function, as well as the procedure.The second chapterThis chapter is to probe into the origin of the hearsay rule, to look into the bankground when the rules was set up, to predict the future of it. To find out the history is to understand the rules better. The hearsay rule has close relationship with the Jury trial. During the early days, the Jury trial was governed by the British Crown. The Jury trial must swear to impeach prosecution felony to the itinerant judge of the English royal court, that's the origin of Jury trial. Until 13 century, English royalty bring the Jury trial into the process of the hearsay rule. That's small criminal Jury trial. The signification to the formation of the rule of hearsay evidence is the changes of the statu, from the Jury trial who know the matter developed to the unknown Jury trial. The differentation between jury members and the witness have established the standard of conviction. The early standard of the witness'knowing the matter made judge to suspect the value of hearsay evidence. Today, the hearsay rule have started to change a lot with the development of the gradually abolished of the system of the Jury trial in civil case as well as the decline of this system in the criminal trial. The application of the rules is gradually loosed, with the increasing exceptional case, these two aspects have more relation with environment which includes the enhancement of society dynamic and technical indemnificatory. So, the trend is broaden. Despite the application of rules is gradually broaden, that's not to say it is already declined, it's not lose its value. On the contrary, it's the reason to make it improve itself to fit for the development of system of lawsuit.The third chapterThis chapter discusses the theoretical basis of the hearsay rule, includes theoretical foundation of the rules of hearsay evidence and the reason why we set up an exception to it. The theoretical basis of the hearsay rule, namely why we ought to exclude the hearsay rule, points out that there are many flaws in hearsay evidence, which makes itself not be able to be accepted in the trial. The reasons why hearsay evidence cannot be accepted are as follows: first, the three elements which are used to protect evident in common law countries: swear, present in court himself and cross inquiry; second, to protect the right to confrontation in court; third, the requirement to protect the best evidence; forth, to protect the members of jury make right judgment of evident. The second section explains the reason why we ought to establish exceptions to the hearsay rule. Excluding hearsay evidence rigidly is obviously bad for inspecting the facts of cases, for the reason that in actual hearsay evidence is believable to some extent. In addition, excluding hearsay evidence completely requires all the evident attend the prosecution to provide evidences, which is impossible in practice. The hearsay rule have to be limited under this circumstance. However, the establishment of the exception of the hearsay rule has strict criterion. Although the exception of the rules of hearsay evidence is complex, it has a long history. We have to establish its exceptions carefully.The fourth chapterIn this chapter, we return to the criminal system of rules in our country. First, we probe into the necessity of setting up the system of this rule. We stared from the point of the actuality in the criminal procedure in China. To change the situation of difficulty for the witness appearing in court, to provide the chance for the direction of development in criminal trial, to safeguarde human rights in the justice. Second, the streamline production-like in criminal procedure, pursing the truth of the case excessively, the lack of the hearsay rule and the low efficiency in the justice and so on made a lot of handicaps in setting up the rules. Although there are so many difficulties, to improve the situation is not impossible. The next step tell how to solve these problems. Improving the system of witness, setting up the procedure before the trial to secure the justice efficiency reforming the criminal procedure better operation condition for the rules. Finally, what's shall we consider when we set up this system. The experience abroad, although some are outdated, is rich on this aspect during hundreds of years development. We can learn a lot from them. During this transplanting process, we should consider the condition of our society of our country and the speciality in justice. Then we may form the rules ourselves. Especially, we should pay much attention to the exceptions of the relatives problem.