Cross-Examination

The value that the American legal system places on cross-examination as a fact-finding tool is reflected in the hearsay rule. This rule (legislatively imposed in many jurisdictions, including federal, but a matter of common law in others) bars the introduction of statements made out of court if those statements are being offered to prove the truth of what the out-of-court declarant intended to say. (If the statements are offered to prove something other than their "truth"—perhaps the mere fact that they were said is relevant—the hearsay rule poses no bar to their consideration.) The rationale for the rule is that a fact-finder ought not to rely on the truth of a statement that someone made when no one had a chance to cross-examine him. Rather than trust a jury to discount the reliability of these untested statements, the hearsay rule categorically excludes them from trials, even in those trials in which the person who made the out-of-court statement actually testifies as a witness. The fear is not simply that the jury would not be able to tell the difference between a first-hand account and a second- or third-hand account, but that the jury would be more ready to credit evidence from an out-of-court declarant (who would not be subject to cross-examination) that is presented through documentary proof or a naive trial witness than to credit evidence from an in-court witness subject to cross-examination. In the absence of the hearsay rule, parties would thus have a disincentive to present their cases through witnesses with personal knowledge of the matters at issue.

There are, of course, many exceptions to the hearsay rule. Some, like those covering business records or statements made in response to a startling event, arose because legislators or courts decided that out-of-court statements under these special circumstances were sufficiently reliable to be considered at trial for their truth even in the absence of cross-examination. Other exceptions, like those permitting one party to introduce any out-of-court statements by the opposing party, developed out of considerations of fairness and accountability. Notwithstanding the proliferation of such exceptions in recent years, however, the hearsay rule cuts deeply, frequently preventing the introduction of highly relevant out of court statements, and encouraging the use of in-court witnesses who can be cross-examined at trial.