What are the conceptual characteristics of hearsay evidence and what are the rules of hearsay evidence?

Hearsay Rule, also known as hearsay rule, hearsay rule, hearsay evidence exclusion rule. It refers to facts stated by witnesses that are not personally experienced, as well as claims made in documents submitted to the court when the witness did not appear in court to testify. In principle, they cannot be used as the basis for determining criminal facts. In short, hearsay evidence is not admissible. The hearsay evidence rule is a rule that excludes a means of proof, not a rule that excludes facts.

The hearsay evidence rule is closely related to the direct speech principle. The hearsay rule is a concept of the common law system, while the direct speech principle is a concept of the civil law system. The direct speech principle is divided into the direct principle and the speech principle. The principle of directness means that during the trial of a case, prosecutors, defendants and their defenders, victims, witnesses, appraisers and other litigation participants should be present; the judge must personally directly engage in court investigation and admission of evidence, and directly contact and review evidence. The principle of speech means that court hearings must be conducted in the form of oral statements, with the defendant and victim making oral statements, witnesses and appraisers giving oral testimony, and prosecutors and defenders making oral inquiries and arguments. Although the spirit of the two principles is basically the same, the principle of direct speech is not limited to the understanding of evidence law, but can be understood from a broader perspective such as litigation law, procedural law, and the entire trial. Therefore, the two cannot be regarded as the same. Traditionally in the common law tradition, the hearsay rule has a very wide scope of application. Even physical evidence must be presented to the court in the form of words by a person who has personally experienced it. The hearsay rule also affects the evidence of physical evidence. qualifications. However, in civil law countries, the hearsay rule only applies to witnesses who personally perceive the facts of the case. As for physical evidence, it must be presented in court or "inspected" by a judge in person.

(1) Basis for hearsay evidence.

1. The unreliability of hearsay evidence. Hearsay evidence is a statement made by a person who has not personally experienced the facts of the case, and therefore does not have an accurate understanding of the facts of the case. The statements used as evidence in court are merely repetitions of other people's statements. Objectively, the repetition of statements always involves the danger of non-initiality. Subjectively, due to differences in people's cognitive abilities, understanding abilities, expression abilities, and knowledge levels, when hearing the same statement, they may make different representations, and may add subjective judgments that deviate from the facts of the case. The more intermediate links there are in the report, the less reliable the evidence is and the lower the probative value. In the British and American countries, there is a witness oath system. On the one hand, the reliability of an unsworn statement will of course be reduced. On the other hand, the responsibility of the person making the statement will also be reduced. Therefore, "making rash and unthinking statements outside the court or behind other people's backs" It is easier to make a statement than in court or in front of others. "It is therefore unscientific to use hearsay evidence as the basis for deciding a case.

2. Hearsay evidence deprives the other party of the right to cross-examine and damages procedural fairness. Whether it is a country with a civil law system or a country with a common law system, the prosecution and the defense are basically given the right to cross-examine, and the questioning of witnesses is mainly conducted through cross-examination. Through questioning, the party presenting the evidence can convince the judge that the evidence is true, and the party counter-questioning can find doubts about the evidence and overturn the credibility of the evidence. As for hearsay evidence, since the witness does not know the facts of the case and cannot provide valuable answers to the inquiries of both parties, the authenticity of what he states cannot be determined. At the same time, hearsay evidence cannot test the perceptual ability, memory ability, honesty and language expression ability of the out-of-court statement or actor because the original declarant himself does not appear in court. Among them, the most important one is the violation of the defendant's right to repeated questioning. Especially in countries with common law systems, cross-examination is an important right enjoyed by both the prosecution and the defense, and evidence without cross-examination cannot be used as the basis for finalizing a case. The use of hearsay evidence would seriously undermine the integrity of justice.

3. Hearsay evidence rules are an effective measure to ensure the system of witnesses appearing in court. The biggest hidden danger of allowing the use of hearsay evidence is that the witness appearance system will be threatened. If someone with indirect knowledge of the case can testify on behalf of someone with direct knowledge of the case, then some witnesses can use this to evade their responsibility to testify. For court trials, it increases the difficulty for judges to determine facts. Witnesses are often reluctant to testify for fear of retaliation or perjury. The declarant of hearsay evidence faces much less of this risk. Therefore, the hearsay evidence exclusion rule can force people who really know the facts of the case to appear in court to testify, giving both parties the opportunity to fully cross-examine.

4. Hearsay evidence rules help judges make correct judgments. One of the original purposes of the hearsay rule was to effectively protect juries who lack legal knowledge from paying too much attention to flawed hearsay evidence. Therefore, in principle, it is prohibited to use hearsay evidence as normal evidence in litigation. Only in exceptional circumstances, that is, when hearsay evidence does not mislead the jury, may it be used as evidence under certain conditions. Use it. Moreover, the hearsay evidence rule can prevent parties from proposing a large amount of indirect evidence to interfere with the court's hearing of the case. Based on the principle of direct speech, evidence investigation should be conducted in court to ensure that the magistrate can observe the words and distinguish their authenticity. However, regarding the hearsay rule, since the judge cannot directly hear the declarant's statement, he cannot comprehensively judge the authenticity of the statement based on the declarant's attitude, expression, etc.