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Citation: 65 U.S. L. Rev. 605 1931

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Hearsay Evidence Received

Without Objection
Thieves are not judged but they are
by to hear,
Although apparent guilt be seen in
them. Ricbard Second, IV, i.

PERHAPS the greatest contribution of Englishjurisprudence

towards the true administration
of justice is the development of
the right to confrontation, or
cross-examination. In the words
of Nisbet, J., in McCleskey v.
Leadbetter (I Ga. S5I, SS5):-

place; and (2) a deposing, or say judicially narrating witness, who bears testimony not to the truth of that matter of
fact, but to its having actually been
asserted on the extrajudicial occasion in
question by the extrajudicially stating
or narrating witness.

As in every other walk of life,

the human equation enters into
the administration of the law,
so that because of the ignorance,
incompetence or lack of attention on the part of counsel, hearThe right to be confronted with the say evidence is often admitted
witness, and to sift the truth out of the without any objection being
mingled mass of ignorance, prejudice,
raised. The question which seems
passion and interest, in which it is very to have
perplexed the appellate
often hid, is among the very strongest
courts
is
what weight should be
bulwarks of justice.
given such evidence, in view of
- Coincident with the develop- the rule that the appellant can
ment of the right to cross-exam- not claim reversible error in its
ine witnesses under oath, the admission, having raised no obrule of evidence excluding hear- jection on the trial.
say testimony was adopted, for to
Faced with this problem and
permit the admission of hearsay the conflicting decisions of other
testimony would defeat the right jurisdictions cited by opposing
to cross-examine. Mr. Jeremy counsel, the court, in Egli v.
Bentham in Rationale of 7udicial Hutton ([Or.] 294 Pac. 347), held
Evidence, b VI, c IV, describes it was bound by the prior decihearsay evidence as follows:
sions in Oregon to attribute proIt is of the essence of hearsay evidence bative force to such evidence.
to present to the notice of the judge two The danger of relying upon heardistinct persons in the character of wit- say is forcefully demonstrated
nesses; (i) a supposed percipient and by this decision, for an analysis
extrajudicial narrating witness stating of the
decisions relied upon shows
at some antecedent point of time, in the
that,
while
the opinions cohitain
hearing of any person not on that occasion invested with the authority of a dicta supporting Egli v. Hutton,
judge, some matter of fact as having had the facts of each case are such

UNITED STATES LAW REVIEW

that they do not authoritatively

establish any such rule.
MergenthalerL. Co. v. Spokesman Pub. Co. (127 Or. 196), and
Jones L. & L. Co. v. Seawell (90
Or. 236), merely stand for the
general rule that the admissibility of evidence can not be questioned for the first time on the
appeal. In Bergboltz v. City of
Oregon City (i16 Or. i8), the evidence related to the proceedings
of the City Council in awarding
a contract, for the breach of
which plaintiff sued. Since the
defendant admitted the execution of the contract and the only
issue was as to the breach, the
evidence so admitted was immaterial, and although objectionable as hearsay, its admission in
no way prejudiced the defendant.
Both in Derrick v. PortlandEye,
etc., Hospital (io5 Or. 9o) and in
Mitcbell v. Southern Pacific (io 5
Or. 310), the court was not
called upon to determine whether
the failure to object to hearsay
evidence gave it probative force,
since there was sufficient direct
evidence as to the same issue, and
in the former case the direct testimony was disinterested and
uncontradicted. In Wasiljeff v.
Hawley Paper Co. (68 Or. 487),
the appellate court pointed out
that the evidence in question was
not in fact hearsay, but was objectionable solely on the ground
that the witness had not been
properly qualified as an expert.
The court properly refused to reverse the judgment, for had this
objection been made at the trial,
in all probability the witness
could have been qualified.

Carelessly worded dicta upon

so vital and fundamental a problem are not confined to Oregon.
In Western Union Trel. Co. v.
Hirscb ([Tex. Civ. App.] 84 S. W.
394), the court said:
Hearsay testimony, although inadmissible, if admitted without objection,
is not wholly without probative force.

Yet the court conceded that

the testimony in question was not
hearsay, but original testimony
of a. fact. The above quotation is
cited with approval in Speed v.
Sadberry ([Tex.] 190 S. W. 78),
the court further stating:
... but the judgment rendered may be
sustained, not only upon this ground,
but also because of failure of proof that
forfeiture had in fact been legally
effected.

This same theory is expounded

in cases where there was sufficient original evidence to support
the verdict (Western Land Sec.
Co. v. Daniels-Jones Co., 113
Minn. 317; Lippert v. Page, 32
Ohio Cir. Ct. Rep. 44; Gray v.
Fussell, 48 Tex Civ. App. 261);
where plaintiff was aided by a
legal presumption which had
not been rebutted (Thompson v.
Ackerman, 12 Ohio Cir. Dec.
456); and where the answer
failed to put in issue the fact
which the hearsay testimony
tended to establish (Daniel v.
Harvin, io Tex. Civ. App. 439).
On other occasions the courts
have confused secondary evidence offered without explanation as to why the best evidence
was not produced, with hearsay.
The courts properly gave such
evidence weight, since it was
not objected to, but though they

HEARSAY EVIDENCE

referred to it as hearsay, it was

in fact original evidence. (Damon
v. Carrol, 163 Mass. 404;
Whightman v. Campbell, i6i
N. Y. App. Div. 49).
In Mercantile Trust Co. v.
Sunset Road Oil Co. (76 Cal.
461) an action to foreclose a
mortgage, the lessee of the mortgaged premises claimed that the
plaintiff mortgagor was estopped
from denying that the mortgage
had been subordinated to the
lease. On appeal from a judgment in favor of the plaintiff,
appellant contended that the
evidence as to the mortgagor's
default was hearsay. The court,
though not called upon to decide this question, because the
mortgagor had not appealed and
the lessee could not therefore
claim there had been no default,
held the evidence sufficient because no objection had been
raised to it on the trial.
By what process of reasoning
have the courts in these cases
reached this conclusion? Judge
Winch, in Lippert v. Page (supra)
said:
Hearsay evidence has probative force.
It is not inherently without weight, for

we act upon it daily in our business

affairs.

The ablest exposition of the

reasons supporting Egli v. Hutton
(supra) is found in the opinion of
Judge Kephart in Poluski v.
Glen Alden CoalCo. (286 Pa. 473)Suit was brought by the widow
of a coal miner under the Workmen's Compensation Act. The
only evidence that her husband
had been injured in the course
of his employment was the fact

that he was well when he left for

work and was seen limping at
i i o'clock that morning. A fellow
miner testified that in answer to
an inquiry as to what had occurred, the deceased had answered that he had "finished his
finger," indicating his toe. There
was also testimony of two doctors that the deceased told them
that he had been hurt in the
mine. To this testimony there
was no objection.
On appeal, Judge Kephart held
that by failing to object, counsel
had either conceded that these
statements of the deceased were
part of the res gestae, or that the
evidence was of sufficient probative value for the purpose intended. "A rule of evidence not
invoked is waived." Hearsay evidence is only objectionable, he
said, because it has not been subjected to the test of cross-examination. Therefore, he concluded:
. . . an opponent may waive such requirements as well as the right to be
confronted by the witness and the absence of an oath by failure to object.
Hearsay evidence may accurately portray a given set of circumstances. The
reasons which exclude such portrayal do
not detract from its truth or accurateness. These reasons are the legal barriers which have been erected by the
law, and which, in the interest of justice,
the parties may move aside. Under this
reasoning the evidence is thefi competent to the full extent of such probative
value as it may have under all the
circumstances.

The learned Judge, however,

begs the question. He assumes
that hearsay testimony is accurate and trustworthy and is
excluded merely because of a
technical rule of procedure. True,

UNITED STATES LAW REVIEW

a rule of law would not of itself that the fact sought to be proved is
detract from such qualities as established."
The plaintiff, in State Bank v.
hearsay evidence might have,
but neither does the failure to Woody (io Ark. 638), attempted
urge this rule add credibility to to prevent the bar of the Statute
evidence, objectionable because of Limitations by proving part
"it is peculiarly liable to be ob- payment, the evidence being in
tained by fraudulent contriv- part hearsay. Though no objecances, and above all that it is ex- tion had been raised, the court
ceedingly infirm, unsatisfactory, held the evidence insufficient "on
and intrinsically weak in its very account of its intrinsic weakness
nature and character." (Story, J., and incompetency to satisfy the
mind as to the existence of the
Ellicott v. Pearl,io Pet. 436).
The inherent debility of hear- specific fact of part payment."
say was recognized as far back as The fact that it was in the record
1679, in Lord Russell's 'rial (7 without objection did not confer
How. St. Tr. 763, 79o), L. C. J. upon it any new attribute "in
Pemberton stating, "The giving point of weight."
That hearsay evidence is inof evidence by hearsay will not
herently incompetent and gains
be evidence."
The decisions which have held no vitality by its admission withhearsay evidence not objected to, out objection was held in Clifton
to be of no probative value, have Mercantile Co. v. Conley ([Tex.]
approached the question from 264 S. W. 192); Goehring v.
that viewpoint. Conceding that Stryker (i74 Fed. 897); Southern
the appellant could not claim re- Surety Co. v. Nalle & Co. (242
versible error in the admission of S. W. i97); Jarrielv. Savannah
such testimony, they have held, Guano Co. (34 Ga. App. 72);
nevertheless, that since the only Conger v. Costello (io S. W.
evidence in support of a material [2d] 746); Roesel v. Green (28
issue was hearsay, there was in Ga. App. 694); Hutchings v.
fact no evidence to support the Castle (48 Cal. i52); Pettyjohn
verdict or finding. Testimony in & Sons v. Basham (126 Va. 72);
the record is not necessarily Hirsch v. Lehigh Valley R. Co.
(i74 N. Y. Supp. 68); Hamilton
legal evidence.
In Matter of Case (214 N. Y. v. N. r. C. R. R. Co. (51N.Y.
ioo); and Carroll v. Knicker199), Judge Cardozo said at
bocker Ice Co. (218 N. Y. 435).
page 203:
The point that hearsay testiItisstill
the rule, however, even in
is not evidence of the fact
mony
this court, that "insufficient evidence is,
in the eye of the law, no evidence" (cit- sought to be proved, but only
ing cases). In the words of Maule, J., in evidence that the extrajudicial
7ewell v. Parr (i3C.B. 916) "When we
witness made the statement testisay there is no evidence to go to the
jury, we do not mean that there is fied to concerning the fact, does
literally none, but that there is none not appear to be sufficiently emthat ought reasonably to satisfy a jury phasized by the courts in accord

HEARSAY EVIDENCE

with Egli v. Hutton. Lehman v.

Frank, (i 9 N. Y. App. Div. 442),
was an action to recover damages
for fraud, the representation being that defendant stated that
one Levor would guarantee the
payment of bills for meat purchased by defendant from plaintiff's assignor. The only evidence
that the representation was false,
was the testimony of a witness
that Levor told him that he was
not behind the defendant and
never authorized him to state
that he would guarantee the payment of his bills. At page 444,
the court said:
True this hearsay evidence was given
without objection on defendant's part,
but nevertheless after it is received and
before the court, it does not furnish any
proof that defendant's statements were
false. Levor's unsworn statements, out
of court, are in no sense proof of the
facts which he so states.

There is a movement, today,

to relax the rigidity of the hearsay rule. The agitation of reformers who would cure our
social ills by enacting more rules
and our judicial ones by abolishing the established rules of procedure is reflected in the decisions
holding that hearsay evidence
has probative force. Undoubtedly
there are rules which, in the
hands of dishonest practitioners,
have lent themselves to delaying
and defeating the ends of justice.
But we must not blind ourselves
to actualities and sacrifice our
entire judicial system on the
altar of reform.
To abolish the hearsay rule
would be a step backward, not
forward. It is founded upon the
hard rock of human experience.

The accuracy of testimony is

directly proportionate to the
proximity of the witness to the
actual occurrence. That wholly
disinterested eyewitnesses will
tell conflicting stories, is a common experience. With each retelling, essential facts are omitted
and fanciful ones added. One
who casually overhears the statement of the eyewitness, can not
in his absence, aid the court in its
search for the truth. Kent, C. J.,
in Coleman v. Southwick (9 John

So), said:
A person who relates a hearsay is not
obliged to enter into any particulars, to
answer any questions, to solve any difficulties, to reconcile any contradictions,
to explain any obscurities, to remove any
ambiguities; he entrenches himself in
the simple assertion that he was told so,
and leaves the burden entirely on his
dead or absent author.

The aim of the hearsay rule is

twofold, first, through the administration of an oath to counteract any inclination to give
false testimony because of the
fear of some superhuman retribution; and second, to subject
testimony to cross-examination
calculated to expose its inaccuracies. The efficacy of the administration of an oath as a deterrent
to fabrication presupposes a belief in the existence of a Supreme
Being who will avenge falsehood.
However, the courts of this
country no longer hold a sense of
religious obligation a prerequisite to the competency of a witness. Therefore, the argument is
made that, since agnosticism no
longer disqualifies a witness, the
giving of an oath is futile, for it
does not insure truth from a wit-

UNITED STATES LAW REVIEW

ness who does not fear Divine

vengeance. Nevertheless, it undoubtedly lays some hold on the
conscience of the witness by impressing him with the solemnity
of the occasion and acts as an
antidote for human frailty, if for
no other reason, because it subjects the witness upon the discovery of the falsity of his
testimony to a very human
punishment for perjury.
Nor is the effect of cross-examination purely theoretical. It
affords an agency for placing the
witness in his proper setting and
puts the weight of his testimony
and his credibility to a test without which the court or jury can
not fairly appraise it. While the
rules of practice and evidence
should be enforced in so far as
they secure the orderly administration of justice, the
exaggeration of the value of
such technicalities may lead to a
miscarriage of justice. The court
must balance the reason for the

"

rule excluding hearsay in the first

instance against the reason for
the rule as to the preservation of
the right to claim error in the admission of the evidence by prope
objection and exception.
As stated by Prof. Wigmore
in his monumental work on
Evidence, Vol. I, Sec. 21:
The rules of Evidence are not arbitrary. They are not in themselves mere
instruments of strategem for the bar and
of logical exercitation for the judiciary.
As a whole and as a system, they are
founded on rational purposes and practical experience. They are always
reasoned, and usually reasonable.

To deprive a person of his

liberty or property upon mere
hearsay would be to deprive him
of a fundamental right to have
the controversy determined by
a properly constituted judicial
tribunal upon "legal evidence."
The rules of procedure, however,
have no such sanctity, and should
not be exalted into an end in
themselves.

IN 187o

HE fact that a woman

Igoes in good society is
evidence that she is of
chaste character. - Crandally. People (1870) 2 Lans.
Y.) 309.