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I am having trouble understanding the logic of the law discrepancy between hearsay and witness testimony in towards proving guilt rather than innocence.

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    Could you please explain at greater length what about this confuses you? Jul 25, 2022 at 22:14
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    Why do you suppose that witness testimony cannot be disproven? Perjury is the offense of lying under oath - a perjury conviction requires proving that the testimony was false. If witnesses could not be disproven, it would be impossible to successfully try a witness for perjury. Jul 26, 2022 at 14:46
  • I used to hear, “innocent until proven guilty.” Jul 26, 2022 at 16:03
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    "Witness" is me saying Nick Carducci asked this question on this web page. "Hearsay" is my brother (who never read stackexchange) saying that I said I read Nick Carducci's question - he "heard" me "say" it - hear-say. My brother's witness testimony only proves that I said it. It would be unfair to use that fact to prove that you wrote this question. Only a person who has seen this web page can be a witness to the fact that you have written this question. So I can be a witness, David Siegel can be a witness, Nuclear Hoagie can be a witness but not my brother
    – slebetman
    Jul 26, 2022 at 16:15
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    The title and the body of this question seem to be unrelated. Which are you asking: (1) why a witness is evidentiary if it cannot be disproven?; or (2) what is the difference between hearsay and non-hearsay evidence? You also seem to have a contradiction between your question ("guilt rather than innocence" -> criminal law) and your tags (civil-judgment). Please edit the question to clarify these points.
    – JBentley
    Jul 27, 2022 at 10:41

3 Answers 3

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The general rule is that sworn testimony of a witness with personal knowledge of the facts is competent evidence. A guilty verdict in a criminal case will only be upheld on appeal if sufficient competent evidence to support that verdict was admitted at trial.

The hearsay rule is not about the reliability of witness testimony in general, it is about quality control with respect to witness testimony.

The primary effect of the hearsay rule is to prevent someone trying to prove something from doing so by affidavit without making the person who actually made that statement that proves something come into court where they are subject to cross-examination. This shifts the burden of getting someone into court from the person trying to defend against evidence to the person relying upon the evidence.

Cross-examination of a live witness is more effective at resolving subtle ambiguities or omissions in a statement than an unresponsive affidavit or testimony from someone who merely heard someone else say something.

The hearsay rule also minimizes the risk illustrated by the children's game of "telephone" where one person passes a statement to another in many iterations and the person at the end of the line announces the statement, which is often greatly degraded or distorted from the original statement. Hearing something straight form the "horse's mouth" avoids that.

There are many circumstances, however, where these considerations are not paramount, which is why there are myriad exceptions to the hearsay rule.

Witness testimony under oath and subject to cross-examination still does not mean that the party offering it automatically proves what the witness testified to in most cases. The finder of fact can weight the credibility of the witness, physical evidence, documents that are not hearsay or are exempt from the hearsay rule, circumstantial evidence contrary to witness testimony, or of course, directly contrary testimony, in deciding what the real facts of a case are, and indeed, cases rarely go to trial unless there are disputes concerning what the facts of the case really are.

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    +1 for many good points. Another related point, worth mentioning explicitly: A witness in court is affirming their testimony under penalty of perjury; this gives a substantial disincentive/protection against false testimony. With hearsay, it’s much harder to penalise inaccuracy, since the person relaying the account cannot (not may not or must not, but literally cannot) vouch for the accuracy of the claimed evidence. Jul 26, 2022 at 14:56
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    @PeterLeFanuLumsdaine Technically true. In practice, statements made under oath in open court are probably more likely to be lies than unsworn out of court statements as a matter of empirical reality, and unsworn out of court statements often have serious legal consequences (even criminal consequences) anyway.
    – ohwilleke
    Jul 26, 2022 at 16:56
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    The error in Cassidy Hutchinson's testimony regarding the "beast" vs. the SUV is a concrete example. Likely nobody mentioned the car, and she confabulated that it was the beast. Jul 26, 2022 at 19:19
  • @ohwilleke Hearsay is the worst of both worlds though. It's a statement under oath in open court (with all the accuracy risks of that) which, at best, accurately relays an unsworn out of court statement (with all the accuracy risks of that). Jul 27, 2022 at 19:20
  • @DavidSchwartz The reality is that people routinely rely on many kinds of hearsay for very important decisions in their personal and professional lives outside the legal system all of the time while thinking nothing of it. Allowing hearsay is preventing the best from being the enemy of the good.
    – ohwilleke
    Jul 27, 2022 at 22:20
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Witness testimony can be disproved, or perhaps the better word would be countered. One side can call a different witness who will tell a contradictory story. Physical evidence which contradicts a witness account can be introduced. Cross-examination can reveal contradictions in a witness's testimony. It can also cast doubt on a witness's credibility or reliability. Other evidence can show that a witness has a motive to lie or to favor one side of a case. In the case of eyewitness identification in particular, scientific (expert) evidence can show the error rate of such testimony, and the circumstances in which it is likely to be more or less reliable. And closing argument from a lawyer can attack the consistency, probability an likelihood of a witness account.

The trier of fact (Judge or Jury) can take all this into account in determining how much, if any, weight to give the testimony of a particular witness.

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Hearsay adds an extra abstraction on witness testimony, which leads to the possibility that, at the same time:

  • The witness' statement is correct
  • The facts stated by the witness did not actually happen

Take the example of Bob. He's currently on trial, he is accused of breaking the flag pole on top of the building.

John testifies. John didn't see Bob, but he was told by Mary that she saw Bob on the roof of the building (let's take it as a fact that Mary did in fact make this statement to John). John makes the following statement:

"Mary told me Bob was on the roof of the building"

This statement is factually correct. Mary did tell John that she saw Bob on the building. John is generally expected to be a very believable witness since he is telling the genuine truth.

However, John's statement does not help us in establishing whether or not Bob actually was on the building; because Mary might have been lying to John. Maybe Mary intentionally lied (e.g. to boast about Bob being a daredevil, falsely accuse Bob of improper behavior, ...), or maybe Mary made a genuine mistake (e.g. Mary has bad eyesight and mistook someone else for Bob, ...)

To verify the correctness of Mary's claim, we would need to cross-examine Mary. She's the one making the claim, so she's the one who should be examined.

But we have John in front of us. John cannot help us verify whether Mary was telling the truth or not, because John was the recipient of Mary's statement, not an active participant; so John is "useless" in regards to Mary's claim of seeing Bob on the roof, and therefore Mary's claim should be made (in court) by none other than Mary herself.

This is why we call a claim that the witness has heard but not witnessed to be hearsay. The witness did not witness it. They just heard it said.

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  • The Hearsay falls differently if we know Mary knew that Bob was dead in her cellar... Now we use John to testify that Mary did tell people the wrong whereabouts of Bob to prevent her crime from being found and suddenly Bob's testimony is admissible.
    – Trish
    Jul 26, 2022 at 16:49
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    Some of your post is correct, but certainly not the last sentence in bold. The fact that you hear something said absolutely does help to verify whether what you heard was in fact true. It isn't perfect, but neither is anything else.
    – ohwilleke
    Jul 26, 2022 at 16:57
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    @Trish: "Her crime". That's not evidence against Bob, it's evidence against Mary. That's not hearsay.
    – Flater
    Jul 26, 2022 at 17:17
  • @Trish [..] It's evidence of Mary lying, not evidence of Bob being on the roof.
    – Flater
    Jul 26, 2022 at 17:24
  • @Flater That's exactly what I said?
    – Trish
    Jul 26, 2022 at 17:36

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