A 'telephone exception' to hearsay?

Abstract

It cannot be doubted that the rule against hearsay can have undesirable results. As a result suggestions for reform are frequently made. However, it is not the case that all possible liberalisations of the rule against hearsay are improvements. One such is the suggested‘telephone exception’ put forward in the mid-90s in the High Court of Australia. As a matter of authority, the suggestion has not been definitively accepted or rejected. Two reasons are given here for rejecting it. First, a look at the law in other common law jurisdictions, starting almost as soon as the telephone was invented and continuing to the present day, indicates that such an exception is recognised nowhere else, and that the hearsay rule, properly applied, allows in many if not most statements of real probative value. Secondly, psychological studies confirm the speciousness of what pass for the empirical arguments for a special telephone exception.