1 Park, RC “I didn't tell them anything about you: Implied assertions as hearsay under the Federal Rules of Evidence” (1990) 74 Minnesota Law ReviewGoogle Scholar 783 at 794.

2 Morton, M “The hearsay rule and epistemological suicide” (1986) 74 Georgia Law JournalGoogle Scholar 1301; McCormick, CT “The new code of evidence of the American Law Institute” (1942) 20 Texas Law ReviewGoogle Scholar 661 at 671.

3 Morton, id at 1305.

4 See Moorehead, JD “Compromising the hearsay rule: The fallacy of res gestae reliability” (1995) 29 Loyola Los Angeles Law ReviewGoogle Scholar 203 at 224; Mueller, CB “Post modern hearsay: The importance of complexity” (1992) 76 Minnesota Law ReviewGoogle Scholar 367 at 383–84.

5 Moorehead, id at 223–24.

6 Mary Morton recognizes the need for this distinction. Thus she distinguishes between implicit hearsay and explicit hearsay, the latter being the concern of legal commentators. See Morton “The hearsay rule and epistemological suicide”, above at note 2 at 1306.

7 For a brief description of the development of the concept, see Morgan, E “Hearsay dangers and the application of the hearsay concept” (1948) 62 Harvard Law ReviewCrossRefGoogle Scholar 177 at 179.

8 Referred to in Cross, REvidence (1970, Butterworths)Google ScholarPubMed at 490.

9 Phipson, SL and Elliott, DWPhipson's Manual of the Law of Evidence (10th ed, 1972, Sweet and Maxwell)Google Scholar at 271.

10 Cross Evidence, above at note 8 at 490.

11 Morgan “Hearsay dangers”, above at note 7 at 179.

12 Wellborn, OG III “The definition of hearsay in the Federal Rules of Evidence” (1982) 61 Texas Law ReviewGoogle Scholar 49 at 51.

13 Weissenberger, G “Reconstructing the definition of hearsay” (1996) 57 Ohio State Law JournalGoogle Scholar 1525 at 1533.

14 7A&E 313, 112 Eng Rep 488 Exch Ch1837 aff'd 5C & F 670, 7 Eng Rep 559 (HL 1838).

15 Id at 388–89, 112 Eng Rep at 516.

16 This is because they indirectly border on the opinion of the authors. There was no suggestion that the authors were medical experts and it is doubtful if the issue of sanity is a matter on which lay opinion can be received. However, it is arguable that the letters were circumstantial evidence. The definition of “relevant evidence” under rule 401 is wide enough to cover circumstantial evidence.

17 But see: Fenner, GM “Law professor reveals shocking truth about hearsay” (1993) 62 UMKC Law ReviewGoogle Scholar 1 at 14, suggesting that every hearsay problem can be recast into a rule 401/403 problem; and Wellborn III “The definition of hearsay”, above at note 12 at 62, suggesting that all hearsay evidence could be viewed as a kind of circumstantial evidence, and that all hearsay risk could, in that view, be transmogrified into mere questions of weight.

18 Wellborn III, id at 51. The Advisory Committee refers to a 15 member committee appointed by the US chief justice in 1965 to undertake the process of crafting a comprehensive evidence code. See generally Rice, P and Delker, N “Federal Rules of Evidence Advisory Committee: A short history of little consequence” (2000) 191 Federal Rules DecisionsGoogle Scholar 678 at 683.

19 See below under “Rationale for prohibition against hearsay”.

20 See Wellborn III “The definition of hearsay”, above at note 12 at 93, citing considerable support for that view. See also: Maguire, JH “The hearsay system: Around and through the thicket” (1961) 14 Vanderbilt Law ReviewGoogle Scholar 741; McCormick, CT “The Borderland of Hearsay” (1930) 39 Yale Law JournalGoogle Scholar 489; United States v Zenni 492 F supp 464, 469 (ED KY 1980).

21 See Wellborn III, id at 61.

22 Id at 62.

23 Ibid.

24 An example is Texas. See Carlson, R, Imwinkelried, E and Kionka, EEvidence in the Nineties, Cases and Materials (3rd ed, 1991, Michie Co)Google Scholar at 200.

25 492 F supp 464 (ED KY 1980).

26 902 F 2d 1176 at 1179 (5th Cir 1990). See also United States v Giraldo 822 F2d 205 (2d Cir 1987); United States v Oguns 921 F 2d 442 at 448–52 and 449 (2nd Cir 1990); United States v Long 905 F 2d 1, 1572 at 1579–80 (DC Cir 1990); United States v Southard 700 F 2d 1, 13 (1st Cir 1983) cert denied 463 US 823; United States v Pasha 332 F 2d 193 at 196–97 (7th Cir 1964) cert denied 379 US 839.

27 See also United States v Perez 658 F2d 654 (9th Cir 1981), treating non-assertive verbal conduct not as hearsay; United States v Snow 517 F2d 441 (9th Cir 1975), treating an inscription in a briefcase as circumstantial evidence, not intended as assertion, and therefore admissible. However, contrast United States v Paceli 491 F2d 1108 (2nd Cir) cert denied 419 US 826 (1974); Park v Huff 493 F2d 923 (5th Cir 1974); Krulewitch v United States 336 US 440 (1949); and Teper v Queen (1952) A0. 480 (P0), which treated implied assertions as hearsay.

28 See Rothstein, PFRules of Evidence for the United States Courts and Magistrates (2nd ed, 1979, Clark Boardman)Google Scholar at 322; Graham, MHHandbook of Federal Evidence (4th ed, 1996, West Publishing Company)Google Scholar S 801 at 190–202; Allen, R and Kuhns, R1991 Federal Rules of Evidence (1991, Little Brown & Co)Google Scholar at 123; Younger, IHearsay: A Practical Guide Through the Thicket (1988, Prentice Hall)Google Scholar at 48.

29 This view was represented by United States v Biener 52 F supp 54 (ED Pa 1943). See also People v Johnson 68 Cal 2d 646, 441 P 2d 111, 68 Cal Repr 599 (1968) cert denied, 393 US 1051 (1969).

30 See Carlson et al Evidence in the Nineties, above at note 24.

31 Rothstein Rules of Evidence, above at note 28; Carlson et al, id at 581, citing Comer v State 222 Ark 156, 257 SW 2d 565 (1953).

32 The absurdity of the limitation was brought out in United States v Palacios 556 F2d 1359 (5th Cir 1977) where a witness's prior inconsistent statement, which was signed, was not admitted as it had not been made under oath.

33 Carlson et al Evidence in the Nineties, above at note 24 at 583; Mueller, CB and Kirkpatrick, LCEvidence (1995, Little Brown)Google Scholar S 8.24 at 862–63, suggesting factors that the court should consider in determining the sufficiency of such statements; Strong, JW (ed) McCormick on Evidence (1992, West Publishing Co)Google Scholar S 251 at 118, citing Gibbons v State 248 Ga 858, 286 SE 2d 717 (1982) and State v Copeland 278 SC 572, 300 SE 2d 63 (1982) cert denied 460 US 1103, rehearing denied 462 US 1124.

34 As happened in United States v Biener 52 F supp 54 (ED Pa 1943) and United States v De Sisto 329 F 2d 929 (2nd Cir) cert denied 377 US 979 (1964).

35 Ibid.

36 See Younger Hearsay, above at note 28 at 63.

37 The statement was made to the Federal Bureau of Investigation.

38 The statement was also made under oath before the grand jury and at an initial trial.

39 R v Adeyemi (1961) LLR 79. See also Bamgbade v Balogun (1994) 1 NWLR (pt 323) 718 CA at 752 per Nsofor JCA, stating: “I had earlier in the judgment referred to the various previous judgments (exhibits 1, 2, 3 and 4). And as I said earlier also in this judgment, evidence given in previous proceedings by a witness who is called in the present case can be used to impeach his credit under secs 208 and 210 of the Evidence Act. In that case, evidence in the previous proceedings does not become evidence in the present case. If the two testimonies are inconsistent it shows that the witness is not credible. See Babatunde Jemi Alade v Lawani Aborishade (1960) SCNLR 398; 5 FSC 167 at 171–73. See also Karimu Olujinle v Bello Adeagbo (1988) 2 NWLR (pt 75) 238 cited by the respondent in his brief” (emphasis added). See also Egesie v Elele (2001) 8 NWLR part 716, 582 at 590 per Ignatius Pats-Acholonu JCA: usually the testimony of a witness given in previous proceedings can only be used in cross-examination to test the veracity and integrity of a witness in the box; it is not a substitute for evidence that ordinarily should be given by a party. In the case of Alade v Aborishade (1960) SCLNR 398 (1960) 5FSC 167 at 163, the Supreme Court held: “[t]he evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that”.

40 Rice, PEvidence: Common Law and Federal Rules of Evidence (3d ed, 1996, Irwin Professional Publishing)Google Scholar at 236.

41 Mueller and Kirkpatrick Evidence, above at note 33, S 8.12 at 818.

42 Id at 823.

43 For a similar view, see Mueller, CB “Post modern hearsay reform: The importance of complexity” (1992) 76 Minnesota Law ReviewGoogle Scholar 367 at 416, suggesting that subjective intent should be interpreted broadly.

44 Rice Evidence, above at note 40 at 237.

45 United States v Muscato 534 F supp 969 (EDNY 1982); Posner v Dallas County Welfare 784 SW 2d 585 (Tex Ct App 1990); Armstrong v State 826 P 2d 1106 (Wyo 1992).

46 Bridges v State 19 NW, 2d 529 (Wis 1945); United States v Parry, 649 F 2d 292 (5th Cir 1981).

47 517 F 2d 44 (9th Cir 1975).

48 See also United States v Saint Prix 672 F.2d 1077 (2d Cir 1982) cert denied, 456 US 992 (1982). For criticism of this and similar cases, see Fenner “Law professor reveals shocking truth”, above at note 17 at 16–21.

49 Aguda, TAThe Law of Evidence (3rd ed, 1989, Spectrum Books)Google Scholar at 3. See also Elias, TOThe Nigerian Legal System (2d ed, 1963, Routledge & K Paul)Google Scholar; and Park, AEWThe Sources of Nigerian Law (1963, African Universities Press / Sweet & Maxwell)Google Scholar.

50 This was done by means of several provisions in what are called reception statutes. Examples are: Ordinance no 3 of 1863, Interpretation Act, cap 89 sec 45 High Court Law of Eastern Region, no 27 of 1955; High Court Law of Northern Region no 8 of 1955; Law of England (Application) Law of Western Nigeria, cap 60; Western Region High Court Law, cap 44. See generally Park, id at 5–42; Elias, id at 17–21; Obilade, AOThe Nigerian Legal System (1979, Sweet & Maxwell)Google Scholar; Okonkwo, CO (ed) Introduction to Nigerian Law (1980, Sweet & Maxwell)Google Scholar.

51 Ordinance no 27 of 1943.

52 Cap 112 Laws of the Federation of Nigeria, 1990.

53 See Workshop Papers on the Reform of the Evidence Act (1995, Nigerian Law Reform Commission) at 324–445.

54 Above at note 8, 12th ed.

55 See Nwadialo, FModern Nigerian Law of Evidence (1981, Ethiope Publishing Corp)Google Scholar at 36–93; Aguda The Law of Evidence, above at note 49 at 7; Osibajo, Y “The common law, the Evidence Act and interpretation of section 5(a)” in Omotola, JA (ed) Essays in Honour of Judge Elias (1987, Faculty of Law, UNILAG)Google Scholar 165; A Kalu “Reform of the evidence law” in Workshop Papers, above at note 53, 224 at 228–30; LO Azubuike “Proposals on the reform of the Evidence Act” in Workshop Papers, id, 279 at 280–81.

56 See sec 5(a) of the Evidence Act.

57 (1956) 1 WLR 965.

58 Id at 969; see also Awuse v Odili (2005) 16 NWLR part 952, 416; Omonga v State (2006) 14 NWLR part 1000, 532.

59 See, for example, Ogbeide v Osula (2004) 12 NWLR part 886, 86, holding that, by virtue of sec 77 of the Evidence Act, a matter in dispute in a suit cannot be proved by hearsay evidence.

60 Abadom v State (1997) 1 NWLR (pt 479) 1 CA; NWOBOSI v ACB Ltd (1995) 6 NWLR (pt 404) 658 SC; Ojo v Gharoro (2006)10 NWLR part 987, 173 at 198–99, per Niki Tobi JSC stating “[h]earsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but rests also, in part, on the veracity and competence of some other person. …The Evidence Act Cap 112, Laws of the Federation of Nigeria, 1990 does not specifically use the expression ‘hearsay evidence’ but the totality of sec 77 of the Act, by interpretation of the courts, provide [sic] for hearsay evidence.”

61 Armel Transport Ltd v Martins (1970) 1 ALL NLR 27.

62 Aguda doubts whether the rule and its exceptions are part of Nigerian law (see Aguda The Law of Evidence, above at note 49 at 60), while Nwadialo expresses the view that sec 77 of the Evidence Act embodies the hearsay rule and that, although its provisions deal with oral evidence, its underlying principles govern documentary evidence as well (see Nwadialo Modern Nigerian Law of Evidence, above at note 55 at 98).

63 Younger Hearsay, above at note 28 at 48.

64 See Wigmore Evidence, above at note 30 at S 1370. Presumably the evidence has been tested by cross examination in the former proceeding. However some will argue that such previous cross examination will not suffice for the later case and that the trier of facts would still be deprived of the opportunity to watch the demeanour of the witness in the former proceeding.

65 The decree defines hearsay, prohibits its admission in evidence but makes exceptions for situations where hearsay can be admitted.

66 However it can be argued that, consistent with the relevancy / admissibility dichotomy, where the content of a document is itself the fact in issue, then production of the document is not hearsay, as the fact to be proved is the statement contained in the document and not the truth of the statement.

67 FF Rossi “The silent revolution” 9 Litigation 13 at 13–17, regarding the exclusion of hearsay as a fiction.

68 Mueller “Post modern hearsay reform”, above at note 43 at 370.

69 Milich, P “Hearsay antinomies: The case for abolishing the rule and starting over” (1992) 71 Oregon Law ReviewGoogle Scholar 723 at 745–69.

70 Ibid.

71 Seigel, M “Rationalizing hearsay: A proposal for a best evidence hearsay rule” (1992) 72 Boston University Law ReviewGoogle Scholar 893 at 909–10.

72 Welborne III “The definition of hearsay”, above at note 12 at 52–53; Milich “Hearsay antinomies”, above at note 69 at 726; Seigel “Rationalizing hearsay”, above at note 71 at 905; Mueller and Kirkpatrick Evidence, above at note 33, S8.2 at 787–90.

73 Mueller and Kirkpatrick, id at 788.

74 Id at 788–89.

75 Id at 789.

76 Id at 791.

77 Wellborn III “The definition of hearsay”, above at note 12 at 54.

78 See for example sec 180 of the Nigerian Evidence Act and sec 202 of the Draft Evidence Decree.

79 Strong (ed) McCormick on Evidence, above at note 33 at 94; Mueller and Kirkpatrick Evidence, above at note 33 at 791.

80 Morgan “Hearsay dangers”, above at note 7 at 186.

81 Cross Evidence, above at note 8 at 498; Rudd, GRThe Nigerian Law of Evidence (1964, Butterworths)Google Scholar at 131.

82 Wigmore Evidence, above at note 30 at 10.

83 The US Constitution guarantees the right to confrontation, while the Nigerian Constitution subsumes this in the right to a fair hearing.

84 Wigmore Evidence, above at note 30 at 3.

85 See Weigend, T “Should we search for the truth and who should do it?” (2011) 36 North Carolina Journal of International Commercial RegulationGoogle Scholar 389 at 398, quoting JH Wigmore. See also Tillers, P and Schum, D “Hearsay logic” (1992) 76 Minnesota Law ReviewGoogle Scholar 813.

86 Cross Evidence, above at note 8 at 498; Martin, MMBasic Problems of Evidence (6th ed, 1988, American Law Institute and American Bar Association)Google Scholar at 299; Moorehead “Compromising the hearsay rule”, above at note 4 at 218.

87 Morgan, “EMSome Problems of Proof Under the Anglo-American System of Litigation (1956, Colombia University Press)Google Scholar at 142–43; see also Moorehead, ibid.

88 Park, R “A subject matter approach to hearsay reform” (1987) 86 Michigan Law ReviewCrossRefGoogle Scholar 51 at 96.

89 See also Mueller “Post modern hearsay”, above at note 4 at 291.

90 Morton “The hearsay rule”, above at note 2 at 307; see also Mueller, ibid.

91 Strong (ed) McCormick on Evidence, above at note 33 at 94–95.

92 Milich “Hearsay antinomies”, above at note 69 at 741–43.

93 Mueller and Kirkpatrick Evidence, above at note 33, S 8.3 at 792.

94 For more considerations, see ibid.

95 Rudd The Nigerian Law of Evidence, above at note 81 at 132.

96 Hart and McNaughton, “Some aspects of evidence and inference in the law” in Lerner, D (ed) Evidence and Inference (1958, The Free Press)Google Scholar 56, quoted in Moorehead “Compromising the hearsay rule”, above at note 4 at 220.

97 Park “A subject matter approach”, above at note 88 at 63–64; Park, R “The hearsay rule and the stability of verdicts: A response to Professor Nesson” (1986) 70 Minnesota Law ReviewGoogle Scholar 1057 at 1059.

98 Moorehead “Compromising the hearsay rule”, above at note 4 at 212–14.

99 Morgan Some Problems of Proof, above at note 87 at 109; see also Milich “Hearsay antinomies”, above at note 69 at 741.

100 Milich, id at 724, 725 and 771.

101 Callen, CR “Hearsay and informal reasoning” (1994) 47 Vanderbilt Law ReviewGoogle Scholar 43 at 66.

102 See Miene, P, Park, RC and Borgida, E “Juror decision making and the evaluation of hearsay evidence” (1992) 76 Minnesota Law ReviewGoogle Scholar 683.

103 Kovera, M Bull, Park, RC and Penrod, SC “Jurors' perception of eyewitness and hearsay evidence” (1992) 76 Minnesota. Law ReviewGoogle Scholar 703.

104 Ibid.

105 Mueller “Post modern hearsay reform”, above at note 43 at 383.

106 Moore v United States 429 US 20 1976. See Callen “Hearsay and informal reasoning”, above at note 101.

107 Park “A subject matter approach”, above at note 88 at 62; Park “The hearsay rule”, above at note 97 at 1060; Mueller “Post modern hearsay reform”, above at note 43 at 396.

108 Mueller, id at 397.

109 Rules 803(24) and 804(b)(5).

110 See sec 6 of the Evidence Act.

111 Compare with sec 36 of the Nigerian Constitution, 1999.

112 Park “A subject matter approach”, above at note 88 at 88–89.

113 Pointer v Texas 380 US 400 (1965); Ohio v Roberts 448 US 56 (1980).

114 California v Green 399 US 149 (1970); United States v Owens 484 US 554 (1988).

115 Above at note 113.

116 Barber v Page 390 US 719 (1968) in which the failure of the prosecution to bring a witness who was in prison in a neighbouring state was not excused; Roberts, ibid, which found there was a good faith effort where the prosecution tried to serve the declarant at her parental home.

117 The following have been said to be firmly rooted exceptions: former testimony (Roberts, ibid); co-conspirator exception (United States v Bourjaily 483 US 171 (1987)); business records, dying declarations and public records (Roberts, ibid).

118 Chambers v Mississippi 410 US 284 (1973); Green v Georgia 442 US 95 (1979); see Imwinkelried, EJ “The constitutionalization of hearsay: The extent to which the fifth and sixth amendments permit or require the liberalization of the hearsay rules” (1992) 76 Minnesota Law ReviewGoogle Scholar 521 at 553, suggesting that the prosecution cannot surmount common law and statutory hearsay rules, whereas the accused can use hearsay which is material.

119 541 US 36 (2004).

120 Chief Justice Rehnquist, who had concurred with the outcome of the case but had dissented from the court's reasoning, criticized the reasoning on this ground, although the majority countered that the uncertainty will be interim and cannot be any worse than under the Roberts test which was inherently and permanently unpredictable: see 541 US 36 at 75–76 (2004).

121 547 US 813 (2006).

122 Ibid.

123 Davis, id at 822.

124 In the more recent (2009) case of Melendez-Diaz v Massachusetts docket 07-591, 129 SC, a split court characterized state laboratory analysts' sworn certificates as testimonial and therefore subject to the Confrontation Clause. For further discussion of this point, see Bourne, J “Prosecutorial use of forensic science at trial: When is a lab report testimonial?” (2009) 93 Minnesota Law ReviewGoogle Scholar 1058; Burke, T III “The test results said what? The post-Crawford admissibility of hearsay forensic evidence” (2008) 53 South Dakota Law ReviewGoogle Scholar 1; Morin, B “Science, Crawford and testimonial hearsay: Applying the Confrontation Clause to laboratory reports” (2005) 85 Boston University Law ReviewGoogle Scholar 1243; Doellman, D “The Crawford confusion marches on: The Confrontation Clause and hearsay laboratory drug reports” (2008) 73 Missouri Law ReviewGoogle Scholar 583; Spires, J “Testimonial or nontestimonial? The admissibility of forensic evidence after Crawford v Washington” (2005) 94 Kentucky Law JournalGoogle Scholar 187; Imwinkelried, E “This is like déjà vu all over again: The third constitutional attack on the admissibility of police laboratory reports in criminal cases” (2008) 38 New Mexico Law ReviewGoogle Scholar 303; and Silverman, V “Testing the testimonial doctrine: The impact of Melendez-Diaz v Massachusetts on state-level criminal prosecutions and procedure” (2011) 91 Boston University Law ReviewGoogle Scholar 789.

125 See footnote 2 of the opinion at 547 US 813, 823 (2006).

126 See sec 36 of the Nigerian Constitution, 1999 and Abinkumi v Kasimu (1962) NNLR 26, in which the use, in later proceeding, of evidence given in prior proceedings was held to violate the right to a fair hearing.

127 Park “A subject matter approach”, above at note 88 at 65, quoting Lempert, R and Saltzburg, SA Modern Approach to Evidence (2nd ed, 1982, West Publishing Co)Google Scholar at 521–22.

128 Park, id at 68; Mueller “Post modern hearsay reform”, above at note 43 at 393.

129 Park, id at 103.

130 Nesson, C “The evidence or the event: On judicial proof and the acceptability of verdicts” (1985) 98 Harvard Law ReviewCrossRefGoogle Scholar 1357; for a critique of the view, see Park “The hearsay rule”, above at note 97.

131 Milich “Hearsay antinomies”, above at note 69 at 764; Park “A subject matter approach”, above at note 88 at 68; Park “The hearsay rule”, id at 1059–60. Prof Ronald Allen regards this reason as scandalous; see Allen, R “The evolution of hearsay to a rule of admission” (1992) 76 Minnesota Law ReviewGoogle Scholar 797 at 801.

132 Kadish, MR and Davis, M “Defending the hearsay rule” (1989) 8 Law and PhilosophyCrossRefGoogle Scholar 332 at 349.

133 Tillers and Schum “Hearsay logic”, above at note 85 at 858.