Regimul juridic al probelor din auzite în legislația Statelor Unite ale Americii. Propuneri de lege ferenda privind reglementarea probelor din auzite în dreptul procesual penal român

Rezumat

 In the present paper the author undertakes a detailed analysis of the Hearsay Rule, an uncommon legal procedure in the continental legal systems, but which benefits from a very rigorous and well elaborated corpus of regulations under the Federal Rules of Evidence. The aforementioned corpus of regulations was developed and constructed over many decades on the basis of judicial practice and it is specific to the common law system being a fundamental institution of it, which governs the procedures of administering the testimonial evidence. In contrary to the continental legal systems where the rules governing the administering of testimonial evidence are contained in the codes of criminal and civil procedure, in the common law system, besides the codes of procedures, there is also a specific regulation regarding the admissibility of evidence, applicable in both civil and criminal cases.

The particularity of the present paper is given by the fact that it brings into the attention of the domestic legal profession a foreign legal construction, which was the object of very few studies in Romania, and which assures a plus of dependability to the use of testimonial evidence. This system works perfectly in the US legal system. In my opinion the lack of clear dispositions in the new Romanian codes of criminal and civil procedures which would interdict expressly the administering of hearsay evidence or the use of a testimonial evidence administered in an another case, without the possibility of the interrogation of the witness in a case in which the testimony is being used, does great prejudices to the procedural rights of the parties. Furthermore the basic principles of finding out the truth is violated not to mention the serious devaluation of the quality of the administration of justice reported to fact of the questionable nature of such evidence.

                I consider that the various aspects presented in this paper could constitute a source of inspiration for the future regulation of the problematical nature of the hearsay evidence in the Romanian legal system. The simple fact that the domestic procedural tradition did not know the regulation of this institution it is not a convincing argument for the omission of taking on the question of the hearsay evidence. The unconvincing nature of the argument is further emphasized by the fact that the new Romanian Code of Criminal Procedures took over institutions specific for the common law system, institutions which are alien in our country, like the plea bargaining or the institution of the admission of guilt.