I sit in a Mexican courtroom watching an oral trial in the new system. It's a murder case. Three judges sit with solemn authority, all of which have never presided over this case before, as required by Mexican procedure (for you U. S. readers, there are no juries in Mexico's new system). The first prosecution witness is called. It's a woman, about 40 years old. The chief judge swears her in. The prosecutor begins his direct examination. He begins with some standard background questions, nothing unusual.

Then come the questions related to the case. The witness's first answer starts with, "My son told me..." I look to the defense awaiting a hearsay objection. He doesn't even look up. Not good, I think, he should pay more attention. The next answer begins with "My son told me..." Again, no objection. In fact, the witnesses testified for at least half an hour and nearly every answer began the same. It was clear that this witness saw nothing and was never even at the crime scene. Never once was there an objection. No one, including the three judges, seemed to care (except perhaps me).

I realized that either these folks don't know hearsay isn't good evidence or ... the horror ... the hearsay simply wasn't prohibited.

Afterwards, I spoke to the defense attorney and the prosecutors. The defense attorney said he objected before trial, but it was overruled. The prosecutors told me hearsay is admissible; that the judges can determine its weight. They also told me that they had her son, and he would also testify at trial to what he told his mother. The mother's testimony goes to her son's credibility.

So I ask myself: Should hearsay be prohibited in Mexico's new criminal justice system? My legal education-or perhaps my indoctrination-tells me there are a number of reasons to exclude it:

It's not subject to cross-examination, because the person who actually made the statement is not there. The judge can't observe that person's demeanor to see if he's lying or confused. In most cases, the original statement was not made in court under oath, with no legal obligation to tell the truth. So how can a judge determine whether the original witness was being honest?

But, in the trial I was observing, the prosecution was going to call the son, the one who actually made the statements. Doesn't that solve the problems above? The actual witness is now under oath, subject to cross and the judge can observe his demeanor. Plus, these are legally educated judges, not hearsay-susceptible juries. Problem solved, right?

Not completely. There are other concerns. Judges are not legal robots, they are human. What is a judge to do when the mother's story and the son's story are different, albeit subtly? What if the mother seems dishonest, but the son testifies well? What if the mother mentions something important that the son does not? Can the judge unring that bell in his mind? Might not a witness, to boost his credibility, gather up some friends and family to testify that, "Sure, that's exactly what he told me before!" How could you ever stop this sort of deception?

If we are so confident that judges can sort through good and bad evidence, why exclude any evidence at all? Just let the judges see everything and render their decision.

The truth is, there is no clear answer to these questions. The hearsay rule in the United States, along with its dizzying array of exceptions, has its drawbacks. The absence of a jury in the Mexican system further clouds this issue. Despite my ingrained aversion to hearsay, today I am not ready to disagree with the use I saw at that trial. Maybe I never will.