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1940

Role of Hearsay in a Rational Scheme of Evidence

George F. James

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Recommended Citation George F. James, "Role of Hearsay in a Rational Scheme of Evidence," 34 Illinois Law Review 788 (1940).

This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. THE ROLE OF HEARSAY IN A RATIONAL SCHEME OF EVIDENCE George F. James*

qualifications of witnesses against which Jeremy Bentham directed his ARLY in the nineteenth century he had directed some of his most viru- considerable analytical powers lent attacks. For the latter, Thayer's toward the common law rules of evi- point of view, and directly or through dence to discover to what extent they Thayer the spirit of Wigmore's treatise, were adapted to their apparent purpose owe much to Bentham's works. How- - -the discovery of truth. His conclusion ever, neither Thayer nor Wigmore was bitter, adopted Bentham's attitude of whole- "That the system, taken in the aggre- sale enmity toward the rules of evi- gate, is repugnant to the ends of justice; dence. Thus, Thayer, although he sug- and that this is true of almost every gests as a "main rule" of evidence "that rule that has ever been laid down on 3 ' the subject of evidence.' whatsoever is relevant is admissible, This reaction is almost the inevitable re- elsewhere states with reference to our sult of what Bentham described as the voluminous and complex system of ex- "theorem" of his treatise: clusionary rules: "The few principles which underlie "The theorem is this: that, merely this elaborate mass of matter are clear, 4 with a view to rectitude of decision, to simple, and sound." the avoidance of the mischiefs attached to undue decision, no species of evi- Similarly Wigmore, though sharply crit- dence whatsoever, willing or unwilling, ical in many particulars, has written: ought to be excluded: for that although "... the present rules as a whole are in certain cases it may be right that this sensible ones. Taking each of them in or that lot of evidence, though tendered, the big, there is hardly one that is not should not be admitted, yet, in these based on some aspect of human nature, cases, the reason for the exclusion rests which needs some such a rule of on other grounds; viz. avoidance of 5 2 warning." vexation, expense, and delay." At the extreme of admiration we find Bentham's analysis produced results Greenleaf, who writes at the close of both practical and theoretical. For the his first volume on Evidence: former, the half century after his death "Having thus completed the original saw the abolition of many of the dis- design of this volume, in a view of the * Ph.B. 1930, J. D. 1932, University of Chicago; at all, ultimately on the necessity that trials LLM. 1934, Columbia; Assistant Professor of must be concluded within limited time. Law, University of Chicago Law School. sThayer, Preliminary Treatise on Evidence IBentham, Rationale of Judicial Evidence at the Common Law (Little, Brown, and Com- (Hunt and Clarke, London, 1827) 21. pany, 1898) 523. 2 Id., at 1. The writer has heard Professor 4 Id., at 511. M. J. Adler express the same view:-that all 5Wigmore, Evidence (Little, Brown, and exclusionary rules rest, so far as they are sound Company, 1923) 127. [788]

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Principles and Rules of the Law of tained in courts of law or from the Evidence, understood to be common to legislatures.8 all the United States, this part of the work is here properly brought to a But since the nineteen twenties a close. The student will not fail to ob- major development 'in the law justifies serve the symmetry and beauty of this a complete reappraisal of the law of branch of the law, under whatever dis- advantages it may labor, from the man- evidence. While administrative boards ner of treatment; and will rise from were by no means unknown prior to the study of its principles convinced, the market crash of '29, in the past with Lord Erskine, that 'they are decade their tremendous rise in prac- founded in the charities of religion,- in the philosophy of nature,---in the tical importance is the outstanding fea- truths of history,--and in the experi- ture of the field of procedure. One im- 6 ence of common life'." portant consequence is that there is now So thoroughly had the arguments for a great body of litigation of utmost im- and against most of the exclusionary portance, involving frequent appeals to rules been analyzed and evaluated by the courts, in which the existing evi- earlier writers that in 1922, when the dential precedents, "the petty details Commonwealth Fund supported a crit- and infinitestimal absurdities with ical investigation of the law of evidence which the rules of evidence have been by a committee of most of the distin- elaborated" are not binding. guished living authorities, under the Indeed, certain of the statutes grant- chairmanship of Professor Morgan, the ing quasi-judicial powers to administra- committee decided not to discuss the tive boards appears to provide for hear- entire field or to re-examine a priori ings characterized by completely "free arguments, but to confine itself to an proof." However, they have not been so empirical examination of such specific construed. The freedom of investiga- reforms as were susceptible of this tion is commonly held to be limited by treatment. This decision was placed a somewhat vague principle expressed upon three grounds: that the rules of in a leading case as follows: evidence were "sound on the whole," "But the more liberal the practice in admitting testimony, the more impera- that only a few could be subjected to tive the obligation to preserve the empirical tests, and that only piecemeal essential rules of evidence by which and specific changes could possibly be rights are asserted or defended."'01 obtained anyhow. Subsequent experi- With this criterion to apply, how then ence has shown that even piecemeal do we determine which are the "essen- and specific changes are not easily ob- tial rules"? Clearly judicial precedents

6Greenleaf, Evidence (Sixteenth Edition, by ville & Nashville Railroad Co., 227 U. S. 88, 93 J. H. Wigmore, Little, Brown, and Company, (1913). Perhaps even more suggestive is the 1899) §534. The same passage also is found at phraseology of Judge Hough in John Bene & the close of each edition of Taylor on Evidence, Sons v. Federal Trade Commission, 299 Fed. 468, a leading English work based upon Greenleaf. 471 (C. C. A. 2d, 1924): "We are of opinion that 71Morgan et al, The Law of Evidence (Yale evidence or testimony, even though legally in- University Press, 1927) xlff. competent, if of the kind that usually affects 8 Morgan and Maguire, Looking Backward and fair minded men in the conduct of their daily Forward at Evidence (1937) 50 Harv. L. Rev. 909. and more important affairs, should be received 9 Wigmore, Evidence 127. and considered; but it should be fairly done." 1o Interstate Commerce Commission v. Louis- (Italics supplied.)

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will not prove particularly helpful. proof persuasive, the probability of the Practical experience might be the best generalization being determined by criterion for selecting "essential" rules expert evidence or by the practical of evidence but for the fact that on most knowledge of the court. Formal logic problems such experience is wholly cannot determine such a question. On lacking. There are usually no compara- the other hand, rules of law and that ble bodies of data obtained or obtain- most extraordinary concept, "legal rele- able under existing rules and under a vance," are even less helpful. One need system operating without these rules. only examine Sir James Stephen's irri- In most cases the only possible solution tating treatment of hearsay as "rele- must be sought in a priori argument. vant" and "irrelevant"1 2 to develop a It is hoped that this paper may shed strong aversion to any discussion of some light upon one corner of the field relevance which seeks to include pure- of evidence, and that it may even sug- ly legal criteria. The solution is ap- gest an approach toward the entire parently to regard relevance in foren- subject. sic proof neither as a lawyer's nor as a logician's but as an ordinary man's II concept, depending on whether the or- Let us start where Thayer started, dinary man, in making decisions in his with the proposition "that whatsoever own affairs, would regard the offered is relevant is admissable" unless sound evidence as having some tendency to cause can be shown for its exclusion. increase the apparent probability of the Here the term "relevant" is itself some- proposition sought to be proved. Al- what ambiguous. As Michael and Adler though on its face such a test may have argued, the word can hardly be seem unduly vague, it should present given a strict logical meaning.11 As a no difficult problems in application. To matter of logic an item of evidence is quote Professor Adler again, offers of relevant to a desired conclusion only in truly irrelevant evidence are almost terms of some (usually unexpressed) unknown. They will occur, rarely, as generality connecting the two. It is al- part of a line of proof known by the ways possible to imagine a general advocate to contain a concealed fallacy, proposition which can form the logical and sometimes as the result of mere nexus between the evidence and the carelessness or mistake.- s conclusion. On the assertion of such a The next inquiry relates to the possi- general proposition any logical difficulty ble grounds for excluding relevant vanishes. The only remaining problem proof. In the writer's opinion, there is whether the trier of fact will accept are only four.' 4 (a) Evidence may be the suggested generalization as suffi- excluded because, although relevant, ciently probable to make the line of its probative force is too slight to justify

13 Lichael and Adler, The Trial of an Issue versation; Professor Adler may have taken the of Fact (1934) 34 Col. L. Rev. 1224, 1462. same position in print. 12 Stephen, Digest of the Law of Evidence 14 Rules based on policies extraneous to the (MacMillan and Company, 1876) c. IV. problems of proof, such as the attorney-client 13 The reference is to a remark made in con- privilege, are left out of account.

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the time and expense to be spent in argument is question-begging, and may receiving it.15 (b) It may be rejected be vicious in its consequences. because, although it has substantial Many cases give as a reason for the probative value, it also has such a ten- rule excluding hearsay the often-quoted dency to prejudice or to confuse that its statement of Chief Justice Marshall: use would probably do more harm than "'Hearsay' evidence is in its own good.'( (Some might extend this prin- nature inadmissible. That this species of testimony supposes some better tes- ciple to exclude possibly misleading timony which might be adduced in the evidence which the trier of fact is particular case, is not the sole ground deemed incapable of evaluating prop- of its exclusion. Its inherent weakness, its incompetency to satisfy the mind of erly, lest it be given undue weight.) the existence of the fact, and the frauds (c) It may be excluded because it may which might be practiced under its be false, and because the opposite party cover, combine to support the rule that could not be prepared to meet and re- hearsay evidence is totally inadmis- sible." 21 but it. 17 (d) Evidence may be ex- In part this dictum supports the "bet- cluded because it is inferior to other ter evidence" theory, considered below. evidence which could have been pro- But in part it suggests as a reason for duced, so that the non-production of its exclusion that the probative force the better creates a suspicion concern- of hearsay is too slight to justify giv- ing the worse.' ing it time at trial. Turning at long last to the subject of At an early date the "inherent weak- hearsay, it can be and indeed has been ness" of hearsay was regarded as argued that hearsay, or most hearsay, springing primarily from the lack of 9 is excluded because it is irrelevant.' an oath.22 When the modern witness Little thought is required to see that if had but recently appeared upon the irrelevant means having no tendency scene of litigation, when the trial by to increase the apparent probability of compurgation of an earlier day was the proposition sought to be proved, still, in theory at least, part of the legal hearsay is neither relevant nor irrele- system and when the spiritual sanc- vant, but, like any other species of evi- tion may have been more effective than dence, sometimes relevant and some- today it was reasonable to attach con- times irrelevant. The point has been siderable importance to the ceremony established so long that it need not be of swearing. As a consequence, it be- labored.2 0 Irrelevance, used as a basis came settled first that hearsay, stand- for the general exclusion of hearsay, ing alone, was not sufficient evidence must mean "legal irrelevance." This of a material fact and later that it 15 As in the collateral issue rule, where rightly '9 Stephen, op. cit. supra, note 12. applied. 2o Starkie on Evidence (3. & W. T. Clarke, 16 An example is the rule excluding proof of 1824) §XxvI. a criminal defendant's prior conviction of an infamous crime. 23 Mima Queen and Child v. Hepburn, 11 U. S. 17 The rule excluding proof of bad character 290, 295 (7 Cranch, 1813). by evidence of particular wicked acts, not 22 Phipson on Evidence (Sweet & Maxwell, pleaded, illustrates this principle. Limited, 1930) 217, and cases cited; See also 18 The familiar best evidence rule, requiring Gilbert on Evidence (2d. Ed., London, 1760) 152 documentary originals where available. for a contemporary view.

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2 should not be received at all. 3 Today, day the law takes a more optimistic and indeed for at least a century,2 the view of human nature. Few, it is sub- importance of the oath has suffered a mitted, really believe that all men are sharp decline in common estimate; in liars. In most cases people tell the truth its place the lack of cross-examination as they see it, and although their per- is cited as the basis for hearsay exclu- ception, understanding and recollection sion. This shift in emphasis appeared may be subject to error, this possibil- in judicial opinion early in the eigh- ity of error is not so high as to bring teenth century;25 today the most au- the average of truth in all ordinary thoritative writer declares the lack of out-of-court statements of fact down as cross-examination to be the essential low as or even very nearly as low as defect in hearsay testimony. Now it fifty per cent. If this be true, general may be true that unsworn declarations exclusion of hearsay cannot be justified are less reliable than testimony given on its lack of substantial evidentiary under oath. And it may be true that value. cross-examination is an extremely use- Starkie, a most discriminating writer, ful check on faulty memory or wilful discussed this difficulty without being deceit. Neither of these propositions able to suggest a satisfactory explana- justifies the general exclusion of hear- tion for the generally accepted rules. say. To justify general exclusion on After pointing out the weakness of the ground of "inherent weakness" one hearsay as compared with testimony must say that all hearsay is so utterly based upon the speaker's own knowl- unreliable that in no case does its value edge, he continued, justify the time and expense attendant "but, it may be asked, since evidence on its use. of the declaration of a person whose veracity is unimpeached would have This raises the question of the basic some tendency to convince the mind, testimonial hypothesis. Do we believe, where the fact disputed is otherwise with the hasty David, that all men are doubtful, why is not such evidence at liars? Then it is reasonable to exclude least admissible, leaving its effect to be considered by the proper tribunal. To all men's testimony unless it be given take a strong case: suppose that A., a in view of the trier of fact, under the person of undoubted credit, had asserted danger of criminal penalties and in the that he saw B. inflict a mortal wound upon C., a party who knew A. to be a fear of hell-fire, and subject to the man of the strictest veracity, and who searching test of cross-examination. In- was also convinced that he had gravely deed, the depravity of man was once so made that assertion, would necessarily fully accepted that even under these attach some degree of credit to it, and its effect might be to turn the scale, and conditions interested parties were to create in his mind a conviction of the spared the temptation to perjury. To- truth of the fact of which he might

2s Phipson on Evidence, 217, and cases cited; exclusion of hearsay is apparently for the first Wigmor, Evidence, §1364, tracing the develop- time put, not alone upon the old ground that ment at length. the original speaker was not upon oath, but also 24 See Bentham's attack on the oath as a guar- upon the more modem one, that the other side anty of veracity in his Rationale of Judicial had no opportunity for cross-examination (2 Evidence, 1827. Hawkins, P1. Cr. 596-7)." See also Wigmore, 25 Phipson gives 1716 as the year "when the Evidence §1364.

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otherwise have doubted. In such a case their minds would be confused and em- therefore, if A. be dead, and B. be barrassed by a mass of conflicting tes- charged with the death of C., why timony; and they would be liable to should not the declaration of A. be be prejudiced and biassed by the char- admitted in evidence? It may be an- acter of the person from whom the swered, that the law must proceed by evidence was derived. In addition to general and by certain rules. If, there- this, since everything would depend fore, the mere declaration of A. in this upon the character of the party who case were to be admitted, it would made the assertion, and the means of follow that the declaration of every knowledge which he possessed, the other person, with respect to every evidence, if admitted, would require other disputed fact, would also be ad- support from proof of the character and missible. The consequence would be to respectability of the asserting party; let in numberless wanton, careless, and and every question might branch out unfounded assertions, unworthy of the into an indefinite number of collateral least regard. The principle would issues. extend to all the loose, idle, and con- Upon these grounds it is that the tradictory conversation that had taken mere recital of a fact, that is, the mere place upon the subject in dispute, to oral assertion, or written entry by an individual, that a particular fact is true, none of which any degree of credit 26 could safely be attached; and, above cannot be received in evidence." all, the evidence would be wholly un- Thus Starkie raises the problem, but supported by those tests of truth which the law in general requires; it would the keystone in his answer is faulty. not rest upon the obligation of an oath; "If, therefore, the mere declaration of there would be no certainty, either as A in this case were to be admitted, it to the means of knowledge, or as to the faithful transmission by the asserting would follow, that the declaration of party of that which he knew. Another every other person, with respect to reason for the rejection of such evi- every other disputed fact, would also dence arises from the nature and con- be admissible." Why? Because "the stitution of the tribunal whose minds are to be convinced. If it were to be law must proceed by general and by assumed, that one who had long enured certain rules." Such a contention is to judicial habits might be able to assign contrary to elementary observation. to such evidence just so much, and no Starkie himself, after greater credit than it deserved, yet, basing the gen- upon the minds of a jury unskilled in eral exclusion of hearsay on the ground the nature of judicial proofs, evidence that much hearsay is unworthy of the of this kind would frequently make an least regard and that therefore all hear- erroneous impression. Being accus- tomed, in the common concerns of life, say must be excluded so that the law to act upon hearsay and report, they may proceed by general and by certain would naturally be inclined to give such rules, goes on for some thirty pages to credit when acting judicially; they discuss exceptions to the rule and spe- would be unable to reduce such evi- dence to its proper standard, when cial situations in which it is not applic- placed in competition with more certain able. In Wigmore's more careful and and satisfactory evidence; they would, exhaustive treatise the full flower of in consequence of their previous habits, the generality and be apt to forget how little reliance ought certainty of the nine- to be placed upon evidence which may teenth century rules of evidence stands so easily and securely be fabricated; revealed: a principle of hearsay exclu-

26 Starkie on Evidence 44-46.

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sion uncertain in scope and subject to it should be excluded for the same rea- fourteen arbitrary and ill-defined ex- son and under the same circumstances ceptions, seldom well understood by as other testimony. For example, if it advocate or judge.27 If this is what is objectionable to prove the bad char- courts really do, the judicial rules of acter of a criminal defendant, such evi- exclusion can hardly be sustained by dence should be excluded whether it the principle of certainty and general- is in the hearsay form of general bad ity invoked by Starkie. Nor does the reputation or in the form of prior con- principle fare better when considered victions for infamous crimes. as part of an ideal system. The most The contention that hearsay - or such a principle can require is that some hearsay - cannot properly be similar cases be decided alike, by evaluated by a common law jury seems known and inflexible rules; it cannot highly questionable to this writer. give the criteria of similarity in cases. Starkie suggests that jurors, because It would be as reasonable to insist that accustomed to relying on hearsay in generality and certainty require all kill- the common concerns of life, would be ings to be punished as murder or all unable to reduce such evidence to its promises to be enforced as contracts proper standard when placed in com- as on this basis to require that all hear- petition with more certain and satisfac- say be excluded as untrustworthy. If tory evidence. It seems more likely some hearsay has, and other hearsay that this comparative evaluation of lacks adequate reliability, the question hearsay as against direct evidence is should be, "What criteria can we use one of the things all persons do in their to divide the good from the bad?" common concerns. The weakness of Once the possibility of rejecting some rumor, the possibility of error in repe- offers of hearsay and accepting others tition and the likelihood that persons is recognized, Starkie's arguments oper- subjected to no effective check will lie ate at most to exclude some hearsay on in their own interest are matters of the basis of the second possible ground common observation. Granting that suggested above-that some hearsay is judges hear more evidence and parti- too prejudicial, or too confusing, or too cipate in the decision of more doubtful difficult to evaluate to justify its use. questions of fact than do members of As for any strictly prejudicial effect, the general public, all persons do it hearsay appears to stand upon the same more or less, and it is in no sense pecu- 2 basis as any other evidence. It may or liarly a judicial technique. may not be unduly prejudicial. If it is, But if one were to grant that the 27 A rule more general and certain than the media: to wit, in every case in which make- present hearsay exceptions has been suggested, shift evidence transmitted through no more which would accommodate Mr. Starkie's "strong than one medium would be received; always case." See Morgan et al, the Law of Evidence, under the same conditions and restrictions.... c. IV. The main and most striking reason is, that, 28 Bentham's remarks on this point in con- by the alleged increase in the number of the nection with the use of "second degree hearsay" media, no new facility is given to fraud. On are still appropriate: the contrary, it can never answer the pur- "transmitted evidence purporting to have poses of fraud, it would be unfavourable to passed through more media than one, may still the purposes of fraud, falsely, or even truly, be received, whatsoever be the number of such to represent any such increase. That assur-

HeinOnline -- 34 Ill. L. Rev. 794 1939-1940 THE ROLE OF HEARSAY common law jury should not be trusted fabricated or based upon distortion of with any but the most reliable hearsay an actual occurrence. On the other -such as the statements of an identi- hand, while there may be some prac- fied declarant having no motive to de- tical difficulty in defending against a ceive-the point is not strictly relevant case based in part or wholly on the re- to the present subject. The ground for peated statements of persons not avail- exclusion, the supposed incapacity of able for cross-examination, this is a the ignorant and unskilled juror to deal difficulty of another order. The issues with testimony of varying probative to be tried are not concealed as a result value, should have no application to of the admission of such testimony, and the commissioner or trial examiner, a unless a case or defense has been fab- professional hearer of disputes like the ricated with extraordinary skill other common law judge and unlike the com- evidence will be available to rebut un- mon law judge a specialist in a partic- sound conclusions, whether based upon ular field. We cannot deduce from the intentional falsity or upon error or in- traditional stupidity of the juror one completeness, arising from the repeti- of the "essential rules of evidence" to tion in court of statements not sub- bind an expert fact finding body. jected to cross-examination. 29 While The third possible ground suggested the point that hearsay is always diffi- for the exclusion of relevant evidence cult to meet is perhaps the strongest was that some evidence is so difficult to one which can be made in support of meet and rebut that its use is unfair. general exclusion, in the writer's opin- A specific illustration, perhaps the only ion it falls a trifle short of carrying con- one commonly encountered in practice, viction. is the rule excluding proof of bad char- Of the possible grounds originally acter by evidence of specific bad acts. enumerated for the exclusion of evi- Were the rule otherwise a damaging dence there remains only the principle collateral issue could be raised at trial, of the "best evidence." Although to- which the pleadings would in no way day its operation is virtually restricted have suggested. It would be almost im- to a preference for the use of the orig- possible to prepare in advance to repel inal in the proof of the contents of a such an attack, whether it was wholly document, it was once treated as a rule

ance of correctness cannot but be diminished tion the danger of incorrectness may be thus in proportion to the number of media the increased, the danger of deception does not evidence has passed through, is a truth, the increase with it: for, whatsoever be the dan- force of which cannot but be felt by every ger of incorrectness, it is apparent to every mind to which it is presented. But a man eye, upon the very face of the evidence: actuated by fraud, intending deception, to be apparent to all eyes alike, and in no danger brought about by mendacity, will of course at all of being set down at any value below give to the information the most plausible, its real value.... 4 Bentham, op. cit. supra, the most trustworthy, form, of which it is note 1, at c. X. And see to the same effect susceptible: he will never spontaneously and the letter of a Boston lawyer quoted in unnecessarily multiply causes of untrust- Morgan, op. cit. supra, note 7, at 44. worthiness and distrust in regard to it. The danger of fraud (i.e. of deception by fraud) 29 It should be noted that today hearsay is not being increased by the number of sup- sometimes admitted because there can be no posed media; there remains the danger of other proof of the fact in issue, thus aggravat- incorrectness, i.e. of deception by incorrect- ing the danger that this evidence may be false ness. But in this case, in whatsoever propor- and proof against effective rebuttal.

HeinOnline -- 34 Ill. L. Rev. 795 1939-1940 ILLINOIS LAW REVIEW OF NORTHWESTERN UNIVERSITY [Vol. 34 of great importance-one of the first present form the best evidence notion principles of evidence. Thus Sir Geof- still appeared as a partial or complete frey Gilbert's treatise, first published justification. Thus Starkie, while treat- in 1754, states: ing hearsay as a distinct head, also gave "The first therefore and most signal as an illustration of the best evidence Rule, in Relation to Evidence, is this, rule that that a man must have the utmost "no declaration or entry by any person Evidence, the Nature of the Fact is can be given in evidence where the capable of: For the Design of the Law party who made such declaration or is to come to rigid Demonstration in entry can be produced and examined as 2 Matters of Right, and there can be no a witness.' Demonstration of a Fact without the best Evidence that the Nature of the And Greenleaf, the standard nineteenth Thing is capable of; less Evidence doth century authority, quotes Chief Justice create but Opinion and Surmise, and Marshall 3 in giving as one basis for does not leave a Man the entire Satis- faction, that arises from Demonstration; the rule that for if it be plainly seen in the Nature "this species of testimony supposes of the Transaction, that there is some something better, which might be ad- more Evidence that doth not appear, the duced in the principal case... very not producing it is a Presumption, The difficulty with this treatment of that it would have detected something more than appears already, and there- hearsay as received and excluded in fore the Mind does not acquiesce in any courts of common law is obvious. In thing lower than the utmost Evidence other situations secondary evidence is of." 30 the Fact is capable regularly admitted where the "best This best evidence principle was at evidence" is unavailable. Yet the law the very least one of the basic elements does not freely permit proof of the dec- in the early development of the rule of laration even of deceased persons, to hearsay exclusion.3 ' Even after the rule say nothing of persons whose testimony had congealed into approximately its is unavailable for less conclusive rea- 30 The Law of Evidence, by a late Learned Mr. Nares. I object against that, as legal Judge (Gilbert, C. B.) (London). evidence. 31"The true historical nature of this rule Mr. Davy. I am not asking anything Mrs. (of hearsay exclusion) is hinted by the remark Wells said since 1752, but what she said of an English court, two centuries ago and before, when it was impossible for her to over, when they checked the attempt of a know of this affair, when it could serve no woman to testify what another woman had told purpose to speak falsely; that is evidence. her. 'The Court' it was quietly remarked, 'are Mr. Nares. There is one plain rule as to of the opinion that it will be proper for Wells the evidence of hearsay; that is, that when to give her own evidence'." you can have that very person that proves Thayer, op. cit. supra, note 3, at 518. this very fact she is the person to be called; The full passage reads as follows: this is not evidence at all. "Do you know whether Mrs. Wells keeps Court. The Court are of opinion that it any cattle?-She keeps a horse and a hog. will be proper for Wells to give her own How long have you known her?-I have evidence...." known her almost forty years; ever since I Trial of Elizabeth Canning, 19 How. St. Tr. can remember. 283, 406 (1754). This form of ruling excluding With what did she use to feed her horse? hearsay was common. See, e.g., Pickering v. -I have seen them fetch grains; and I know Barkley, Vin. Abr. "Evidence" p. 6, 1, vol. xll, she bought hay, for I saw it brought in, and 175 (1673); Ireland's Trial, 7 How. St. Tr. 79, by the badness of the weather it was spoiled. 105 (1678); Busby's Trial, 8 How. St. Tr. 525, When was it brought it?-In the seasonable 545 (1681). time of hay-making, before last Christmas s2Starkie on Evidence, 390. was twelve-month. 33 In Mma Queen v. Hepburn, 11 U. S. 290, Where did she put it?-As she said then, 295 (7 Cranch 1813). she put it into the room called the shop. 34 Greenleaf, Evidence §98.

HeinOnline -- 34 Ill. L. Rev. 796 1939-1940 1940] THE ROLE OF HEARSAY sons. As early as the seventeenth cen- tinct, forms. First, as Starkie suggests, tury declarations of persons since de- there is something quite suspicious ceased were generally excluded 5 about one who offers a purported copy Greenleaf attempted explanation by of a document in evidence when the the statement: original is available to him; one may "Hearsay evidence is uniformly held fairly wonder whether the copy is a incompetent to establish any specific true and perfect one. Similarly, one fact, which, in its nature, is susceptible of being proved by witnesses who can cannot but wonder, no cause being speak from their own knowledge." 36 stated, whether a litigant who prefers With all respect to a prolific and in- quoting a material witness to calling fluential, if none too thoughtful, writer, him does not do so out of desire to this explanation fails to explain. The avoid full disclosure. Or, to present proper criterion, the criterion applied substantially the same idea in a slightly in all other applications of the best evi- different form and without pointing the dence rule, is not the best evidence finger of accusation, it may be said that which, in the nature of the fact to be every judicial body worthy of the name proved, could ordinarily be offered to is interested in reaching a sound deci- prove it. It is the best evidence which, sion based on understanding of the ac- 38 under the circumstances of the case at tual facts in issue. Having this point of bar, this particular litigant could be ex- view, a tribunal would naturally insist pected to present. If the "best evi- on being allowed to hear and to see the dence" theory for the exclusion of hear- most cogent and reliable evidence avail- say is accepted, and it is submitted that able. There is nothing in either view in cases before expert fact finding to support the exclusion of hearsay ex- bodies there is no other satisfactory cept when no satisfactory reason ap- theory,37 some hearsay rule may be jus- pears for use of the repeated declara- tified as one of the "essential rules of tion instead of the personally presented evidence," but decidedly not the pres- testimony of the declarant. ently existing rule. Application of this principle would result in admission of hearsay more HI. freely than under the unanimous or It remains only to consider the extent even under the majority recommenda- to which the exclusion of hearsay is jus- tion of the committee for the Common- tified by the principle here advocated, wealth Fund. 30 Any ground of unavail- and in this connection a brief recapitu- ability would suffice, and even the good lation of the principle itself may be jus- faith of the declarant would go only to tified. It may be cast in two somewhat probative value and not to admissibil- different, but by no means wholly dis- ity. This last point is particularly im- 35 See cases collected in Wigmore, Evidence, gation is more than a stately and traditional §1364. game played to induce a desirable frame of 36 Greenleaf, Evidence, §98. (Italics supplied.) mind in the eventually unsuccessful suitor. 3 9 Morgan et al, op. cit. supra, note 7, at 37 The writer wishes here to reiterate that c. IV. It should of course be noted that the in his personal opinion the conclusions of this recommendations of Professor Morgan's Com- paper are equally valid for jury trials. mittee were designed at least to include, and 38 This approach of course assumes that liti- perhaps primarily for, jury trials.

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portant in cases in which it might be at the memorandum his recollection of helpful to use statements of unidenti- the past event is refreshed. By analogy fied persons; for example, there might to the use of copies to aid in reading be situations not covered by the com- mutilated or partly obliterated docu- mon law precedents in which commu- ments,J 2 such memoranda or records nity reputation would be of aid. Here should be directly available as evidence specific findings of good faith could after full examination of the man who hardly be used. made them discloses that his recollec- Another situation in which the "best tion has become incomplete.41 evidence" principle, by analogy, would Of course, it is not urged herein that lead to the use of evidence inadmissible hearsay should always be admitted. both at common law and under the rec- Where it is of virtually no value and ommendations of the Commonwealth merely consumes time, where it raises Fund Committee was recently sug- unduly long and difficult collateral is- gested by Chairman Madden of the sues, where it is unfair because highly N.L.R.B.4 0 It may often happen that prejudicial or because it is impossible definite proof or disproof of some fact to meet it by other evidence, in such in issue is in the control of one party, cases it should be excluded, as other but the burden at least of coming for- evidence should be excluded in like ward with evidence is upon the other. cases. But it should not be excluded In such a case the party having the merely because it is hearsay except burden should be allowed the most free where the party offering it could by use of hearsay. This approach would reasonable effort and without depend- give a shortcut past many difficult prob- ing on sources controlled by the oppo- lems of admissions by agents, particu- site party have offered instead the de- larly in suits involving large corpora- clarant as a witness in his proper per- 4 1 tions. son. Still another useful result of treat- ing hearsay as a special case of second- IV. ary evidence would be the increased The foregoing discussion has dealt use of what is known as "past recollec- exclusively with admissibility. The tion recorded." Under existing law, rec- problem of the minimum quantum of ords of past events made even by pres- evidence necessary to sustain a burden ently available witnesses can be used 'of proof on each ultimate issue has been only to a limited extent unless the wit- avoided. In the opinion of the writer ness be willing to swear that on looking this is a problem for the trier of fact 4 40 Proceedings of the Thirty-Sixth Annual available, of course the memorandum could be Meeting of the Association of American Law used. Schools (1939) 178. 44 In jury cases, the problem in the first instance is for the judge to determine whether 41 In addition, this analogy may aid in the reasonable men could be convinced by the evi- general treatment of admissions under the dence, and later for the jury to deter'mine hearsay rule. whether it is convinced. In other than jury 42Semble, Den ex dem Weatherhead v. trials this initial division of function does not Baskerville, 52 U. S. 329 (11 How. 1850). occur. However, in all cases the question arises on appeal, if not before, whether a finding of 43 Where the maker of the record was un- fact is supported by evidence.

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after the record has been closed. Any prima facie case. Ought she to have attempt to anticipate this question of been denied the privilege of having the jury pass upon the case merely because adequate probative force in ruling on of the introduction of the hearsay tes- the admissibility of an offer of evidence timony above pointed out? We think (except in determining whether the not. Such testimony, save as to well value of the proffered evidence justi- defined exceptions, is inadmissible for any purpose, because it is wholly with- fies the time to be consumed in hear- out probative value. The fact that it is ing it) can only lead to confusion and admitted can not give it any such value. often to wrong decision. In other words, testimony of this char- acter which does not come within any On the other hand, once the question of the exceptions just referred to is, in of admissibility has been passed upon legal contemplation, wholly worthless, it should be dismissed from considera- and has been so regarded and treated through all the ages of the English law. tion, leaving no echo to confuse the While a party who permits hearsay tes- subsequent evaluation of probative timony to be introduced without objec- force. To put it mildly, there is not a tion, or who has himself introduced perfect correlation between the com- such testimony, will not be heard to complain of the fact that it went to the mon law exclusionary rules and the jury, and must suffer whatever disad- probative value of evidence, and an at- vantage may come of their giving it tempt to weigh evidence in terms of its sufficient weight to turn the scale legal value, or any similar concept, can against him when there is enough legal testimony before them to support a only confuse. To take a particular ex- finding in favor of his adversary, it will ample, in Eastlick v. Southern Railway not do to say that such a finding, rest- Company45 a widow brought her action ing upon hearsay testimony alone, can lawfully stand merely because the against the railway for the negligent losing party did not object to such tes- killing of her husband. Plaintiff's wit- timony when offered by his adversary, nesses, on cross-examination, recited or himself introduced the same. No what the defendant's locomotive engi- plaintiff should ever, under any circum- stances, lose his case when there is neer said immediately after the wreck. evidence to warrant a recovery by him, No objection was made to this evidence, and the verdict or judgment in favor and if the recitals were true the de- of the opposite party has nothing upon fendant was guilty of no negligence. which to rest but inadmissible hearsay testimony." The trial court non-suited plaintiff, but It should especially be noted that the was reversed, the Georgia Supreme court does not say that all hearsay not Court saying in part: covered by one of the "well-defined" "There can be no question that the exceptions is really worthless, but that plaintiff, but for the testimony with respect to these declarations of the such testimony is in legal contemplation engineer, would have been entitled to wholly worthless. This apparently go before the jury; for the evidence as means that even after evidence has to the cause of her husband's death, in been admitted without objection connection with the legal presumption the of negligence against the company, was court must pass upon its worth in terms sufficient to make out in her behalf a of the rule of law which would have

45116 Ga. 48, 42 S. E. 499 (1902).

HeinOnline -- 34 Ill. L. Rev. 799 1939-1940 800 ILLINOIS LAW REVIEW OF NORTHWESTERN UNIVERSITY [Vol. 34 applied if objection had been made probative force of any evidence, but it rather than in terms of the actual ap- does declare that the aim and end of the investigation by the commission parent value of the particular offer in shall be "to ascertain the substantial view of the circumstances of the par- rights of the parties." No matter what ticular case. The court is applying an latitude the commission may give to its irrebuttable presumption of the coin- inquiry, it must result in a determina- tion of the substantial rights of the cidence between admissibility at com- parties. Otherwise the statute becomes mon law and probative value. grossly unjust and a means of oppres- Such a decision is bad enough on ap- sion. peal from common law trial. In the "The act may be taken to mean that much criticized case of Matter of Car- while the commission's inquiry is not 0 limited by the common law or statutory roll v. Knickerbocker Ice Company rules of evidence or by technical or the New York Court of Appeals took formal rules of procedure, and it may in the same stand on an appeal from the its discretion accept any evidence that workmen's compensation commission, is offered; still in the end there must be a residuum of legal evidence to sup- which by statute was "not bound by port the claim before an award can be common law or statutory rules of evi- made. As was said by Justice Wood- dence" and might "make such investi- ward in his able dissenting opinion at the Appellate Division: "There must be gation or inquiry or conduct such hear- in the record some evidence of a sound, ing in such manner as to ascertain the competent and recognizedy probative substantial rights of the parties." The character to sustain the findings and award appealed from was on one essen- award made, else 'the findings and award must in fairness be set aside by tial point sustained only by recitals (the) court." (Italics supplied.) made by the injured workman immedi- Such a decision goes little beyond ately before his death. After reciting the rule generally applied to non-jury the controlling statute the majority 47 trials, that on a record containing both opinion for the court said: competent and incompetent testimony, "This section has plainly changed the rule of evidence in all cases affected by the decision will be presumed to the act. It gives the workmen's com- have been based on the competent. pensation commission free rein in mak- Here as in the Georgia case the court, ing its investigations and in conducting, its hearings and authorizes it to receive while ruling that the mere admission and consider not only hearsay testi- of evidence incompetent at common mony, but any kind of evidence that law constitutes no basis for reversal, may throw light on a claim pending still assumed the common law rules of before it. The award of the commission cannot be overturned on account of any admissibility to be conclusive determi- alleged error in receiving evidence. nants of the probative value of the "This is all true, but, as I read it, evidence received. Slight familiarity section 68 as applied to this case does with the decisions dealing with "dying not make the hearsay testimony offered declarations," with "statements of phys- by the claimant sufficient ground to uphold the award which the commission cal condition" and with "spontaneous made. That section does not declare the exclamations" is sufficient for appreci-

46 218 N. Y. 435, 113 N. E. 507 (1916). 47 Id., at 440.

HeinOnline -- 34 Ill. L. Rev. 800 1939-1940 THE ROLE OF HEARSAY ation of the naivete of this assumption but recently attained the importance in in the very case presented. practical affairs which they hold today. Although the rule of the Knicker- It still remains for them to prove to bocker case has been most effectively many observers their utility and fair- criticized, 48 a disturbing tendency to ness. And if they must eschew a vio- give it at least lip service may be ob- lent break with the judicial tradition served even among those administrators to avoid the charge of injustice, they who might be expected to oppose it must also show enough freedom from most strongly. Thus Chairman Madden arbitrary rules inherited from the past of the Labor Board in a recent ad- to substantiate their claims of effi- dress49 has said, "It will readily be ac- ciency. One way to the latter end will knowledged that most hearsay testi- lie in a careful evaluation of existing mony has little or no probative value," rules of evidence to determine their going on to justify its admission chiefly underlying policy (where one exists), to develop leads toward competent evi- the extent to which that policy is ap- may be dence and suggesting that it plicable to the administrative tech- of independent reliance in but worthy nique, and above all, the extent to one somewhat unusual situation. While which that policy is in fact carried out Chairman Madden's remarks are easily by the formal rules of the litigeous understandable in light of criticisms game as it exists today. For only by a which have been directed at the Labor independence Board, it may be that in the long run judicious declaration of a more aggressive position might prove from precedent can these quasi- wiser. Administrative tribunals have tribunals justify their existence.

8 4 Wigmore, Evidence, §4 b (B) 5. 49 Supra, note 40.

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