Role of Hearsay in a Rational Scheme of Evidence
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University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1940 Role of Hearsay in a Rational Scheme of Evidence George F. James Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons 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] HeinOnline -- 34 Ill. L. Rev. 788 1939-1940 1940] THE ROLE OF HEARSAY 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.) HeinOnline -- 34 Ill. L. Rev. 789 1939-1940 ILLINOIS LAW REVIEW OF NORTHWESTERN UNIVERSITY [Vol. 34 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.