Where Does Hearsay Come From?
Everyone knows what a curve is, until he has studied enough mathematics to become confused through the countless number of possible exceptions.
- Felix Klein
As we’ve written before, television and movies have spent decades educating potential jurors about what happens at trial. Many of the details are exaggerated and dramatized, but almost no one serving on a jury is going to be confused by what would otherwise be a very unusual social event – sitting in a room beside strangers listening to other strangers be aggressively questioned one at a time while a man or woman in a black robe tells folks what to do. In comparison, there are other areas of legal work that even lawyers would find alien or strange – stuff like IP lawyers racing each other through the FDA parking lot to be the first to engage in “artificial patent infringement” and obtain temporary “generic drug exclusivity” under the Hatch Waxman Act.
In addition to the basic logistics of trial, television and movies have also given folks exposure to handful of legal principles. Near the top of that list is hearsay, the notion that a witness should not testify about what somebody else told them. In some sense the broad diffusion of this rule is proper, as hearsay could rightly be called the central theme of American evidence law. Look at any list of evidentiary rules or any evidence textbook and at least a third of entries are likely to be devoted to hearsay and its innumerable exceptions. Analytically, I like to say that all evidence rules can be reduced to variations on “foundation,” “prejudice,” and “privilege.” But as a practical reality, most evidentiary disputes actually boil down to 1) “is something hearsay?” and 2) “should it be admitted anyway?”
But what is hearsay? And how did it come to play such an oversized role in how we, as a society, adjudicate virtually all legal disputes?
Fed. R. Evid. 801(c) defines hearsay in an almost suspiciously simple fashion:
Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
And Rule 802 contains an even more succinct prohibition on hearsay:
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.
But immediately following these two sentences are five more lengthy rules governing what evidence is deemed “not hearsay” even though it technically fits into the definition and what evidence is “is hearsay” but nevertheless should be admitted pursuant to an exceedingly unusual grab-bag of exceptions, most of them drawn from “history” rather than any kind of overarching analytical framework.
How did we get here? In the earliest days of jury trials, the rule against hearsay is absent and realistically would have made little sense. As Wigmore notes, juries of the assize in the 1300s and 1400s were not expected to rely primarily on evidence presented to them by formal, sworn witnesses, but rather “to give a verdict based on the communications of trustworthy neighbors.” [1] Pollock and Maitland go even further, claiming that, at the time, “verdicts that are given must be founded upon hearsay and floating tradition” as “it is the duty of the jurors to make reasonable inquiries about the facts of which they will have to speak when they come before the court. They must collect testimony; they must weigh it and state the net result in a verdict.” [2]
This process changes gradually over the next two centuries, as juries in the 1500s and 1600s begin to focus less on their personal knowledge from the community and more on what is presented to them, in the form of documents and testimony. [3] As this happens, there is increasing focus on what evidence is “sufficient” to render a verdict. There are even efforts to import doctrines from continental law and canon law where these rules are very explicit – i.e. you literally must have X witnesses in order to convict a defendant of Y. [4] While most of those efforts were unsuccessful, you can still see traces of them in the “accomplice rule,” currently followed in New York, which states that a defendant cannot be convicted solely on the testimony of a single co-conspirator. [5] No matter how much the judge or jury might believe the accomplice or lack reasonable doubt, one witness is simply not “evidence” of that crime.
In this we see what Professor Langbein calls the “older meaning of evidence,” an understanding of the word that is quite different than the way it is used today. [6] Older evidence is binary – you either objectively have it (and prevail) or you objectively do not (and you lose). It is not something to be considered and evaluated and wrestled with in one’s mind. It is a box to be checked based on clear mathematical rules.
This is perhaps best understood when placing evidence in the context of older traditions, such as oath swearing, ordeal, or battle, all techniques that produce definitive yes or no answers. If you were sued and told that you must wage your law by compurgation, you prevailed if you were able to find twelve men to swear with you and lost if you did not. The court made sure that your compurgators swore the correct oath but was not studying their faces or mannerisms to evaluate their credibility. The justice of the procedure is in the knowable rule of decision and whatever divine blessing (or punishment) might be accorded to one who violates it.
In that context, as trials begin to rely more on sworn witness rather than juror inquiry, we see the first traces of a rule against hearsay. It does not start as a rule of exclusion. Rather it is the notion, expressed by counsel or judges, that a hearsay statement is “no evidence.” [7] While this certainly expresses some opinion on whether hearsay is reliable, it is more akin to the proper counting of witnesses. If you need four witnesses to prevail, it is no good to bring one and have that person claim that another four “told him the same thing.” A witness under oath is evidence. A secondhand account is not.
Infrequent objections to hearsay become more common through the later 1600s. [8] But even through the early 1700s we see enormous number of cases in which blatant hearsay is accepted and relied upon by jurors in reaching their verdicts. [9] This was particularly acute on the civil side of the practice where hearsay continued to be largely accepted without question even into the 1780s. [10] This was true both in England and in colonial courts such as New York.[11]
So, what changed? Like all good things in society, the formalization of rules against hearsay owes much to the increased presence of lawyers. As we’ve written before, following infamous abuses in the 1670s, parliament and the courts began to relax the prior prohibition on attorneys appearing at criminal trials, first for treason in 1696 and then gradually for other felonies as well. [12] By last decades of the 18th century, attorneys began to appear on behalf of criminal defendants in great numbers. [13] And as attorneys began to fight regularly over evidence, what had originally been vague concepts batted about by judges rapidly crystalized into more formal rules of exclusion. Our good friend Mr. Garrow even played a part in this, as illustrated by an exchange from a theft trial in 1783: [14]
Mr. Isaacs: On the 21st of October a person came to Mr. Blackborough's office for a search warrant to go to see for some property that had been stole from him, I went where I was directed to Mr. Dunn's in Turn-mill-street, I found nothing there that I went after, but on looking in a closet, concealed, I saw a quantity of these locks, I asked Mrs. Dunn whose they were.
Mr. Garrow: You must not tell us what she said.
Prosecution: He must tell his story.
Mr. Garrow. Then I will apply to the Court whether this man is to tell us what Mrs. Dunn and Mrs. Brett said.
Court: No, Certainly not.
In addition to more regular exclusion of evidence, the presence of counsel also began to crystalize the theoretical underpinnings of the hearsay rule. Like many things in the law (e.g. punishing criminals) people started doing the thing first and then only later started sat down to figure out the reasons why they had been doing it all along.
The earliest justification for the prohibition on hearsay is the lack of an oath. For example, in a 1732 prosecution, a prisoner charged with robbery tried to claim that the prosecutor bringing the case was a drunk and a liar through hearsay evidence only to have the court shut the matter down: [15]
Prisoner: I and two more were drinking at the Cow's Face when the Prosecutrix came in Drunk, and would have pawn'd a pair of Stays for some Liquor, for she said she had no Money (tho' now she swears that I robb'd her of 2 s.) But neither Mrs. Fowler, who keeps the House, nor her Man, would let her have any more.
Richard Mason: The Man at the Cow's Face told me the same thing.
Abraham Mason: And he told me.
Anthony Dennison: And me too.
The Constable: And the same Man told me, that the Woman pull'd out 2 s. that the Prisoner and his two Companions were three notorious Rogues, and that he would draw them no more drink, but turn'd 'em out of Doors, for he would not have a Disturbance in his House.
The Court: What was said by the Man or the Woman at the Cow's Face is no Evidence on either side, except they were here to swear it themselves.
The basic theory here is that witnesses who appear in court must swear an oath to tell the truth. Under the older meaning of evidence this might be enough. But even as the modern conception took root, it was believed that the oath was a meaningful enhancement to their credibility. We’ve written before about why oaths have historically been taken quite seriously and people believed (not irrationally) that witnesses would be hesitant to lie under oath. Since a hearsay statement is unsworn, it cannot be the given the same credence as sworn testimony.
The second justification for excluding hearsay, embraced by Wigmore in his famous treatise, is that a hearsay statement lacks cross examination. This justification appears much later than the first, only at the very end of the 18th and beginning of the 19th century, but ultimately becomes the more influential and commonly-repeated justification. [16] As Wigmore writes:
The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience. Not even the abuses and the puerilities which are so often found associated with cross-examination have availed to overbalance its value. It may be that in more than one sense it takes the place in our system which torture occupied in the mediaeval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth. [17]
There is an almost religious fervor in Wigmore’s advocacy of cross examination, and it bears scrutiny. Because when you examine modes of legal proof, whether ancient or modern, you find similar devotional attitudes. The efficacy of decisional rules, whether juries or hot iron is treated as an article of faith. Why is that?
I would submit that this motif reflects a deeper human truth, something that has not changed in our history. People lie and they are often believed. And knowing that, people have struggled for centuries to find a way to resolve disputes between people who each claim to be telling the truth. People know that you can’t just listen to two strangers speak and figure it out, not reliably. What humans want is some surefire thing that will yield a yes or no answer about who should prevail. And humans want it so badly that where it does not exist, they invent it, over and over again. The ordeal, the oath, the trial by battle, torture (in continental systems), and cross examination all serve the same purpose – a magic spell or clever artifice that people believe will separate truth from falsehood. And we haven’t given up. The polygraph machine, sodium pentanol as a “truth serum,” these are less 20th century scientific discoveries than efforts to fill that human need for feel certainty in decisions for which there cannot be certainty.
In this context, hearsay emerges as a fixture of evidence law because unchecked it tramples upon the various “spells” that we rely upon for truth. Hearsay began as a way of cheating on oaths – a means to get testimony from a person who would not risk divine judgment to appear as a witness. It lived on as a way to avoid cross examination, a way to avoid Wigmore’s “legal engine of truth” that was trusted to sort the saints from the sinners on the witness stand. And it has spawned a thousand arcane exceptions because of the limits on what sort of fuel we can “feed” to whatever “truth engine” is in vogue. Neither audited financial statements nor a dead men can swear an oath so we must have exceptions. You can’t cross examine a birth certificate or a medical treatise, so there must be exceptions. Children could not be sworn as witnesses in 18th century courts, giving rise to the acceptance of flagrant hearsay in child sexual assault cases in the Old Bailey. [18]
Will we ever be rid of it? Perhaps not. Blackstone famously said that “experience will abundantly show, that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of.” [19] So long as there are disputes between people, we will have our “truth engines” to sort them and there will be efforts to exclude facts from those engines. And whatever the form that engine takes, there will be rules about what must be fed into it and what can be accepted without the benefit of its magic.
[1] John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law Volume II § 1364 (1904)
[2] Sir. Frederick Pollock & Frederick William Maitland, The History of English Law Before the Time of Edward I – Volume II, p. 654 (1898).
[3] John H. Langbein, The Origins of the Adversary Criminal Trial, p. 236-37 (2003).
[4] Id.
[5] N.Y. Crim. Proc. Law § 60.22 (“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.”).
[6] John H. Langbein, The Origins of the Adversary Criminal Trial, pp. 239-40 (2003).
[7] Id.
[8] John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law Volume II § 1367 (1904).
[9] Id.
[10] John H. Langbein, The Origins of the Adversary Criminal Trial, pp. 234-35 (2003).
[11] Id.
[12] J.H Baker, An Introduction to English Legal History, p. 510 n.54. [4th ed. 2002].
[13] John Beattie, Garrow for the Defense, History Today (Feb. 2, 1991).
[14] Proceedings of the Old Bailey, WILLIAM JONES. Theft; receiving. 10th December 1783, available at: https://www.oldbaileyonline.org/record/t17831210-105
[15] Proceedings of the Old Bailey, George Mason. Violent Theft; highway robbery. 8th December 1731, available at: https://www.oldbaileyonline.org/record/t17311208-38
[16] John H. Langbein, The Origins of the Adversary Criminal Trial, pp. 245-46 (2003).
[17] John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law Volume II § 1367 (1904).
[18] John H. Langbein, The Origins of the Adversary Criminal Trial, pp. 239-240 (2003).
[19] 3 William Blackstone, Commentaries on the Laws of England 330 (1765).
