The Jury Dependence of the Hearsay Ban

Abstract

This paper argues there is little reason for a hearsay ban in the absence of jury trial. (1) The ban can’t be supported on the ground, dubious in the first place, that jurors are incompetent to give hearsay proper weight. (2) Excluding hearsay has little effect when the screener and the fact-finder are the same person. (3) Because of the greater influence of judges on the proof process, there is less danger that lawyers will use hearsay evidence strategically to deprive the trier of more valuable evidence. (4) Because judges can be required to explain decisions, assessing output is an alternative to trying to control input. (5) The value of complicated, detailed exceptions as a check on discretion is reduced or eliminated. Overall, there is a great weakening of the arguments that, in a jury system, are advanced as outweighing the principle that it is best for the trier to have access to all evidence that has probative value.This paper was prepared for presentation at a conference on evidence law reform in developing countries that is to be held in Chicago on Nov. 21-22, 2014. It contains other comments about procedural features of the American judicial system that influence the hearsay ban. It also contains comments on the hearsay provisions of a proposed codification (the Tanzania Evidence Act) that was distributed to participants by Professor Ron Allen, one of the organizers of the conference.