Popularizing Hearsay

50 Pages Posted: 3 Oct 2015 Last revised: 3 Apr 2016

See all articles by Justin Sevier

Justin Sevier

Florida State University - College of Law

Date Written: October 2, 2015

Abstract

The rule barring hearsay evidence is in search of a popularizing rationale. Scholarly opinion regarding the purpose and efficacy of the rule is fractured, and commentators have described the resulting policy as a doctrinal free-for-all. Unfortunately, the leading rationale for the hearsay rule — that it promotes decisional accuracy by barring potentially unreliable evidence from the purview of legal fact finders — is, at best, devoid of empirical support, and at worst, an unfalsifiable assertion about the cognition and behavior of those who make legal decisions.

This Article proposes an entirely different rationale for the hearsay rule, which has the support of social science research and would add significant coherence to the doctrine. It argues that the hearsay rule should be premised on the social psychological concept of procedural justice, in which participants in the legal system are deemed to have certain dignity interests in facing their accusers in court. These interests are wholly separate and distinct from the potential unreliability of hearsay evidence.

This Article presents the results from two original psychology experiments that suggest that laypeople understand the hearsay rule as promoting principles of procedural justice and not decisional accuracy. Because a procedural justice rationale for the hearsay rule would align with popular attitudes toward what the hearsay bar accomplishes, it is likely to foster greater popular legitimacy for the rule. The far-reaching implications of these studies for empirical and theoretical hearsay scholarship, for the future of the hearsay rule, and for legal practitioners who make ground-level decisions under the rule are discussed.

Keywords: evidence, hearsay, experiment, psychology, decisional accuracy, procedural justice

Suggested Citation

Sevier, Justin, Popularizing Hearsay (October 2, 2015). 104 Georgetown Law Journal 643, 2016; FSU College of Law, Public Law Research Paper No. 774. Available at SSRN: https://ssrn.com/abstract=2668760

Justin Sevier (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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