Of Hearsay and Its Analogues

A witness reproduces a previously made probative statement in court. A letter submitted to the court describes an individual\u27s observation of facts to be proved. In both situations, the means of proof-the witness and the letter--draw their probative validity from an ulterior informational source. In this sense they are derivative means of proof. That the use of such informational sources is potentially dangerous to accurate factfinding is an old insight, shared by a great variety of adjudicative systems, past and present, regardless of whether they embraced an encompassing hearsay concept. The Anglo-American hearsay rule, often hailed as a unique flower from the common law garden, is only one of many reactions to this ancient insight, a reaction animated by a heightened sensitivity to second- hand information. This reaction is thrown into sharp relief when it is contrasted with the continental European response to the problem of derivative information. This paper\u27s task is to contrast Anglo-American and European treatment of derivative means of proof and thus to contribute to selfunderstanding

Truth in Adjudication

As the century limps to a close, the gap seems to be widening between the views on truth prevailing in a variety of theoretical disciplines and the understanding of truth in the social practice of adjudication. One of the working assumptions of the practice of adjudication is that truth is in principle discoverable, and that accuracy in fact-finding constitutes a precondition for a just decision. But influential currents of contemporary thought are skeptical of truth as a philosophical principle, and they doubt that the acquisition of objective knowledge is possible. Due to the unsettling force of this skepticism, legal scholars are beginning to wonder whether aspiration to objective knowledge is a realistic goal of factual inquiries in adjudication

Presentation of Evidence and Factfinding Precision

For at least a century a debate has been raging about the relative advantages of the adversary and nonadversary presentations of evidence as tools in the quest for the truth. Most of the time this debate proceeded in a mild sfumato of conceptual ambiguity: Differences in the styles of developing evidence were often conflated with differences in arrangements concerning the collection of evidence, admissibility rules, and similar related issues. Beyond that, until quite recently, the arguments advanced were speculative, and information was exclusively in the form of impressions and intuitive insights. In our age, so enamoured of scientific methodology and so desirous of replacing soft by hard data, the question almost naturally arises: can at least some themes involved in the debate be translated into a form susceptible of empirical analysis? If the answer is in the affirmative, perhaps products of disinterested science can replace our prejudice, parochialism, and irrational attachments to existing arrangements, no matter how efficient these existing arrangements may be. In the present Article I propose to express my reflections on this subject, reflections that were stimulated by a piece of research presented in a series of recent, thought-provoking empirical studies

Remarks on the Rule of Law and on Yugoslavia

In this anno Domini when Eastern and Central Europe are so much in the news, one hears little about Yugoslavia. Part of the explanation for this curious fact is, no doubt, the great complexity of the situation in this heterogeneous country in which even the landscape is noted for its variety. You will easily understand my own sense of despair, then, in having learned that I have to encapsulate my report in a fiveminute presentation. To make matters worse, my predecessors have lain so many Eastern-European problems bare that the boredom mentioned in connection with· the third stage of the velvet revolution may at this point already have set in. I shall therefore limit myself to making only a few remarks about the Yugoslav political situation, a theme whose tedium factor is somewhat lower than that of my specialty- the legal system