Of Hearsay and Its Analogues

Abstract

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