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 RESEARCH ESSAY: A PRELIMINARY EMPIRICAL ENQUIRY
CONCERNING THE PROHIBITION OF HEARSAY EVIDENCE IN
AMERICAN COURTS

Stephan Landsman* & Richard F. Rakos**

I. INTRODUCTION

In a frequently cited passage' John Henry Wigmore called the

hearsay rule the "most characteristic rule of the Anglo-American
law of evidence-a rule which may be esteemed, next to jury trial,
the greatest contribution of that eminently practical system to the
world's methods of procedure."' 2 Yet, Wigmore also said of the rule
against hearsay that it was "overenforced and abused,-the spoiled
child of the family,-proudest scion of our jury-trial rules of evi-
dence, but so petted and indulged that it has become a nuisance
and an obstruction to speedy and efficient trials."3
Wigmore viewed the hearsay rule as fundamental because it
helps protect lay jurors from potentially misleading information.'
At the same time, he was keenly aware of the evidentiary barrier it
poses to a host of second-hand materials. As a compromise be-
tween admitting all useful hearsay and protecting credulous jurors,
Wigmore devoted heroic labors to the refinement of a set of cate-
gorical hearsay exceptions. These allow the use of carefully speci-
fied sorts of hearsay because they are felt to be especially reliable
and, therefore, safe even for naive lay factfinders 5 Wigmore's work
in this area established the fundamental shape of modern Ameri-

. * Professor of Law, Cleveland-Marshall College of Law, Cleveland State Uni-

versity. B.A. 1969, Kenyon College; J.D. 1972, Harvard University.
* * Associate Professor, Department of Psychology, Cleveland State Univer-
sity. B.A. 1972, State University of New York at Stony Brook; M.A. 1976, Ph.D.
1978, Kent State University.
The order in which the authors are listed is the result of an agreement grow-
ing out of previous co-authorships, and should not be taken as an indication of
relative contributions to this article. We wish to thank Professor Michael Saks for
his painstaking review of this article and the research upon which it is based.
1. See, e.g., E. CLEARY, MCCORMICK ON EVIDENCE § 244, at 724 (3d ed. 1984);
R. LEMPERT & S. SALTZBURG, A MODERN APPROACH TO EvID. 347 (2d ed. 1982);
Weinstein, Probative Force of Hearsay, 46 IOWA L. REV. 331, 346 (1961).
2. 5 J. WIGMORE, EVIDENCE § 1364, at 28 (Chadbourn rev. ed. 1974).
3. J. WIGMORE, A STUDENT'S TEXTBOOK ON THE LAW OF EVIDENCE 238 (1935).
4. See infra note 39 and accompanying text.
5. See 5 J. WIGMORE, supra note 2, § 1422, at 253-54.
 Law & Psychology Review [Vol. 15:65

can hearsay law and is credited with having "prevented our com-
plex hearsay rule from collapsing of its own weight."
A growing number of scholars and judges have challenged
Wigmore's compromise and called for either the abolition 7 or sub-
stantial modification' of the hearsay rule. The aim of this essay is
critically to examine an essential premise of Wigmore's approach
to hearsay, the notion that jurors are incompetent to deal effec-
tively with hearsay evidence. Part II explores how the juror incom-
petence argument came to prominence. Part III presents prelimi-
nary empirical data that suggest the incompetence defense is open
to doubt. Part IV then outlines a course of experimentation that
might be used to confirm and extend these initial findings. Finally,
Part V concludes by suggesting that whatever the fate of the juror
incompetence argument there remain a number of other justifica-
tions for the hearsay rule that must be addressed before reform is
undertaken.

II. THE RISE OF THE JUROR INCOMPETENCE ARGUMENT

The hearsay rule was a latecomer to the English courtroom.

According to Wigmore, concern about out-of-court statements was
virtually unknown in the fifteenth century." Historians have gener-
ally concluded that at that time jurors were fundamentally self-
informing. 10 How trial jurors assembled the information upon
which they relied has not been definitively established but it would
appear that they frequently made private pretrial enquiries about
issues to be heard,11 acquired information as members of the pre-

6. Weinstein, supra note 1, at 346.

7. See, e.g., Carney, The Constant Factor:Judicial Review of the Fact Find-
ing Process in the Circuit Court of Appeal, 12 DUQ. L. REV. 233, 281-82 (1973);
Younger, Reflections on the Rule Against Hearsay, 32 S.C.L. REV. 281 (1980);
Note, The TheoreticalFoundation of the Hearsay Rules, 93 HARV. L. REV. 1786
(1980).
8. See, e.g., Chadbourn, Bentham and the Hearsay Rule-A Benthamic
View of Rule 63(4)(C) of the Uniform Rules of Evidence, 75 HARV. L. REV. 932
(1962); Weinstein, supra note 1.
9. See, Wigmore, The History of the Hearsay Rule, 17 HARV. L. REV. 437,
437-444 (1904); but see 2 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH
LAW BEFORE THE TIME OF EDWARD I at 622 (2d ed. 1968) (citing material that, in
1202, noted the untrustworthiness of hearsay).
10. See T. GREEN, VERDICT ACCORDING TO CONSCIENCE 16 (1985).
11. See 2 F. POLLOCK & F. MAITLAND, supra note 9, at 627 (medieval jurors
given ample opportunity to "certify themselves of the facts").
1991] Research Essay

sentment (grand) juries investigating serious criminal offenses,12

and used whatever might happen to come to hand including gossip,
rumor, and common belief. As Pollock and Maitland have con-
cluded, a substantial number of verdicts in this era must have been
"founded upon hearsay and floating tradition. 1 3 To have intro-
duced a hearsay rule in such a setting would have been to cripple
the English courts and to have made it impossible for them to re-
solve the questions they were asked to adjudicate.
Sometime during the 1500s the trial jury ceased to be self-in-
forming. 14 Why this change took place remains a puzzle but what is
clear is the steadily accelerating use of in-court testimony as the
basis for legal decision. By the middle of the sixteenth century
Parliament had enacted legislation providing a process to compel
the appearance of witnesses"3 and a set of statutes turning the
magistrate's pretrial questioning of witnesses in criminal cases
"into a device for the production of prosecution evidence at trial in
every case of felony in the realm." 1 Witnesses supplanted private
knowledge as the basis for jury decision. The shift to a testimony-
based process had a revolutionary effect on trials. One obvious re-
sult of this shift was the denigration of the value of materials spo-
ken or written out of court. Here perhaps is to be found the origin
of the hearsay idea.
At first, concern about out-of-court words did not lead to their
prohibition. Two famous treason trials a half century apart demon-
strate English willingness to continue using hearsay evidence. In
the first trial, in 1554, Sir Nicholas Throckmorton was charged
with treasonous participation in Wyat's rebellion." During the
prosecution's case he was moved to complain: "[H]ow happenth it
[that a key witness against me] is not brought face to face to jus-
tify this matter."1 8 Despite this remonstrance the hearsay evidence
was admitted. In the end, however, the jury acquitted

12. See T. Green, supra note 10, at 16-17.

13. 2 F. POLLOCK & F. MAITLAND, supra note 9, at 624.
14. See T. Green, supra note 10, at 105-52.
15. See 5 Eliz. c. 9; (1562-63) (witnesses served with process required to ap-
pear); see also 9 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 185 (3d ed. 1944).
16. Langbein, The Origins of Public Prosecution at Common Law, 17 AMER.
J. LEGAL HIST. 315, 321 (1973).
17. Throckmorton's Case, 1 St. Tr. 810 (1554).
18. Id. at 875-76.
 Law & Psychology Review [Vol. 15:65

Throckmorton. s
In 1603 Sir Walter Raleigh was charged with conspiracy to
commit treason against James I.20 At his trial two critical pieces of
hearsay evidence were introduced over Sir Walter's strenuous ob-
jection.2" This, according to Holdsworth, led him to declare: "[I]f
witnesses are to speak by relation of one another, by this means
you may have any man's life in a week, and I may be massacred by
mere hearsay as Sir Nicholas Throckmorton was like to have been
in Queen Mary's time. ' 22 Sir Walter's observations proved all too
accurate. He was convicted and executed.
This result and the more generally perceived dangers of hear-
say led, albeit slowly, to the exclusion of such evidence. Wigmore
found substantial expressions of concern about hearsay by the
1670s and "the fixing of the doctrine" by 1690.23 Wigmore based
his observations on records drawn from the most formal and assid-
uously litigated criminal cases. Research by one of the authors of
this article suggests that the hearsay rule was far from fixed in the
everyday practice of English felony courts until at least the mid
1700s.2 ' What is clear though, is that by the early 1700s hearsay
had become suspect and was increasingly likely to be banned from
court.
The first great expositor of the rules of evidence was Chief
Baron Geoffrey Gilbert. At the beginning of the eighteenth century
he provided the initial scholarly justification for a rule prohibiting
hearsay. As far as Gilbert was concerned the key to the reception
of testimony was the fact that the witness had sworn an oath
vouching for the truthfulness of his statements. Gilbert argued:
"[W]here the binding Force of an Oath ceases, the Reasons and
Grounds for Belief are Absolutely dissolved. 2 5 Applying this rea-
soning to hearsay meant the prohibition of a vast body of material

19. The jurors acquitted Throckmorton despite being fined and jailed for do-
ing so. Id. at 870.
20. Raleigh's Case, 2 St. Tr. 1 (1603).
21. Id. at 15-26.
22. Quoted in 9 W. HOLDSWORTH, supra note 15, at 216.
23. Wigmore, supra note 9, at 445.
24. See Landsman, The Rise of the Contentious Spirit:Adversary Procedure
in Eighteenth Century England, 75 CORNELL L. REV. 497, 564-72 (1990) (growing
though inconsistent use of the hearsay rule in London's Old Bailey criminal court
from 1717 to 1797).
25. G. GILBERT, THE LAW OF EVIDENCE 103 (1754) (Facsimile of the 1754 ed.
published by Garland Publishing, Inc. 1979).
1991] Research Essay

spoken or written out of court. Gilbert's analysis did not, however,

prove entirely satisfying. It still allowed the use of a variety of
hearsay statements especially if they were made under oath.2 6 This
was precisely the sort of material that had been used to procure
Raleigh's conviction.
During the course of the eighteenth century reliance on the
cross-examination of witnesses grew dramatically. Its great mas-
ters, including the ascerbic William Garrow and the celebrated
Thomas Erskine, demonstrated that in skilled hands interrogation
could be the key to litigation.2 7 By the early 1800s it was coming to
be believed that the absence of cross-examination rather than the
oath was the key to the hearsay problem. While not abandoning
the oath-centered rationale, evidence scholars ever more clearly
stressed the need for cross-examination. Writing in 1801, Thomas
Peake declared of the hearsay rule:
The Law never gives credit to the bare assertion of any
one, however high his rank, or pure his morals; but always re-
quires the sanction of an oath: It further requires his personal
attendance in Court, that he may be examined and cross ex-
amined by the different parties, and, therefore, in cases de-
pending on parol evidence, the testimony of persons who are
themselves cognizant of the facts they relate, must in general
be produced; for the relation of one who has no other knowl-
edge of the subject than the information he has received from
others, is not a relation upon oath; and moreover the party
against whom such evidence should be permitted, 28
would be
precluded from his benefit of cross examination.
Similarly, a decade later, S.M. Phillipps said:
It is a general principle in the law of evidence, that if any fact
is to be substantiated against a person, it ought to be proved in
his presence by the testimony of a witness sworn to speak the
truth; and the reason of the rule is, because evidence ought to
be given under the sanction of an oath, and that the person,
who is to be affected by the evidence, may have an opportunity

26. Id. at 99.

27. For an introduction to the work of Garrow and Erskine, see Landsman,
supra note 24, at 561-64. It has been claimed that Garrow, in particular, "was
unrivalled in the art of cross-examination." 7 DICTIONARY OF NATIONAL BIOGRAPHY
907-08 (1968).
28. T. PEAKE, A COMPENDIUM OF THE LAW OF EVIDENcE 7-8 (1801) (Facsimile
of the 1801 ed. published by Garland Publishing, Inc., 1979).
 Law & Psychology Review [Vol. 15:65

of interrogating the witness as to his means

29
of knowledge and
concerning all the particulars of the fact.

Despite these concerns the exclusion worked by the hearsay

rule was not immune from criticism. Jeremy Bentham in his monu-
mental five volume Rationale of Judicial Evidence, written be-
tween 1802 and 1812, vigorously challenged virtually all exclusion-
ary rules of evidence. For Bentham the key was "[m]ore evidence,
and that better."' With regard to hearsay Bentham forcefully ar-
gued that it should be admitted so long as no clearly superior evi-
dence was readily available. Bentham carefully analyzed the hear-
say question and challenged what he saw as its implicit assumption
that jurors could not properly analyze such material. He argued:
.... suppose the danger of being deceived by [hearsay] not
universally extensive, but confined to the non-professional
class of judges; the system of exclusion, even in this limited
application of it, is still precipitate and indefensible. You con-
clude they will be deceived by it: why so hasty in your conclu-
sions? To know whether they have or have not been deceived
by it, depends altogether upon yourself. What? Can you not so
much as stay to hear their verdict? Condemn men unheard?
Condemn thus your fellow judges? Apply, where as yet there is
no disease, a remedy, and a remedy worse than the disease?31

Bentham's challenge went unanswered. However, it did pre-

sage the rise of a new rationale in defense of the hearsay rule, that
lay jurors were incompetent to analyze hearsay evidence. The no-
tion of juror incompetence obviously was not derived from early
jury procedure since that procedure had unreservedly relied upon
second-hand information. Rather it appears to have arisen out of
what federal judge and evidence scholar Jack Weinstein has de-
scribed as the nineteenth century "upper class English judges'"
contempt for "lower class . . . jurors."3 2 Such animosity is apparent
in many of the leading hearsay decisions of that era. One of the
most famous of these was Lord Mansfield's statement in a case
concerning accession to the earldom of Berkeley. There Mansfield

29. S. PHILLIPPS, A TREATISE ON THE LAW OF EVIDENCE 185-86 (3d ed. 1817).
30. 2 J. BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 593 (1827) (Facsimile of
the 1827 ed. published by Garland Publishing, Inc. 1978).
31. 3 J. BENTHAM, supra note 30, at 593.
32. Weinstein, Alternatives to the Present Hearsay Rules, 44 F.R.D. at 375,
377 (1968).
1991] . 9 Research Essay

declared:
In Scotland, and in most of the Continental States, the
Judges determine upon the facts in dispute as well as upon the
law: and they think there is no danger in their listening to evi-
dence of hearsay, because when they come to consider of their
judgment on the merits of the case they can trust themselves
entirely to disregard the hearsay evidence or to give it any lit-
tle weight which it may seem to deserve. But in England,
where the jury are the sole judges of the fact hearsay evidence
is properly excluded, because no man can tell what effect it
might have upon their minds."3
Later judges advanced such views even more bluntly, as for exam-
34
ple, in the speech of Justice Coleridge in Wright v. Tatham.
Coleridge sarcastically argued that a rule admitting hearsay would
operate on the untenable assumption "that whatever is morally
convincing, and whatever reasonable beings would 'form
'
their judg-
ments and act upon, may be submitted to a jury. 13
The rhetoric of jury distrust found its way into evidence schol-
arship as well. About a decade after the Berkeley Peerage case
Thomas Starkie published his Practical Treatise of the Law of Evi-
dence. In it he not only cited the oath and cross-examination justi-
fications but added the new argument concerning jury ineptitude.
As he put it:
Another reason for the rejection of such evidence arises
from the nature and constitution of the tribunal whose minds
are to be convinced. If it were to be assumed, that one who had
been long enured to judicial habits might be able to assign to
such evidence just so much, and no greater credit than it de-
served, yet, upon the minds of a jury unskilled in the nature of
judicial proofs, evidence of this kind would frequently make an
erroneous impression. Being accustomed, in the common con-
cerns of life, to act upon hearsay and report they would natu-
rally be inclined to give such credit when acting judicially; they
would be unable to reduce such evidence to its proper stan-
dard, when placed in competition with more certain and satis-
factory evidence; they would, in consequence of their previous
habits, be apt to forget how little reliance ought to be placed

33. Petition of William Fitzharding Berkely, 171 Eng. Rep. 128, 135 (H.L.
1811).
34. 7 Eng. Rep. 559 (H.L. 1838).
35. Id. at 566.
 Law & Psychology Review [Vol. 15:65

upon evidence which may so easily and securely be fabricated;

their minds would be confused and embarrassed by a mass of
conflicting testimony, and they would be liable to be
prejudiced and biased by the character of the person from
whom the evidence was derived."
Thus the claim that jurors are unable to analyze second-hand
information came to be one of the fundamental props of the hear-
say rule. Two of the greatest evidence scholars of the modern era,
James Bradley Thayer and John Henry Wigmore, embraced vari-
ants of this proposition and made it a fundamental part of Ameri-
can evidence law. Thayer suggested that the hearsay rule was the
offspring of the jury system, in other words, a rule responsive to
the limitations of lay jurors.3 7 He also explained the hearsay excep-
tions as items of evidence that an excessively credulous jury might
be trusted safely to consider because of their intrinsic reliability.3 8
Wigmore began his career as Thayer's proteg6 and based a good
deal of his approach to evidence on Thayer's work. "Mr. Wig-
more's basic assumption in treating hearsay [was] a judicial convic-
tion that the jury must be protected from testimony which it
[could not] properly evaluate."3 9 Together these two scholars es-
tablished the foundation for the modern hearsay rules and, in large
measure, the present prescriptions and categorical exceptions re-
flect their concerns about juror incompetence.

III. AN EXPERIMENT CONCERNING THE JUROR INCOMPETENCE

ARGUMENT

Jeremy Bentham challenged the rule makers of his day to test

whether jurors would actually be deceived by hearsay. None, as far
as we know, undertook such an investigation. In fact, at the time
we began to consider this problem no experimental examinations
of juror reaction to hearsay were available.'0 We therefore decided

36. 1 T. STARKIE, A PRACTICAL TREATISE OF THE LAW OF EVIDENCE AND DIGEST

OF PROOFS IN CIVIL AND CRIMINAL PROCEEDINGS 45-46 (1824).
37. See J. THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON
LAW 47 (1898).
38. Id. at 518-23; see J. THAYER, LEGAL ESSAYS 265 (1908).
39. Morgan & Maguire, Looking Backward and Forward at Evidence, 50
HARV. L. REV. 909, 919 (1937).
40. Since the time we conducted our experiments one preliminary paper has
appeared concerning the effect of hearsay evidence on jurors. See Miene, Park,
Borgida & Anderson, The Evaluation of Hearsay Evidence, Paper presented to
1991] Research Essay

that the time had come to empirically scrutinize the juror incom-
petence argument.
To that end we created a hypothetical criminal trial transcript
containing inculpatory hearsay along with a variety of admissible
evidence. We chose a criminal case because we believe state prose-
cution with its heightened concern for the rights of the defendant
provides the most poignant setting in which to evaluate juror com-
petence. We reasoned that our materials would induce a substan-
tial portion of our experimental sample to make an improper use
of hearsay if indeed laypersons are insensitive to the dangers in-
herent in such testimony.
We provided our hypothetical transcript to 147 male and fe-
male undergraduate students who agreed to participate in the pro-
ject for college course credit. The transcript was twelve pages in
length and presented the trial of a defendant accused of stealing a
raincoat containing a wallet from a restaurant coat rack. According
to the transcript, the defendant was apprehended while wearing
the coat.
Subjects received one of twelve different versions of the case.
These versions varied the strength of the hearsay evidence (four
levels) as well as the other evidence (three levels) in the case.4 1
This twelve cell factorial design was adopted so we could trace the
impact of hearsay evidence with some precision.
The transcript included introductory remarks by the judge,
opening and closing statements by counsel, several dozen eviden-
tiary statements by four witnesses, cross-examination, and final in-
structions detailing the applicable Ohio law and the jury's duty to
apply the law to the facts. The hearsay evidence, introduced by the
prosecution, was treated as admissible (i.e., no defense objection or
judicial limiting instruction was presented).
The witness who provided the hearsay material was the man-
ager of the restaurant from which the coat was stolen. He testified
about his conversation with the restaurant's cashier, who, after the
incident, left her job and was not available to testify. In each of the
four hearsay versions the manager related where the out-of-court
speaker (cashier) had gone and what she had told him about the

the American Psychological Association in Boston, Mass.(Aug. 1990).

41. The evidence manipulation varied the amount of cash in the victim's wal-
let ($310, $100, $15) and the location of the wallet when the defendant was ar-
rested (defendant's pants pocket, coat pocket, original location).
 Law & Psychology Review [Vol. 15:65
theft. The four hearsay variations were as follows:
(a) Strong: The cashier joined a police force. She told the
manager the defendant carefully examined the pockets of eight
coats, pulled a wallet from the last one, looked around ner-
vously, and ran out.
(b) Moderate: The cashier simply left her job. She told the
manager that the defendant carefully examined about eight
coats, found something in the pocket of the last one, put the
coat on, and immediately went out.
(c) Weak: The cashier was fired. She told the manager she
thought she saw someone who might have been the defendant
go through some coat pockets.
(d) No relevant hearsay information: The cashier left. She
said she had not seen anything.
We varied both the content of the hearsay and the credibility of
the out-of-court speaker because, as Federal Rule of Evidence 806
indicates, hearsay evidence places in issue the credibility of the ini-
42
tial narrator as well as the cogency of his or her remarks.
Each of the twelve groups of 10-15 subjects received one com-
bination of hearsay and evidence strength. Subjects were in-
structed to read the transcript very carefully, assume the role of
jurors who would return a verdict, and then respond to three short
questionnaires. The first of these was the Trial Decision Question-
naire (TD) in which subjects indicated a verdict (guilty/not guilty)
and their confidence in that verdict on a seven point scale. The
second was a Trial Reaction Questionnaire (TR) that called upon
them to use a seven point scale to evaluate the defendant's charac-
ter, the importance of 14 specific evidentiary statements intro-
duced at the trial (including the variable hearsay statement and
the two statements that varied the strength of the case against the
defendant), and five issues concerning the integrity of the trial pro-

42. Fed. R. Evid. 806 provides, inter alia:

When a hearsay statement, or a statement defined in Rule
801(d)(2), (C), (D), or (E), has been admitted in evidence, the credi-
bility of the declarant may be attacked, and if attacked may be sup-
ported, by any evidence which would be admissible for those purposes
if declarant had testified as a witness.
FED. R. EVID. 806. As the Advisory Committee has noted, "The declarant of a
hearsay statement which is admitted in evidence is in effect a witness. His credi-
bility should in fairness be subject to impeachment and support as though he had
in fact testified." FED. R. EvID. 806 advisory committee's note.
1991] Research Essay

cess (fairness of trial and judge, competence of each attorney, and

extent of justice). The third questionnaire was a Sources of Per-
sonal Judgment Scale (SPJS) with seven items, scored on a seven
point scale, assessing the importance ascribed to specific sources of
information by subjects when forming judgments about others.
These included four social/cultural "filler" sources (newspaper and
radio advice columnists, religious teachings and Scripture, televi-
sion commentaries and documentaries, standards modeled in films
and television shows), first-hand information acquired through ac-
tual interactions, and two hearsay sources (what others said had
been their experience and what others said they had heard).
Analysis of variants of the SPJS data disclosed that subjects
in the twelve conditions were not differentially predisposed to rely
on hearsay in forming decisions about other people. The subjects
generally indicated their reliance on actual experience (overall
mean = 6.20) rather than what others said (overall mean = 4.00)
or what others said they had heard (overall mean = 2.95). The
details of the SPJS data appear at Table 1 in the Appendix.
Table 2 in the Appendix summarizes the results obtained in
the TD questionnaire. Chi-square analysis revealed that verdicts
were not influenced by the hearsay manipulation. [X 2 (3,144) = 3.0
(Table 2, #1)]. They were, however, affected by the strength of the
evidence [X2(3,144) = 9.8 p<.007 (Table 2, #1)]. Significantly
more guilty verdicts were returned when the evidence was strong
(33/43 or 77%) as compared to when it was moderate (24/49 or
49%) or weak (25/52 or 48%). When the strength of the evidence
was held constant, Chi-square analyses indicated that hearsay had
no effect on verdict. An analysis of variants demonstrates that con-
fidence in verdict was unaffected by both strength of evidence and
hearsay.
Analyses of variants of the TR materials (set forth in Table 3
in the Appendix) showed that jurors found moderate and strong
hearsay more important than weak or no hearsay [F(3,143) =
16.49, p<.001]. Interestingly, subjects who reported high reliance
on hearsay in their SPJS questionnaire tended to ascribe increased
importance to the hearsay evidence [r(21) = .31, p<.08 ]. Even
those subjects who reported moderate reliance on hearsay in every-
day interactions rated the hearsay evidence as more important
[r(110) = .24, p<.005]. On the other hand, the specific pieces of
non-hearsay evidence that were varied in strength (the location of
the wallet and the amount of cash) failed differentially to influence
 Law & Psychology Review [Vol. 15:65

the mock jurors.

In our study, mock jurors judged moderate or strong hearsay
evidence to be more important than weak hearsay or an innocuous
statement (no hearsay). Yet even strong hearsay failed differen-
tially to influence their verdicts. On the other hand, consistent
with prior observations, stretching back at least to Kalven and
Zeisel's ground-breaking work in the American Jury, 3 the overall
strength of evidence measurably affected verdicts.
Two nonexclusive explanations are possible for these data.
First, given that strong, specific evidence-unlike the overall
strength of the case-was not differentially influential, it is possi-
ble that subjects produced verdicts in the context of a global ap-
praisal of all the evidence rather than by a focus on specific items
of evidence, including hearsay. This may account for the fact that
two pieces of consistent evidence varied as a function of the
strength of the case.44 Second, even the importance ascribed to
strong hearsay (the mean was 4.8) was modest, compared to that
attached to most of the other evidentiary statements (generally,
means were around 5.5). In fact, variations in hearsay strength, un-
like similar variations in evidence strength, failed to influence the
importance ascribed to consistent pieces of evidence. Thus, hear-
say may be recognized as a weaker form of evidence and accorded
less influence in decisions. In support of this, though most subjects
(N=135) reported some use of hearsay in everyday life, and
tended to use it in the trial, they recognized that hearsay was less
important than actual interaction for forming personal judgments.
Viewed together, these data suggest that jurors may be able com-
petently to evaluate and weigh inculpatory hearsay statements.4"
In our experiment hearsay that was not highlighted as inap-
propriate, and that was introduced within the context of a sub-
stantial volume of other evidence, appeared to exert minimal influ-
ence on the ultimate outcome of the trial. This result is at best
suggestive; it requires replication through more sophisticated re-

43. H. KALVEN & H. ZISEL, THE AMERICAN JURY 158-62 (1966).

44. These items were the defendant's cooperation when he was searched (#7
Table 3 infra in the Appendix) and the presence of several rain coats on the coat
rack because of the rainy weather conditions (#15 Table 3 infra in the Appendix).
45. See Miene, Park, Borgida & Anderson, [hereinafter Miene] supra note
40. Using a somewhat different modality (undergraduate students viewing a
videotape reenactment), Miene also obtained results suggesting that jurors dis-
count hearsay testimony.
1991] Research Essay

search."' If our initial findings hold up, however, a fundamental

tenet of the Wigmorian approach to hearsay will be substantially
weakened and the legal system might be warranted in reevaluating
the hearsay rule. 7
These findings also raise questions about the utility of prophy-
lactic measures including the evidentiary objection and the limit-
ing instruction. On the strength of the above data such steps may
be unnecessary. Their use may, in fact, unduly highlight hearsay
material. Psychological evidence suggests that limiting instructions
are, in some circumstances, no more than minimally effective' s and
may prove counterproductive by drawing unwarranted attention to
a statement. 9 Other safeguards may suffice. Foremost among these
might be a requirement of notice of intent to use hearsay coupled
with systematic voir dire procedures designed to identify and ex-
cuse jurors predicted to be unduly vulnerable to hearsay
statements.

IV. QUESTIONS IN NEED OF FURTHER EXPERIMENTAL EXAMINATION

A. Confirmation of Findings
The preliminary findings described above are provocative. If
correct, they signal a strong argument for the reevaluation of the
hearsay rule. No reevaluation, however, should be undertaken on
the strength of one or two preliminary experiments. What is
needed is the replication of these results in a range of different
conditions.50
In order to confirm the findings described above and to help
assure their applicability to the courtroom a series of experiments
under conditions that more closely approximate trial are war-
ranted. Such a series would lend external validity to the research
and a replication of results would significantly bolster the impact

46. The form such research might take is discussed in Part IV infra.
47. Such a reevaluation would have to address other questions besides juror
competence. A number of such questions are briefly canvassed in Part V infra.
48. See Wissler & Saks, On the Inefficacy of Limiting Instructions: When
Jurors Use Prior Conviction Evidence to Decide on Guilt, 9 LAW & HuM. BEHAV.
37 (1985).
49. See Tanford & Cox, The Effects of Impeachment Evidence and Limiting
Instructions on Individual and Group Decision-Making, 12 LAW & HUM. BEHAV.
477 (1988).
50. See Monahan & Walker, Social Authority: Obtaining, Evaluating, and
Establishing Social Science in Law, 134 U. PA. L. REv. 477, 507-08 (1986).
 Law & Psychology Review [Vol. 15:65

of our findings. Three elements that might be altered to heighten

realism are the composition of the subject group, the modality em-
ployed in the stimulus materials, and the deliberative process used
by subjects.
In future experiments jury eligible individuals of varying ages
and educational backgrounds ought to be substituted for college
undergraduates. The use of such subjects will substantially reduce
the possibility that results reflect any educational or age related
bias. Although we do not anticipate that results will vary signifi-
cantly, an obvious element of verisimilitude will be added and a
potentially confounding factor will be eliminated.5 1
While the use of a written experimental stimulus is efficient
and has been frequently relied upon in social science research, 52 a
written transcript is substantially different from the courtroom ex-
perience. 53 In order to ensure that the hearsay experiments pro-
duce findings reflective of courtroom reality it might prove benefi-
cial to switch from the written modality to one that more closely
tracks the forensic experience. Perhaps the best means to this end
is the preparation of a videotaped courtroom trial simulation. Such
a tape has the advantage of emphasizing the oral and visual while
at the same time retaining the replicability needed for social sci-
ence evaluation. Much recent psycho-legal research has shifted
from written materials to videotaped reenactments."
A third change that would yield results more clearly approxi-
mating those of the courtroom is the alteration of the deliberative
structure so that decisions are generated by jury panels rather than
individual jurors. While it has been found repeatedly that the first
vote of individual jurors is an extremely reliable predictor of final
jury decision 55 a shift to group deliberations would both identify
any unanticipated collegial effect and serve to heighten external

51. Id. at 506-07; see Weiten & Diamond, A CriticalReview of the Jury Sim-
ulation Paradigm:The Case of Defendant Characteristics,3 LAW & HuM. BEHAV.
71, 75-76 (1979); Lind & Walker, Theory Testing, Theory Development, and Lab-
oratory Research on Legal Issues, 3 LAW & HUM. BEHAV. 5 (1979).
52. See Weiten & Diamond, supra note 50; Bray & Kerr, Use of the Simula-
tion Method in the Study of Jury Behavior, 3 LAW & HUM. BEHAV. 107 (1979).
53. See Weiten & Diamond, supra note 50, at 77-78; Bray & Kerr, supra note
51, at 107-08.
54. See S. KASSIN & L. WRIGHTSMAN, THE AMERICAN JURY ON TRiAL 17 (1988).
55. See H. KALVEN & H. ZEISEL, supra note 43, at 488 ("with very few excep-
tions the first ballot decides the outcome of the verdict. And if this is true then
the real decision is often made before the deliberations begin.").
1991] Research Essay

validity.

B. Exploring Variations
There are a number of interesting questions that deserve con-
sideration in light of our preliminary research. Although the jury
might be found to be generally competent to evaluate inculpatory
hearsay, there may be occasions when jurors ought to be specially
warned about the risks posed by a particular piece of hearsay. Re-
search seems warranted to determine whether the traditional
methods of providing warnings about troublesome evidence will
work in the hearsay context, especially in light of the highlighting
effect discussed above. Such an enquiry could be conducted by
providing juror subjects with arguments by counsel and/or limiting
instructions by the judge in addition to hearsay materials previ-
ously determined to be especially provocative.
A related series of experiments would be needed to assess
whether specified sorts of hearsay or hearsay provided in specified
evidentiary contexts pose special risks. Items appropriate for ex-
amination might include exculpatory hearsay in a criminal case,56
evidence of an especially inflammatory sort like prior crimes, and
particularly vivid evidence like written hearsay made available to
the jury during its deliberations pursuant to traditional court rules.
Other topics appropriate for enquiry might include the use of hear-
say in different sorts of criminal cases (murder, robbery, etc.) or in
civil rather than criminal trials. The object in each of these set-
tings would be to ascertain whether jurors are capable of handling
hearsay materials in a thoughtful manner.
Up to this point all the research outlined has been concerned
with the question of juror competence. Competence is not the only
question raised by hearsay materials. A concern that deserves so-
cial science examination is whether the use of hearsay at some
point jeopardizes the appearance of the fairness of proceedings. As
Thibaut and Walker have pointed out, in assessing the validity of
any procedural mechanism it is necessary
to know how each of the possible procedural choices is per-

56. A compelling example of exculpatory hearsay was the confession of an-

other man that the State of Mississippi sought unsuccessfully to bar in Chambers
v. Mississippi, 410 U.S. 284 (1973).
57. On the inflammatory impact of prior crimes evidence see Wissler & Saks,
supra note 47.
 Law & Psychology Review [Vol. 15:65

ceived and evaluated by persons subject to the process and by

other persons who may at some future time have their rights
decided in a similar setting. This subjective measure is crucial
because one of the major aims of the legal process is to resolve
conflicts in such a way as to bind up the social fabric and en-
courage the continuation of productive exchange between
individuals. 8
Hearsay may pose risks to the perceived fairness of proceedings.
Commentators since the seventeenth century have questioned the
fairness of Sir Walter Raleigh's trial because of its reliance on du-
bious hearsay. The nature of the proceedings clouded the reputa-
tion of the Stuart monarchy and helped inspire political revolution
and legal reform. If the abandonment of the hearsay rule is to be
contemplated it is important to assess under what, if any, condi-
tions reliance on hearsay might offend the communal sense of
fairness.
The above suggestions are little more than a preliminary sam-
pler of the sorts of questions that might be asked in light of our
initial findings. As with so much social science research, it is the
confluence of findings from a variety of sources that, in the end,
will determine the real significance of the research.

V. OTHER JUSTIFICATIONS FOR THE HEARSAY RULE

Even if research of the above-described sort were fatally to un-

dermine the juror incompetence rationale, it might not be appro-
priate to abandon the hearsay rule. A number of justifications have
been advanced for the rule that have nothing to do with juror
competence.
Charles Nesson has suggested that a key purpose of the hear-
say prohibition is to protect court judgments from the prospect of
post hoc assault based on the testimony of witnesses capable of
contradicting previously relied upon hearsay assertions.59 Mortimer
Kadish and Michael Davis have defended the rule as essential to
the operation of our adjudicatory system. They have argued:

58. J. THIBAUT & L. WALKER, PROCEDURAL JUSTICE A PSYCHOLOGICAL ANALYSIS

67 (1975).
59. See Nesson, The Evidence or the Event? On Judicial Proof and the Ac-
ceptability of Verdicts, 98 HARv. L. REv. 1357, 1372-75 (1985); but see Park, The
Hearsay Rule and the Stability of Verdicts: A Response to Professor Nesson, 70
MINN. L. REV. 1057 (1986).
1991] Research Essay

Taking the direct testimony of those who have seen or

heard a disputed fact places the trier of fact as close to that
fact as the nature of adjudication allows. Hearsay, on the other
hand, puts the trier of fact at least one remove in a role resem-
bling that of a court of appeals. The trier must take the record
more or less as it is. For that reason, every trial court must
prefer direct evidence to hearsay-or accept its own diminish-
ment. . . . Hearsay cannot be treated as just another form of
evidence without transforming adjudication into another pro-
cess. For the trier of fact, whatever the force of a particular
piece of hearsay, treating hearsay as ordinary evidence always
involves a compromise of principle. For that reason, the bur-
den of proof should fall upon those who propose to admit hear-
say evidence into the deliberations of the court.10
Others have been concerned with the unfairness, both real and
apparent, worked by the uncritical acceptance of hearsay. 61 Ra-
leigh's condemnation demonstrates the dangers the use of hearsay
can pose. Reaction to Raleigh's case illustrates the way the use of
hearsay can not only cause injustice but serve to discredit the adju-
dicatory process as well. Related to these concerns is the argument
of commentators and lawyers who have challenged the abrogation
of the hearsay rule because it would allow judges "unbridled dis-
cretion" in picking and choosing among proffered hearsay state-
ments.8 2 Such power could threaten the adversarial balance which
cedes control of the proof-adducing process to lawyers rather than
judges."
All of these concerns militate for formal protection from the
use of hearsay notwithstanding the capability of jurors to ade-
quately evaluate such evidence. Such issues must be effectively ad-
dressed before the hearsay rule is reformulated.

60. Kadish & Davis, Defending the Hearsay Rule, 8 LAW & PHIL. 332, 349
(1989).
61. See, e.g., Swift, A FoundationFact Approach to Hearsay, 75 CAL. L. REV.
1339, 1369-75 (1987).
62. Park, supra note 58, at 1060 n..
63. On the nature of the adversarial balance, see S. LANDSMAN, ADVERSARIAL
JUSTICE: THE AMERICAN APPROACH TO ADJUDICATION 2-5 (1988).
 Law & Psychology Review [Vol. 15:65

APPENDIX

Table 1

Sources of Judgment About Another Person

1
Dependent Variable Evidence Condition Hearsay Condition
Weak Moderate Strong None Weak Moderate Strong
1. Advice Columnists 3.1 3.4 a,b 2 .9 a 2. 6 a 3. 8 b
a
2. Personal interactions 6.2 6. 2 a 6 .4 a 5. 5 b 6.6
b
2.9a,b 3.6a,
3. Religion 3.0 3. 7 a 2 .7 b
4. What others say has
been their experience 4.1 3.9 4.3
5. TV documentaries 3.7 3.3 4.1
6. What others say they
have heard 3.1 2.9 3.0 2.8 2.9 3.2
6. Films and TV shows 2.4 2.5 2.6 2.1 2.0 2.7

1. 1 = least important, 7 = most important.

Note: Different superscripts signify statistically significant differences at the p <
.05 level (tu key B test).
1991] Research Essay 83

Table 2

Trial Verdict

Dependent Variable Evidence Condition Hearsay Condition

1. Verdict: Guilty/ 25 / 2 7 a 2 4/ 2 5a 3 3 / 10 b 20/19 27/13 17/17 18/13
1
Not Guilty
2. Confidence in 5.6 5.2 5.0 5.4 5.1 5.2 5.5
2
verdict

1. Numbers represent actual frequency guilty/not guilty verdicts.

2. 1- least, 7 most..
Note: Different superscripts signify a statistically significant difference at the p <
.05 level.
 Law & Psychology Review [Vol. 15:65

Table 3

Reaction to Trial

Dependent Variable Evidence Condition Hearsay Condition

Weak Moderate Strong None Weak Moderate Strong
1. Defendant's1
character 3. 3 a 3 .7 a 4 .5 b 3.7 3.4 4.1
Importance of Evidentiary
2
Statements
-Victim's testimony
2. Wallet used, placed in
pocket
3. Noticed coat missing
4. Description of coat
5. Coat distinctive
-Police Officer's testimony
6. Defendant found wearing
coat 5.4 5.6 5.8 5.4
7. Defendant cooperated 5. 9 a 5.9a 5 .0 b 5.7
8. Location of wallet/
cashE
5.6 5.5 5.9 5.5 5.8 5.4 5.9
-Restaurant Manager's Testimon3 4
9. Defendant perused rack 4.9 4.7 5.2 4.7 5.0 4.7 5.3
10. Related cashier's
observationsH 2. 3 a 3 .0 a 4 .5 b 4 .8 b
11. No coats left on rack 4.5 5.1 4.7 4.9
-Defendant's testimony
12. Thought coat lost
earlier 4.6 4.9 4.2 5.2 4.7 5.1 4.6
13. While wearing coat, found
strange wallet, placed it
for safekeeptingE 5.3 5.4 5.6 5.9 5.3 5.1 5.4
14. Unfamiliar with coat
since worn rarely 5.1 5.2 5.0 5.6 5.0 4.8 4.9
-Collaborative testimony (victim, restaurant manager, and defendant)
15. Rainy day, several tan
coats on rack 5. 7 a 6 .0 a 4 .9 b 5.7 5.3
537 5.4
19911 Research Essay 85
2
PERCEPTION OF TRIAL

16. Overall fairness 5.1 5.0 5.4 5.4 5.2 4.9 5.1
17. Fairness of judge 5.8 5.6 5.9 6.0 5.9 5.3 5.8
18. Competence of defense
attorney 5.2 4.6 5.0 5.1 5.1 4.6 5.0
19. Competence of
prosecutor 4 .9 a 4 .6 a 5 .8 b 5.2 5.2 4.7 5.1
20. Achievement of
justice 5.0 4.6 5.2 5.0 5.2 4.4 5.0
1. 1 positive, 7 = negative.
2. 1 = least, 7= most.

E. Testimony manipulating strength of evidence.

H. Testimony manipulating strength of hearsay.

Note: Different superscripts signify a statistically significant difference at the p < .05 level
(tu key B test).