I’ve heard it attributed – perhaps apocryphally – to John Maynard Keynes the line that a legal training is a form of brain damage. I couldn’t find it on google when I last looked, so I don’t know if he said it. But is it true? Well I have a legal training – of sorts – and during that training I did discover some evidence for the proposition.
Two things that made me wonder when I studied law were were the doctrine of consideration and the rule against hearsay. I argued here that the doctrine of consideration is completely redundant. One could remove it, and possibly very slightly amend its ‘adjacent’ principle in the tests of the establishment of contract – the intention to create legal relations – and we could all go on with our lives relieved of a few hundred thousand pages of otiose nonsense about when the rule should and should not be applied. That’s roughly what they do in European contract law.
Ditto the rule against hearsay.
The rule arises from the casual observation that it is easy for crims or those accusing people of criminality to make stuff up and to have people back them up. “Your honour someone told me they saw Joe at a barbie at the time the robbery was on.” The point of the rule against hearsay is that this evidence isn’t as good as it could be – because what you really want is for the person who claims to have seen Joe to testify before the court and be subject to cross examination. But what if the person can’t be there? Well there are a thousand rules which tell you that sometimes it’s OK and sometimes it’s not OK to adduce the evidence.
It seems to me bleeding obvious that there should be no blanket prohibition on hearsay, but that it may be appropriate in some circumstances to render it inadmissible generally by discretion of the judge. The principle is as set out above, that there are situations where the evidence may be more persuasive to a jury than is warranted – but that’s a judgement that is a big call – since juries are supposed to be safeguards and so on, one ought generally to be able to warn them of the risks.
As it is, the rule against hearsay operates like a kind of loose canon, removing evidence from the court in some cases (where the plethora of exceptions aren’t operative) and allowing it in others. The worst case I know of, was an appeal to the Privy Council from Jamaica in around 1960. I thought the case was called R v Spark or R v Sharp, but I can’t find it on a quick search. Anyway, from memory, a young girl was raped and subsequently died and a black man was accused. The girl said before she died that it was a white man what did it. But that was inadmissible. Because she couldn’t be cross examined on the evidence. Clever huh? Can’t let the principle of the accused getting the benefit of the doubt or the court getting to the truth get in the way of a rule now can we – not if there is no exception to the rule in previous cases.
