Document Type

Article

Publication Date

1998

Abstract

In this paper, I will look at the problem of hearsay and confrontation through the lens offered by this symposium's theme of "truth and its rivals." I will ask: To what extent does the law of hearsay and confrontation aspire to achieve the goal of truth in litigation? To what extent does it, or should it, seek to achieve other goals, or to satisfy other constraints on the litigation system? And, given the ends that it seeks to achieve, what should the shape of the law in this area be? My principal conclusions are as follows: In most settings, the law of hearsay should be concerned nearly exclusively with achieving the goal of truth determination, subject to constraints related to the cost of litigation. For the most part, the current law of hearsay does a poor job in this respect and even is sometimes counterproductive. In one setting of great importance, what I will call the confrontation setting, the law in this area has a great service to perform. That service-protecting the conditions under which testimony against an accused is taken-bears some relation to truth determination but is not dominated by it and has very little to do with cost considerations. In this context, the United States Supreme Court has generally been insufficiently protective of the accused's rights, regarding hearsay law as an old-fashioned nuisance that must be tolerated to a minimal extent but that should be kept firmly in its place. To provide some groundwork for my discussion of hearsay topics, I will address rather briefly the general theme of "truth and its rivals."