The rule against hearsay has long been one of the most distinctive elements of the common law of evidence, and indeed— except for recent changes on the civil side in many jurisdictions— of the common law system of trial. Observers have long believed that the rule, like most of the other exclusionary rules of the common law of evidence, is "the child of the jury system". Though Edmund Morgan argued vigorously to the contrary, the received understanding is that the jury's inability to account satisfactorily for the defects of hearsay explains the rule. A famous, and perhaps seminal, expression of this view was that of Chief Justice Mansfield in Re Berkeley: "[I]n England, where the jury are the sole judges of the fact, hearsay is properly excluded, because no man can tell what effect it might have upon their minds".
Publication Information & Recommended Citation
Friedman, Richard D. "No Link: The Jury and the Origins of the Confrontation Right and the Hearsay Rule." In "The Dearest Birth Right of the People of England": The Jury in the History of Common Law, edited by J. W. Cairns and G. McLeod, 93-100. Portland, Oreg.: Hart Pub., 2002.