Albuquerque evening herald. [volume] (Albuquerque, New Mexico) 1911-1914, 1912-07-18
The ArtificinIity of
the Hedrsay Rule

ny "a. Is. sami-oA

The following paper. by u. u. jam
ison, assistant district attorney in the
second district. was read al recent
meeting OF the Bernallllo County bar
association. The paper ~ well pre-
pared from a local standpoint and Is
the result OF considerable research on
the part of tho author. Doubtless the
discussion will be OF much interest 10
the members OF the bar throughout
the state and also TO laymon Interest,"
ed In the workings OF the law. The
paper follows:
There IL practically no lawyer In
the United states 30 unframed OF 80
ignorant that he knows nothing OF
that terror 10 the Inexperienced trial
Judge. our hoarsny rule, but tho
statement IA not far aslcld which Inn
parts 10 as the information that not
fifteen per cent OF the oar or the
United states know that our hearmy
rule. as u II applied. 10 hybrid. a
creature OF Anglo-Saxon iuFispru-
dence. Practically every one who
read the accounts OF the Dreyfus trial
In Paris will remember the large and
important amount Of hearsay evidence
member OF the bar could hardly have
failed 20 have been impressed imme-
diately by the fact that large por-
ton Of tho evidence there introduced
w6aid have been lnadhfsssbie In this
country
This hearpay rule IL simply one
survival OF our old common.law dis
qualification OF witnesses. and the
reasons for its birth must be traced
20 the character Of our old juries.
when the English oommon-law was
being created. the jury was a body OF
men taken from the nolghborh0od. In
fact, Just a body OF nelghbors OF the
men whose cause was being tried. IL
was the duty Of these neighbors 10
tell the Judge what they knew about
the case. either nom their own know
ledge or from the Information they
had received from the common talk
about tho matter In the community.
or tho common talk handed down 10
tnem by their f0refathers. n any
wItnoss outside the jury were called.
he was considered comparatively UNI
important, because the jury was there
20 perform its function OF drawing AL
differences from the facts that the
community knew, and these outside
witnesses couit 90 Of sorvire only BY
telling something that the community
IN general did not know. For this
reason. tho scope Of their testimony
was neccnsartly very narrow. IL any
body had told them anything. u wnn
very probable that thie Same news
giver had told u 20 somebody else.
who had reported Il 10 some man who
sat on the jury. and there wnr no
necessity for hiSn 70 testify % heArHay.
IL there wa8 sn Inference 20 be drawn.
tbs man on the jury WIS considered
% be much better informed than the
witness shout the facts Of tao casa.
and could draw an inference in a
much more cOsupetent manner than
the witness
FOR the same reason. The parties 10
suit. OF their Immediate relatives.
were disqualified from testlfylng. boz
cause. n they had any special lnfor-
nation 80 give. they had already
given Il 10 the men who mgt on the
Jury, and there was no necessity that
they should testify In court When,
however. the o0mmon-lnw commence
cd 10 develop, ~ progress Waa rapid.
and che time soon -une when thu
Jury was composed 81 men vino were
presumed 10 know nothing or tho
facts 81 the case before they Bnt "a
the trial, and, a. al prnneni, wero dla,
qualified Il fhay hnb proeontelved
opinion which u nDnid 4ake material
eviueslce 10 remoVe Our auelenl Jaw
EfyoFo or the nen4h ipnnedisfoiy Raw
that ailin would ahaehttls Sc Inn
possible III q tof5 large pefuonlaee 81
eaaeB II the parties we're aIHnuuIlaet
from teBHfyinR. for the reason that
nobody else weuId knaN matn hOout
tho case. and upon Or cohMontiaN
was therefore inDedlatnly onNEafie0
the exception that parties % an action
should BE- allowed % testify. and that
the weight of thelF testimony ahoslo
BE- Z mntter Cor ths Jury.
About ihe middle o. she nlneleenth
century. when these chanaes were Tor
tlt most part taking place. 4 wao olpn
seen that thp abpulule exclusion "a
heafnay testimony operated 10 defeat
Justice ~ 4 great mary cases, AZ
lliai dime The iudeee u q century a4l
felt that u was necaHaafs 70 make
nome exceptions 50 the heafaay Fhit
ana tn1t aeroldlnalv DECLARED fAal 4
WiEns.t Nho |AutW ere llea d con.
foVtfy Ast dead, lngan4 ~ out 81
llio jurisdiction "A the lIina % tll|
trial. lhGt would allow ~ ANfnifaatl'
leesimQny ne o3ldpnee given GA = fov