The synthesis of hearsay and precedent
When the doctrine of precedent and the rule of hearsay are merged into a single mode of jurisprudence, they form the synthetic doctrine of linguistic hearsay. This legal synthetic is then applied to the following question: Can the linguistic hearsay rule be applied to statutory interpretation in a way that is beneficial to individuals faced with the task of interpreting a statute? The answer to this question depends in large measure on how conscientiously the practitioner applies the linguistic hearsay rule. As the following discussion will demonstrate, when applied correctly, the linguistic hearsay rule provides an intellectually derived legal construct from which to decide the appropriate interpretation of the statue.
The linguistic hearsay rule is based upon the tenets of the rule against hearsay. When the factors upon which reliability of witness’ testimony depends (perception, memory and narration) are transposed on the doctrine of precedent, the strengths and weaknesses of the varying degrees of precedent become apparent.
The discussion of the synthesis of hearsay and precedent can be broken down into two areas: (1) perception and narration and (2) memory.
Though analyzed separately, the two are indivisible intertwined. As one commentator put it, “[M]emory does not exist without perception and there is no psychologically meaningful perception without memory.”
The rule against hearsay recognizes that particular types of evidence or information are less reliable than others to the resolution of the questions presented in a legal case. By excluding the unreliable evidence, the legal system is striving to ensure that the decision reached is the correct one. Though the doctrine of precedent does not at first seem to share any common ground with the rule against hearsay, two similarities are reveled upon further inspection. Substantively, both rules are about assuring the continued well-functioning of the truth-seeking mission of the legal system. Procedurally, they are both aimed at limiting the amount of information that the trier of fact (be it judge or jury) may consider when deciding the case.
Beyond this, other similarities and dissimilarities are revealed. The jurisdiction for limiting the testimonial evidence revolves around the veracity of the witnesses account. The justification for the doctrine of precedent revolves around the issue of social stability. Though these justifications are different, the two doctrines are not as philosophically discordant as they may initially appear. One of the primary goals in a judicial system is to maintain a just and stable society, and both have, as their result, the furtherance of these goals. In concluding that the presentation of evidence by one party against the next is the best possible way to structure a trial court procedure, the limitation of hearsay statements exemplifies a legal system whose central purpose is to assist in maintaining a stable, well ordered, and when possible, just society.
Although the substantive justifications in the doctrine of precedent are readily apparent, its procedural purpose is not as easily perceived. The similarities are evident, however, if one looks to the ultimate goal of the legal system – a goal which has as one of its socio-political foundations the determination that maintaining legal precedent further the stability of a legal system by promoting fairness, predictability, and judicial efficiency into American society. The process by which these time honored goals are achieved may be substantive by design, but the process is procedural in application. Without firmly grounded procedural precepts, the end could not be attained. The doctrine of precedent’s utilitarian purpose is ultimately procedural in nature – not unlike the hearsay rule.
In order to further the substantive goals, the legal system has determined that once a case has been decided, an exploration into the equities of a later case with similar facts need not be considered at trial. The legal system thereby employs a procedural device to sustain and/or further a substantive justification. In concluding that there are particularly strong justifications for retaining the rulings of a precedent court, the legal system disallows the reintroduction of legal arguments that were struck down in the precedent court’s opinion. As one can observe these two theses are not that far apart after all; and thus the benefits which attach to the legal system from the introductions of the linguistic hearsay is readily apparent. The rule against linguistic hearsay subjects earlier court decisions to the same exacting scrutiny imposed on other out-of-court statements. The rule’s overarching concern for truthfulness and reliability manifests itself in the assurance that the present court’s opinion does not suffer from diminished probity. In the end, the linguistic hearsay rule provides for a more structured method of deciding case.
However, for this to happen, all parties must understand that linguistic hearsay rule is not taking a difficult subject and yet adding another layer of dense jurisprudential philosophy upon it. Rather, it is taking a few tried and true evidentiary principles and applying them in a different manner. The linguistic hearsay rule allows the judge to look at the case with complete philosophical objectivity. By relying on the linguistic hearsay rule, the judge bases his interpretation of a statute solely on a system of jurisprudence that has, as its only goal, the dispensation of a legal result tailored to the participants at the bar.
Moreover, the linguistic hearsay rule is not ideologically dependent or prejudiced towards any of the particular schools of jurisprudence. Its sole concern is with the prior determination of the interpretation of a statute. By fashioning tools to aid in its “truth-finding” mission (such as cross-examination), the probability that the linguistic hearsay rule will accomplish this mission is greatly increased. The linguistic hearsay rule is useful precisely because the heuristic standard by which memory, perception, and narration are compared, provides a greater degree of truth in the outcome of the trial than would a rigid non-analytical method of precedent-bound statutory interpretation.
If the linguistic hearsay rule is applied to precedent, it would most certainly have a profound impact. Since the doctrine of precedent is premised on stability, the introduction of this concept would throw our legal system into temporary disarray. The author submits, however, that it would be disarray that is more procedural than substantive, more instructive than apocalyptic. The linguistic hearsay rule does no more than recharacterize the use of precedent in statutory interpretation and provide an analytical construct to assist some of the scholastic criticism that surrounds statutory interpretation. This process of jurisprudence could be quickly assimilated into our legal system due to its familiar substantive, if not procedural, elements. The linguistic hearsay rule does not seek to denigrate the historicity of the doctrine of precedent, rather it criticizes the historicism of its continued use.
Admittedly, the synthesis of two ostensible disparate legal devices may be so fraught with difficulties that it is ultimately discredited. On the other hand, it may well provide the basis for another doctrine vantage point. If the former should come to fruition, then surely our legal system is better off. The above analysis is intended to provide another analytical tool in the ongoing processes of statutory interpretation. No matter what decision is ultimately reached, the fact that a new analytical perspective has been discovered will inhere to the benefit of our legal system.
Tags: city of, degree, doctrine of precedent, hearsay rule, jurisprudence, legal case, narration, school, schools, single mode, statutory interpretation, types of evidence, unreliable evidence, witness testimony