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Abstract
In 1904 Dean Wigmore advanced a new theory regarding the raison d'être for the hearsay rule which continues to exert a significant influence on English and Canadian hearsay reform. Based on his historical work, Wigmore said that the common law judges of the late seventeenth century developed a single rule excluding hearsay evidence. According to Wigmore, these judges began to exclude hearsay because of a perception that the juries used in common law trials tended to overvalue such evidence in the absence of cross-examination. This overvaluation occurred because these untrained and inexperienced jurors failed to fully appreciate the potential sources of weakness in testimonial evidence when it was untested by cross-examination.
Although a handful of scholars have challenged certain aspects of Wigmore's historical claims about the rule, his theory regarding the rule's raison d'être, especially its linkage to the use of lay juries, continues to exert an important influence over the direction that modern reform of the rule is taking under English and Canadian law. Based on a careful examination of historical sources before 1750, this dissertation argues that at different times during the period of 1589 to 1750 different types of hearsay began to be excluded pursuant to the gradual development of seven separate exclusionary rules of evidence. Some of these rules seemed to first emerge in the courts of equity where the triers of fact were professional judges, not lay jurors, thus undermining Wigmore's linkage of the rule to juries. These rules seemed to develop for one of two reasons: (1) the judicially perceived unreliability of certain types of hearsay evidence; and (2) the absence of information perceived as necessary for professional and lay triers of fact to make a proper assessment of the reliability of hearsay evidence. After 1750, these seven rules merged to form the modern hearsay rule.
The argument advanced in the dissertation raises concerns about whether the recent English and Canadian reforms are truly based on the founding principles for the rule. This in turn raises questions about rectitude of decision-making thereby making the argument of both academic and practical relevance.
