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Copyright (c) 1992 Minnesota Law Review
Minnesota Law Review

Researching the Hearsay Rule: Emerging Findings, General Issues, and Future Directions.

February, 1992

76 Minn. L. Rev. 655


Richard F. Rakos * and Stephan Landsman **



In recent years, scholars applying social science to the law have sought to test a wide array of legal assumptions empirically. Researchers working on evidentiary issues have provided data about the use of prior convictions, 1 coerced confessions, 2 eyewitness identifications, 3 expert testimony, 4 post-hypnotic testimony, 5 and judicial limiting instructions. 6 The hearsay rule has been notably absent from the list of topics studied. This exclusion is particularly striking in light of John Henry Wigmore's assertion that hearsay is the "most characteristic rule of the Anglo-American law of evidence." 7 Why has the hearsay rule been ignored as a subject of investigation?

One possibility is that the absence of hearsay research is simply a function of the limitations of an emerging discipline. Another possible explanation is a lack of legal sophistication among researchers. However, one of the major justifications for the hearsay rule -- that hearsay compromises the fairness of a trial -- suggests a third possibility. In a recent article in Law and Human Behavior, Gary Melton suggested that the social-science-in-law movement is scientifically conservative but politically liberal. 8 Unlike the evidentiary rules that experimenters have investigated, the hearsay rule appears to protect a defendant from the power of the state. Therefore, critical examination of the rule may have seemed less attractive to social scientists. 9 Hesitating on this basis to scrutinize hearsay is unwarranted, both because its impact on the fairness of a ...
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