I am sorry I did not manage to comment on this earlier; I did not suspect it would get promoted.
In short, your treatment of hearsay, and how the legal system addresses it, is simply wrong. Most of what you talk about is actually about the Confrontation Clause. I don’t know if this is due to an intentional simplification of your examples, but the cases you use just don’t work that way.
The main case you talk about, Davis v. Washington, is not a case about hearsay; just look at the wikipedia summary. It is a case about the confrontation clause. This is a clause that says that those accused of crimes have the right to confront the witnesses against them; if someone talks to the police under certain circumstances, that testimony may not be entered. It does not matter how reliable it is. See Crawford v. Washington. The “indicia of reliability test” was abandoned in Crawford, because it was completely circular—it was compared to doing away with a jury trial because the defendant was obviously guilty.
More generally, there is almost never a balancing test in hearsay. Hearsay is a series of rules that are applied systematically. Out of court statements are considered unreliable principally because the declarant is not under oath; there is no particular reason to believe they were being truthful. There is a series of rules that allow certain statements in for this purpose. The idea behind these rules is that they indicate the evidence is reliable. However, they operate purely formalistically: if something someone said was a statement for the purpose of medical diagnosis, it is admissible hearsay, even if the circumstances strongly demonstrate they were lying. The jury is permitted to figure that out.
The basic idea behind hearsay, and indeed behind evidence law generally, is that certain statement are more likely to mislead the jury than to aid in finding the truth. However, your whole discussion of “indicia of reliability” seems to me to address an obsolete doctrine on the Confrontation Clause. Hearsay, in the vast majority of circumstances, does not involve any kind of balancing test or similar determination. It either meets a rule, or it doesn’t (though there is catch-all rule that gives the court some discretion—it can actually be somewhat problematic, because courts often get things wrong).
As to the issue of double hearsay—which I am used to hearing referred to as “hearsay within hearsay,” a per se rule against a certain number of levels doesn’t make a lot of sense. In the example you use, the bottom level of hearsay is very likely inadmissible; that’s enough to keep it out. But the circumstances under which one could admit multi-layer hearsay are pretty limited; it would have to have an applicable exception for every level. You don’t discuss any inadequacies with the exceptions, so I just don’t see why it follows that their repeat application should be unreliable.
I don’t know if this is due to an intentional simplification of your examples
Yes, it is. Lawyers and judges have a tendency to invent dozens of fuzzily overlapping concepts without even considering whether one or two concepts could do just as much useful intellectual work. I could tease out the difference between testimonial and nontestimonial evidence, assertions and non-assertions, matters offered for the truth of the matter asserted, matters offered for other purposes, matters pretextually offered for other purposes, matters honestly offered for other purposes but with an unacceptable tendency to prejudice the jury...but I’m not writing a law review article; I’m writing a Less Wrong post. I tried to focus on what I thought the audience would find relevant.
What interests me here is the distinction between the truth of evidence (does the content of this document describe reality?) and the reliability of evidence (would we ordinarily expect documents like this one to describe reality?). Anything further would be an explanation of the law for its own sake.
Davis v. Washington, is not a case about hearsay; just look at the wikipedia summary. The “indicia of reliability test” was abandoned in Crawford.
Give me a little credit, here; don’t you think I looked at the Wikipedia summary before publishing the post? I also linked to Michigan v. Bryant, a newer Supreme Court case which extensively discusses Crawford. I think the cases I linked to provide a discussion of evidentiary reliability that illustrates some important Bayesian concerns. Whether every doctrine in every case I cite is still good law is not really the point.
Hearsay, in the vast majority of circumstances, does not involve any kind of balancing test or similar determination.
I may not have been clear on this point—I’m not claiming that judges weigh evidence to see if it should be considered hearsay. Rather, the very process of determining whether evidence is hearsay appears to be designed so as to indirectly prompt judges to weigh whether evidence is reliable. By systematically applying the rules about what counts as hearsay, judges consciously or unconsciously wind up admitting only evidence that the system views as reliable. If you like, we could say that the people who write the laws of evidence in the first place are the ones who perform the actual balancing test.
The issue is that Confrontation clause != hearsay. Confrontation rights belong to criminal defendants only, while hearsay is an issue in any trial. As you note, hearsay is conceptually a reliability indicator, while Confrontation clause analysis is trying to determine when the government must go through the time and effort to produce a witness at the actual trial.
In general, criminal defendant rights are not well correlated with reliability. For example, suppression of illegally obtained evidence is anti-correlated with accuracy. This piece makes a good point about chaining evidence. As a lawyer, I thought the piece did a great job of highlighting when the legal system does a better job of truth discovery than society as a whole, and the more frequent occurrence when the legal system is just as misguided as ordinary Joe Citizen.
In short, please accept the word of an expert that the discussion under the heading The Hearsay Rule is not about the hearsay rule and is unrelated to the remainder of the excellent piece.
By systematically applying the rules about what counts as hearsay, judges consciously or unconsciously wind up admitting only evidence that the system views as reliable.
More accurate would be to say that they wind up excluding only evidence that the system views as unreliable. Whether the evidence is reliable is always the jury’s call—a point I don’t think a quibble because hearsay rules are designed to exclude certain unreliable evidence: that which has particular potential to confuse the jury.
From a rationalist perspective, then, you need to consider not only whether multiple levels of hearsay, admissible at each step, tend to confuse the jury or whether, on the other hand, the jury can competently evaluate the noisiness of the evidence’s transmission. I don’t think multiple levels of admissible hearsay have much credibility with jurors; I think the transmission chain is readily subject to effective attack by the defense. (Every child has played the telephone game.) But here is where considering biases would have been fruitful (and necessary to your thesis).
It isn’t enough to prove chains of hearsay are unreliable. Many kinds of evidence are admitted despite their unreliability: say, the testimony of a witness who’s a known habitual liar. The problem for any rule of admissibility is to weigh the risk of the jury being mislead. Unless you can show the jury is unfit to discount multiple levels of hearsay—with the help of a competent adversary—the proposal is tantamount to having juries base their conclusions on less information than they would otherwise use. Since both parties are subject to the same hearsay rules, it could mean being unable to exonerate a defendant with sound evidence based on multiple levels of hearsay, merely because in general multiple levels of hearsay tend to suffer reduced reliability.
I agree that the Supreme Court cases are not on point, but the discussion of chains of evidence is worth thinking about. If we accept hearsay exceptions based on reliability (and I think exceptions for things like business records have little other justification), then hearsay within hearsay is perhaps not treated correctly. Once evidence is admitted, it is admitted—the judge doesn’t instruct the jury to give less weight to hearsay within hearsay.
But probability says that if business records are 80% reliable, and present sense impressions are 70% reliable, a business record that is based on a present sense impression is 56% reliable (if I did the math right). That’s unintuitive to the jury, and the legal system makes no effort to correct for this misunderstanding of statistics.
Edit:
And the description of the judge sifting out evidence is a good explanation for non-lawyers.
But probability says that if business records are 80% reliable, and present sense impressions are 70% reliable, a business record that is based on a present sense impression is 56% reliable (if I did the math right).
Well, .7*.8=.56, certainly, but personally I would not be so casual about assuming that the two failure rates are independent.
I am sorry I did not manage to comment on this earlier; I did not suspect it would get promoted.
In short, your treatment of hearsay, and how the legal system addresses it, is simply wrong. Most of what you talk about is actually about the Confrontation Clause. I don’t know if this is due to an intentional simplification of your examples, but the cases you use just don’t work that way.
The main case you talk about, Davis v. Washington, is not a case about hearsay; just look at the wikipedia summary. It is a case about the confrontation clause. This is a clause that says that those accused of crimes have the right to confront the witnesses against them; if someone talks to the police under certain circumstances, that testimony may not be entered. It does not matter how reliable it is. See Crawford v. Washington. The “indicia of reliability test” was abandoned in Crawford, because it was completely circular—it was compared to doing away with a jury trial because the defendant was obviously guilty.
More generally, there is almost never a balancing test in hearsay. Hearsay is a series of rules that are applied systematically. Out of court statements are considered unreliable principally because the declarant is not under oath; there is no particular reason to believe they were being truthful. There is a series of rules that allow certain statements in for this purpose. The idea behind these rules is that they indicate the evidence is reliable. However, they operate purely formalistically: if something someone said was a statement for the purpose of medical diagnosis, it is admissible hearsay, even if the circumstances strongly demonstrate they were lying. The jury is permitted to figure that out.
The basic idea behind hearsay, and indeed behind evidence law generally, is that certain statement are more likely to mislead the jury than to aid in finding the truth. However, your whole discussion of “indicia of reliability” seems to me to address an obsolete doctrine on the Confrontation Clause. Hearsay, in the vast majority of circumstances, does not involve any kind of balancing test or similar determination. It either meets a rule, or it doesn’t (though there is catch-all rule that gives the court some discretion—it can actually be somewhat problematic, because courts often get things wrong).
As to the issue of double hearsay—which I am used to hearing referred to as “hearsay within hearsay,” a per se rule against a certain number of levels doesn’t make a lot of sense. In the example you use, the bottom level of hearsay is very likely inadmissible; that’s enough to keep it out. But the circumstances under which one could admit multi-layer hearsay are pretty limited; it would have to have an applicable exception for every level. You don’t discuss any inadequacies with the exceptions, so I just don’t see why it follows that their repeat application should be unreliable.
Yes, it is. Lawyers and judges have a tendency to invent dozens of fuzzily overlapping concepts without even considering whether one or two concepts could do just as much useful intellectual work. I could tease out the difference between testimonial and nontestimonial evidence, assertions and non-assertions, matters offered for the truth of the matter asserted, matters offered for other purposes, matters pretextually offered for other purposes, matters honestly offered for other purposes but with an unacceptable tendency to prejudice the jury...but I’m not writing a law review article; I’m writing a Less Wrong post. I tried to focus on what I thought the audience would find relevant.
What interests me here is the distinction between the truth of evidence (does the content of this document describe reality?) and the reliability of evidence (would we ordinarily expect documents like this one to describe reality?). Anything further would be an explanation of the law for its own sake.
Give me a little credit, here; don’t you think I looked at the Wikipedia summary before publishing the post? I also linked to Michigan v. Bryant, a newer Supreme Court case which extensively discusses Crawford. I think the cases I linked to provide a discussion of evidentiary reliability that illustrates some important Bayesian concerns. Whether every doctrine in every case I cite is still good law is not really the point.
I may not have been clear on this point—I’m not claiming that judges weigh evidence to see if it should be considered hearsay. Rather, the very process of determining whether evidence is hearsay appears to be designed so as to indirectly prompt judges to weigh whether evidence is reliable. By systematically applying the rules about what counts as hearsay, judges consciously or unconsciously wind up admitting only evidence that the system views as reliable. If you like, we could say that the people who write the laws of evidence in the first place are the ones who perform the actual balancing test.
The issue is that Confrontation clause != hearsay. Confrontation rights belong to criminal defendants only, while hearsay is an issue in any trial. As you note, hearsay is conceptually a reliability indicator, while Confrontation clause analysis is trying to determine when the government must go through the time and effort to produce a witness at the actual trial.
In general, criminal defendant rights are not well correlated with reliability. For example, suppression of illegally obtained evidence is anti-correlated with accuracy. This piece makes a good point about chaining evidence. As a lawyer, I thought the piece did a great job of highlighting when the legal system does a better job of truth discovery than society as a whole, and the more frequent occurrence when the legal system is just as misguided as ordinary Joe Citizen.
In short, please accept the word of an expert that the discussion under the heading The Hearsay Rule is not about the hearsay rule and is unrelated to the remainder of the excellent piece.
More accurate would be to say that they wind up excluding only evidence that the system views as unreliable. Whether the evidence is reliable is always the jury’s call—a point I don’t think a quibble because hearsay rules are designed to exclude certain unreliable evidence: that which has particular potential to confuse the jury.
From a rationalist perspective, then, you need to consider not only whether multiple levels of hearsay, admissible at each step, tend to confuse the jury or whether, on the other hand, the jury can competently evaluate the noisiness of the evidence’s transmission. I don’t think multiple levels of admissible hearsay have much credibility with jurors; I think the transmission chain is readily subject to effective attack by the defense. (Every child has played the telephone game.) But here is where considering biases would have been fruitful (and necessary to your thesis).
It isn’t enough to prove chains of hearsay are unreliable. Many kinds of evidence are admitted despite their unreliability: say, the testimony of a witness who’s a known habitual liar. The problem for any rule of admissibility is to weigh the risk of the jury being mislead. Unless you can show the jury is unfit to discount multiple levels of hearsay—with the help of a competent adversary—the proposal is tantamount to having juries base their conclusions on less information than they would otherwise use. Since both parties are subject to the same hearsay rules, it could mean being unable to exonerate a defendant with sound evidence based on multiple levels of hearsay, merely because in general multiple levels of hearsay tend to suffer reduced reliability.
I agree that the Supreme Court cases are not on point, but the discussion of chains of evidence is worth thinking about. If we accept hearsay exceptions based on reliability (and I think exceptions for things like business records have little other justification), then hearsay within hearsay is perhaps not treated correctly. Once evidence is admitted, it is admitted—the judge doesn’t instruct the jury to give less weight to hearsay within hearsay.
But probability says that if business records are 80% reliable, and present sense impressions are 70% reliable, a business record that is based on a present sense impression is 56% reliable (if I did the math right). That’s unintuitive to the jury, and the legal system makes no effort to correct for this misunderstanding of statistics.
Edit: And the description of the judge sifting out evidence is a good explanation for non-lawyers.
Well, .7*.8=.56, certainly, but personally I would not be so casual about assuming that the two failure rates are independent.