My Dear and Beloved Reader, I need a break. Yes, it’s true. Even indefatigable, un-shut-upable columnists like yours truly get fatigued from time to time. Having this giant copy of the Code of Criminal Procedure strapped to my back the past year of writing Chapter and Verse has done it to me. Sometimes a change is as good as a rest, they say, and so that’s what I seek: change. For these next few columns, I want to switch focus from digging through the CCP to digging through the ROE. Yes, you heard me right, dear friends: first, we’re going to spend a while getting cuddly with Article VIII – Hearsay. Oh, don’t make that face. Deep breaths, we can do this… deep breaths.
We should start in the beginning of this story – which, in the case and of all things evidentiary – is dear John Wigmore. Wigmore, if you don’t remember, was a law professor who spent more than ten years “in monastic study” to produce a massive sketch of the evidentiary landscape. In a 1904 Harvard Law Review article, Wigmore alerts us to the recency of the hearsay doctrine in Anglo-American law. He traced it as something that began in back to the 1500s, but clarifies that it was not really nailed down until the 1700s.1
I know you don’t believe me, dear reader, but the way that this worked out is actually super interesting and I think will illuminate the path for us in the dark nights to come. Historically, before about 1500, a big part of a juror’s role was to educate himself (never herself – because jurors were always men, remember?) about the case as much as possible BEFORE the trial. Yes, you heard me right. They were supposed to go knock on doors and visit people, and ask any questions they deem necessary, and then show up to court and discuss what they had learned with each other and with the judge. Wigmore even cites a 1303 robbery where, the judge asks the sheriff if the jury is ready, and the sheriff replies, “The least informed of them has taken great pains to go up and down in every hole and corner of Westminster—they and their wives—and to learn all they could…”2 (let’s all appreciate that even in 1303, or maybe especially in 1303, wives were considered an important part of effective hearsay-gathering). These were trials where jurors took an active role, and themselves often acted as witnesses. The concept of hearsay, or even, really, any kind of rules of evidence, didn’t make sense in that paradigm.
But as the world became a more crowded place, and as cities in Europe grew, trials became a different spectacle all together. It became increasingly expected, and then requisite for the parties to bring actual evidence to trial. Conversely, and it became increasingly common for the jury to be pulled from a larger group and be less familiar with intimate facts, to as a result, juries began to consider that the evidence presented to them impartially. Eventually, in the mid-1500’s, trial courts were routinely holding that hearsay evidence could only be considered for (as we would put it in modern legalese) “the truth of the matter asserted” when if it was corroborated. The mentality being, it seems, that no shocking revelations should come as a form of gossip.
Today, it seems like pretty common sense that hearsay, by itself, is not sufficient to sustain a conviction. However, that proved difficult under the social norms of the time, but I think it’s also interesting to note that for most of history, all women (and men who were enslaved or indentured) were generally forbidden from of testifying at trials. This makes any case with an alleged female or minority victim particularly difficult to prove without hearsay evidence. For a particularly chilling example of this principle in action, see: occurred in People v. Hall, 4 Cal 399 (1854), (Where the California Supreme Court overturned the murder conviction of a white man who killed a Chinese laborer in front of several Chinese witnesses, finding that because, per the State’s high court, no Chinese persons should be able to give testimony against a white man as a matter of law.)
But I digress… let’s go back for a moment to dear John Wigmore. Painstakingly, he draws connections between the development of hearsay rules. He articulates that not only the way the role of the juror changed, but also, later, the way the role of counsel changed. Wigmore points out that until 1695, defense counsel didn’t do much more than give impassioned arguments for the accused, and only if the accused were even permitted an attorney – and over the next hundred or so years, the role of the “defense lawyer” gradually started to include cross-examining witnesses, as well, which had previously been something the judge or the accused would do himself. 3
This greatly lengthened the average trial, and also began the evolution of “the art and science of cross examination”, which still makes a few worthy practitioners and many unworthy bloviators a lot of money to this very day. As cross examination became a skill practiced by law-trained defense attorneys, the legal theory and reasoning of the hearsay doctrine grew more refined.
So that, my charming correspondents, is the quick and very dirty history of how we have gotten to where we are today. In 1975, the Federal Rules of Evidence were finally codified, and reliance on Wigmore’s (lengthy, historical, and frankly much more lovely and fascinating) traditions of evidence waned. Somewhat unbelievably, Texas did not officially adopt an actual Rules of Evidence to apply to criminal cases until 1986! And didn’t adopt a unified civil and criminal code, such as that we have now wasn’t adopted, until 1997, when your darling Allison was but a babe in arms (or maybe a moody and rebellious teenager, who can be sure?), but still well within the professional memory of many of our esteemed members.
For next time, dear reader, now that we have seen the painful birth of this ROE baby, let’s take a deep breath and turn to TROE 801 (a)-(d). It’s a short reading assignment, but I assure you that it has a lot to unpack. Until then, I remain, as always,