My goal in this paper is to argue that the principled approach to hearsay is consistent with the rule of law. I begin by contrasting an instrumental conception of the rule of law with a conception that views the rule of law in primarily normative terms. I then turn my attention to a recent criticism of the Supreme Court of Canada’s principled approach to hearsay and suggest that if Michael Oakeshott’s normative interpretation of the rule of law is (...) adopted, there is no tension between the principled approach to hearsay and the rule of law. (shrink)

In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of juror bias, (...) admitting universal admissibility would be the best policy for an ideal jury. This article uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact finders’ more common epistemic capabilities push the epistemic context of the trial toward one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards. (shrink)

Evidentiality refers to the linguistic marking of the nature/directness of source of evidence of an asserted event. Some languages (e.g., Turkish) mark source obligatorily in their grammar, while other languages (e.g., English) provide only lexical options for conveying source. The present study examined whether or under what conditions firsthand source information is relied on more than nonfirsthand sources in establishing discourse coherence. Turkish- and English-speaking participants read a series of somewhat incongruous two-sentence narratives and were to come up with a (...) way of completing each narrative so that it would form a coherent story. Each narrative contrasted two source types (firsthand vs. hearsay, firsthand vs. inference, or inference vs. hearsay) and two information types (general vs. particular information) each presented first or second. Analysis of story completions showed greater overall reliance on firsthand information when it was presented second and referred to a particular event. When the firsthand source occurred first and the particular event occurred second, the latter was favored, especially by Turkish participants. Taken together, the findings suggest that evidentiality interacts with information type in establishing discourse coherence and that both firsthand and particular information are relied on more when presented later rather than earlier in discourse. (shrink)

Praised for its reliance on observation rather than myth, the Milesian school signals the dawn of science in the West. Whereas Hesiod appeals to the long ago and far away to explain the here and now, Thales and his cohorts do the reverse. In this reversal, we are their thankful, even faithful heirs. But with Hesiod not everything is myth and hearsay. Indeed, Hesiod singles himself out by name as the bearer of a powerfully poetic and distinctly human wisdom (...) that he consistently contrasts with Zeus’ divine wisdom. In this article, the author argues that the Milesians attempt to gain access to divine wisdom, and thus disregard the ambiguities characteristic of human wisdom. One sees this especially in a tension between Thales’ political wisdom and natural philosophy, and later between Anaximander’s cosmology and cosmogony. The author concludes that Heraclitus appears to have been the first thinker to confront the Hesiodic worldview on its own terms, inasmuch as his attempt to bridge the divide between divine and human wisdom always keeps one eye on the ambiguities that pervade human experience. (shrink)