Testing Tribe’s Triangle: Juries, Hearsay, and Psychological Distance
Citation: 103 Geo L.J. 879 (2015)
Since its inception, evidence policymakers have vacillated with respect to whether the rule barring hearsay evidence at trial is a doctrine designed to promote decisional accuracy or a doctrine designed to promote procedural justice. To the extent that policymakers view the rule barring hearsay evidence as promoting decisional accuracy, the rationale for this view stems from the “testimonial triangle” promulgated by Professor Laurence Tribe, which conceptualizes the objections to hearsay evidence at common law. Tribe’s testimonial triangle states that (1) several infirmities lurk behind all testimony provided in court, and (2) testimony based on hearsay is subject to two sets of infirmities—those of the in-court witness and those of the original declarant. With respect to hearsay evidence, policymakers fear that jurors do not attend appropriately to the infirmities of the original declarant—who is not subject to in-court crossexamination—and will give hearsay evidence undue weight. . . .