Abstract

This article attempts to construct a theory of the common law hearsay rule. The hope is to expose the values which it embodies. The theory will explain the role of the rule in the inferential process and will try to justify its operation. The rule is commonly analysed in terms of 'reliability'. But it will be argued in this article that the hearsay rule is more correctly seen as being based on two related conceptions of fairness. The rule seeks to avoid, first, the unfairness to the opponent of assuming that the absent declarant would have come up to proof if she had testified, and, secondly, the unfairness of prejudicing the opponent by the production of evidence without giving her the opportunity to erase that prejudice. The implications of the theory will be explored. The article will discuss what the law on hearsay evidence ought to be on the present theory