Anchoring the Law in a Bed of Principle: A Critique of, and Proposal to Improve, Canadian and American Hearsay and Confrontation Law

Article excerpt

Abstract: As recent case law demonstrates, both American Sixth Amendment Confrontation Clause jurisprudence and Canadian common law relating to hearsay evidence are conceptually problematic. The laws are, at times, internally incoherent and are difficult to justify on the basis of legal principles. This Article critiques confrontation and hearsay law in the United States and Canada, respectively, by exposing the lack of principle underlying each body of law. The Article develops a principled basis for evidence law in general, and hearsay and confrontation law in particular, providing a more stable foundation for hearsay and confrontation frameworks. Ultimately, the Article argues that the epistemic, truth-seeking goal of criminal evidence law is best served by the broad admission, rather than exclusion, of all hearsay evidence. Furthermore, while fairness concerns are relevant to some rules of evidence, there are no valid fairness concerns operating in the context of hearsay and confrontation law that should displace the primary principle of facilitating and promoting epistemically accurate fact-finding in criminal trials. Finally, this Article suggests that any dangers associated with the broad admission of hearsay evidence can be mitigated through effective argument by counsel and appropriate cautions to the trier of fact regarding any weaknesses inherent in the evidence.


In many developed legal systems, the right of an accused person to confront witnesses against him in criminal proceedings arises out of ei- ther the system's constitutional jurisprudence or explicit texts of rights instruments.1 The right also exists within various international human rights treaties.2 There is, however, no universal acceptance of the content of one's right to confront witnesses.3 Accordingly, throughout the world, the rules governing the admissibility of hearsay evidence and the cross- examination of witnesses, the various rights to confront witnesses, and the broader rights of a criminal defendant to test the prosecution's evi- dence and to benefit from a fair trial have become so conceptually en- tangled that it is difficult to discern a coherent unifying theory-or a principled basis-underlying the application frameworks for each of these doctrines.4 In other words, the laws relating to confrontation rights are an cxamnle of what Mirian Damaska miiriil call "evidence law adrift,"5 where the term "adrift" in nautical circles means a vessel that is neither deliberatelv making wav through the water nor at anchor or made fast to the shore.6 As the laws of confrontation continue to de- velop on an arguably ad hoc basis, it is apparent that the law is neither at anchor (static), nor making way (progressing in a clearly articulated di- rection).7 The doctrinal confusion surrounding confrontation rights provides the backdrop to this Article and represents the key mischief that this Article endeavors to address.

In Parts I and II of the Article, I analyze the ways in which confron- tation rights are described and protected in the United States and Can- ada in order to ascertain whether these doctrines are internally coher- ent, and whether they are convincingly justified on the basis of relevant legal principles. As the analysis in these sections will demonstrate, the law of confrontation in both Canada and the United States is problem- atic for a variety of reasons-in large measure because each body of law appears to have developed without faithful adherence to unifying prin- ciples. In Part III, I develop a theoretical basis of first principles that can be used to drive the evolution of evidence law, and I will suggest how these principles can be instructive in determining how hearsay ev- idence should be treated within a criminal trial. My goal in Part III is to propose a theoretically defensible and internally coherent framework for the application of evidence law to the "confrontation" rights of an accused person facing criminal charges in any developed legal system. …