Hackneyed Thinking about the Hearsay Rule

The New York Times reports that the Obama administration is considering preserving the military commissions in some form. Part of the motivation for that, it is said, is this: "Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies."

It is unfortunate that we have not yet drawn the right lessons from the Guantanamo-Military Commission experience. One of the notions held by the Bush administration people who set up the commissions was that judges, courts, lawmakers, etc., are naive in their treatment and distrust of hearsay evidence. Like first year law students (and many of their teachers blissfully unburdened by any on-the-ground experience in law enforcement or criminal justice), these "reformers" were bold and believed that any rational dummy knows that hearsay evidence is often worth quite a lot.

What our experience with the commissions should teach us is that hearsay evidence is often worth very little and that its use in adjudication presents serious problems. Any dummy who has just a bit of experience in investigation and litigation should know that. It is not easy to figure out how to sort hearsay wheat from hearsay chaff. But it is important to make the effort. Otherwise we will continue to have imprisonment for years on end on the word of the legendary Afghan goat herder resentful of his neighbor and eager for economic self-advancement.

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