But I am not so sure that the hearsay rule deserves all the scorn that Professor Sklansky heaps upon it. I keep thinking of prisoners in Guantanamo who may be held there on the strength of an absent U.S. soldier's statement that some village elder in Afghanistan told the soldier, through an absent interpreter, that some member of the village had brought the detainee, a goatherd, to the elder after the village member heard, he said, the goatherd say, "I have killed Americans in this holy war." Confrontation aside, is there reason to think that such evidence is likely to be so unreliable that not even a military commission should consider it?
But to give Sklansky his due, he does seem to think that a hearsay rule that works largely as a rule of preference makes some sense. But suppose the village elder, the translator, the member of the village, and the goatherd are now all dead -- as a result of the war in Afghanistan.But perhaps Sklansky would approach the goatherd problem by analyzing whether the Guantanamo detainee has an adequate opportunity to challenge the evidence against him. I'm not sure how Sklansky would attack the goatherd problem. Perhaps I will re-read the article in an attempt to find out. (I only skimmed his article and perhaps he addresses my question.)