Testing Tribe’s Triangle: Juries, Hearsay, and Psychological Distance

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. This Article reports the results of the first empirical examination of the testimonial triangle. The studies reported in this Article suggest that, consistent with behavioral science research on implicit goal activation and psychological distance, jurors are attuned to the testimonial infirmities that lurk beneath hearsay evidence and discount the evidence defensibly. These findings have important implications for the hearsay doctrine, for the contentious debate over juror competency, and for practicing attorneys who make decisions about hearsay evidence at trial. They also provide a theoretical framework for further empirical hearsay research and suggest that policymakers should focus their debate over the hearsay doctrine on the degree to which the doctrine promotes procedural justice, not decisional accuracy.