While responding to a comment on my blog “Why isn’t corporal punishment considered domestic abuse?,” I began thinking about how one might “know” a fact without resorting to hearsay. This is important in making a threshold determination of whether evidence is relevant under the South Carolina Rules of Evidence. Rule 402, SCRE requires evidence to be relevant to be admissible:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of South Carolina, statutes, these rules, or by other rules promulgated by the Supreme Court of South Carolina. Evidence which is not relevant is not admissible.
Rule 401, SCRE, creates a test to determine what is relevant:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
In order to determine whether propounded evidence is relevant, a judge needs to know whether this evidence makes the issue more likely or less likely or has no effect on its likelihood. Typically, there are only three ways we can “know” facts (this blog is not intended to be a philosophical treatise on how we can “know” anything or how we “know” what we think we know): through first hand knowledge; through expert testimony; and through what we have read or been told by others. For example, I know first-hand that Columbia is the capitol of South Carolina, since I’ve been there, but I only know that Tallahassee is the capitol of Florida because I have read that it is; i.e., through hearsay. Despite my first-hand knowledge of South Carolina’s capitol and my hearsay-only knowledge of Florida’s capitol, I am equally confident in the accuracy of both of these facts. It would be very difficult to go through life if we only had confidence in information that we had gained through direct experience.
How can a judge handling a bench [non jury] trial, (all family court trials in South Carolina are bench trials) decide which facts make an action more probable or less probable without resorting to hearsay, which is defined by Rule 801(c), SCRE as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”?
In deciding whether something is relevant, a judge could rely upon personal anecdotal experience. There are important limitations in relying upon such information: bias errors (a judge’s personal biases shape how he or she views experiences); reporting errors (folks are more likely to share their triumphs and hide their failings); sorting errors (a judge who grew up in upper middle class suburbs has different experiences than a judge who grew up in rural squalor); small sample size errors (determinations based upon a small sample size–such as a judge’s personal experience–are more likely to lead to erroneous conclusions than the results from a larger sample size; in fact quadrupling the size of the sample, doubles the accuracy of the information gleaned from the sample).
A judge could require expert testimony to establish whether the propounded fact makes determination of the action more or less likely. I imagine trials would quickly get unwieldy and expensive if we went this route, as almost every fact would require expert testimony to establish its relevance.
Finally, a judge can rely upon what his or she has learned through reading and education or through talking to others and learning what others say on the issue. This is what I suspect most judges do in deciding whether evidence is relevant (with a bit of reliance upon personal anecdotal experience). The problem with this approach is that the judge is relying upon inadmissible hearsay in making this determination and, even worse, is relying upon unacknowledged inadmissible hearsay in making this determination, so that the parties cannot probe how a judge is making this determination.
Facts that a judge “knows” through hearsay are, in theory, not facts that the judge “knows” for the purpose of determining relevance. Getting back to the blog “Why isn’t corporal punishment considered domestic abuse?,” I have read a few studies showing a link between child abuse and domestic abuse. I have read numerous newspaper accounts of such studies. However, I have no first-hand knowledge of this linkage and, even if I did have first-hand knowledge, such knowledge would be highly anecdotal. Assume I represent a wife in a domestic abuse case and I wish to offer evidence that her husband beat their children to support my client’s claim that he beat her: do I need to offer expert testimony on the linkage between child abuse and domestic abuse to establish this testimony’s relevance? If not, am I not relying upon hearsay– studies I’ve read or read about that I assume the family court judge has also read or read about–to establish relevance?
It would be an interesting thought exercise to imagine a trial where each propounded fact’s relevance needed to be established without resorting to hearsay. Even the simplest trial would get ridiculously unwieldy. I have no problem with a system that expects judges to rely upon their hearsay knowledge to determine whether evidence is relevant, but it might be worthwhile if there was a hearsay exception under Rule 803, SCRE, to allow this.