Hearsay,Bad Character and Trust in the Jury: Irish and English Contrasts

Abstract

This article will consider the extent to which the exclusionary common law rules relating to hearsay and bad character, which existed for hundreds of years in England and Wales and still apply in Ireland, were informed by distrust of jury capabilities. The article will focus on this discrete issue, as opposed to conducting a wide-ranging critique of the relevant rules. It will be demonstrated that the rationales for the radical reform of these rules in England and Wales were partly couched in terms of increased faith in juror competence. The exclusionary rules relating to hearsay and bad character in Ireland and the reformed English law, which is inclusionary in effect, will be analysed in light of empirical jury studies examining the ability of jurors to evaluate these two types of evidence. The capacity for different approaches to certain types of evidence to reflect varying conceptions of the jury and its perceived competence is a central theme of this article, as is the importance of testing juror performance empirically.