Solan on Linguistic Evidentials and the Law of Hearsay @brooklynlaw @OxUniPress

Lawrence M. Solan, Brooklyn Law School, is publishing Linguistic Evidentials and the Law of Hearsay in Philosophical Foundations of Evidence (Oxford University Press, 2020) (forthcoming). Here is the abstract.

This essay, using insights derived from linguistics and the philosophy of language, explores the relationship between how natural language expresses degrees of certainty in the truth of an assertion on the one hand, and how the law handles this issue on the other. The hearsay rule bars certain kinds of speech acts from serving as legal evidence, in particular assertions that report what another person earlier said, and which are offered to express the truth about the events at issue in a case. Some languages actually require that a speaker specify the source of information conveyed. At a trial, the witness will use one expression if he saw the defendant at the relevant time, another expression if he knows this information from having been told, and perhaps a third if he figured it out from the circumstances. Just as English speakers include tense as part of their linguistic expressions, other languages, including Cuzco Quechua (a Peruvian language) and Turkish include information about how the speaker came to know the assertions that he makes. These linguistic elements are called evidentials. In essence, these languages have a built-in identifier of hearsay. They require that the speaker tip off the hearer when a statement is made based on hearsay evidence. In some ways, the use of evidentials mirrors the hearsay rule in law. But in other respects, the two systems differ. This essay introduces the legal community to evidentials, and explores similarities and differences between legal and linguistic rules.

Download the essay from SSRN at the link.