State Decisis and the Case for Executive Restraint

Essay/Revie

Hearsay and Informal Reasoning

The Federal Rules of Evidence define hearsay 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. \u27 A statement, in turn, is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. Hearsay is inadmissible unless it falls within an exception to the rule or an exclusion from the definition. Courts and commentators often write as if the distinctions they make between hearsay and nonhearsay are consistent with informal reasoning, the inferential methods based on common experience that human beings employ in litigation as well as everyday life. There is certainly good reason to take account of informal reasoning in conceptualizing hearsay. Interpretation of terms such as assertion and assert to reflect the process people use to make everyday judgments takes maximum advantage of human experience, and is therefore easy for courts and lawyers to learn and apply. But courts, rulemakers, and scholars have failed to develop a workable and accurate model of informal reasoning on which a clear understanding of hearsay could rest. One result of that failure is the debate over the proper ambit of the hearsay rule that has recurred since the Exchequer Chamber decided Wright v. Doe d. Tatham over a century and a half ago. Conventional attempts to distinguish hearsay from nonhearsay produce baffling results. Consider one understanding of the hearsay definition, which might be called the literalist heuristic. Literalist analysis holds that, for hearsay purposes, a communication ordinarily asserts only those propositions that it literally, expressly, or directly articulates

Foreword to the First Virtual Forum: Wallace Stevens, Blackbirds and the Hearsay Rule

Symposium - Hearsay and Implied Assertions: How Would (or Should) the Supreme Court Decide the Kearley Case: Forewor

The Juridical Management of Factual Uncertainty

Civil presumption doctrine in the United States is unnecessarily complex and essentially unnecessary. Evidence law affords a number of evidentiary devices for managing uncertainty, which civil presumptions, at best, merely replicate, but in a different vocabulary with the attendant unnecessary complexity. We survey the critical similarities of evidentiary devices, which can save time and expense, but seldom affect the final outcome of litigation, and demonstrate the manner in which civil presumptions are mere substitutes for other well known evidentiary devices. We further show the unnecessary complexity introduced by instructions on presumptions. The potential that presumption instructions have for harmful effects on jurors, and the effort required to master the intricate formalities of presumptions, suggest that the main reason for their continued existence is distrust of jurors, and perhaps appellate court distrust of trial courts, and that an appreciation of the extent to which presumptions duplicate other evidentiary devices can be the key to sorely needed reform

Confrontation and the Utility of Rules

There is a good reason why evidence scholars continue to be fascinated and perplexed, and some courts continue at least to be perplexed, by the types of evidence that tend to be lumped together misleadingly under the headings nonassertive conduct or implied assertions. Evidence of this sort highlights a paradox of the prevailing law of hearsay. I believe that this paradox cannot be resolved without fundamentally transforming the structure of that law. Thus, while I agree - within the current framework - with many of the insights so ably stated in this Symposium, I think evidence scholars must devote their efforts to construction of a better structure