Reality Check: A Modest Modification to Rationalize Rule 803 Hearsay Exceptions

The Federal Rules of Evidence (or “the Rules”) identify hearsay that is admissible, notwithstanding the classic hearsay prohibition, by delineating categories of hearsay statements that may be admitted into evidence. For example, “dying declarations” of now-unavailable declarants may be admitted in homicide prosecutions or civil cases. “Excited utterances” relating to a startling event also may be admitted for their truth. The purported justification for admitting certain categories of hearsay rests upon the inherent reliability of human statements uttered in certain contexts, as well as litigants’ need for crucial evidence to build cases

Reality Check: A Modest Modification to Rationalize Rule 803 Hearsay Exceptions

The Federal Rules of Evidence (or “the Rules”) identify hearsay that is admissible, notwithstanding the classic hearsay prohibition, by delineating categories of hearsay statements that may be admitted into evidence. For example, “dying declarations” of now-unavailable declarants may be admitted in homicide prosecutions or civil cases. “Excited utterances” relating to a startling event also may be admitted for their truth. The purported justification for admitting certain categories of hearsay rests upon the inherent reliability of human statements uttered in certain contexts, as well as litigants’ need for crucial evidence to build cases

Goldilocks and the Rule 803 Hearsay Exceptions

Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse for hearsay. On the opposite end of the spectrum, narrow proposals to amend individual hearsay exceptions one at a time accomplish too little and may undermine the utility of long-standing and rational hearsay exceptions that permit the flow of helpful information into the trial process. As an alternative to these proposals at opposite ends of the spectrum, this Article reveals a ready hearsay reform right under our noses that hits that sweet spot in between a sweeping, aggressive reform and an unduly narrow, limited fix. The Article suggests borrowing the trustworthiness exception that is a current feature of the business and public records exceptions and extending its application to additional hearsay exceptions in Federal Rule of Evidence 803. This change would make hearsay statements falling within the existing requirements of the Rule 803 exceptions presumptively admissible, but would afford the opponent of those hearsay statements the opportunity to show that the particular circumstances surrounding the statements render them untrustworthy and inadmissible. Fleshing out this concept first advanced in my previous work, this Article explains why an expanded trustworthiness exception could be the silver bullet that takes an important step toward rationalizing hearsay doctrine

Posnerian Hearsay: Slaying the Discretion Dragon

Distinguished jurist and scholar, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit penned a concurrence in United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), in which he launched a scathing attack on the scheme of categorical hearsay exceptions embodied in the Federal Rules of Evidence. After characterizing the existing hearsay regime as bad “folk psychology,” Judge Posner called for the repeal of categorical hearsay exceptions in favor of case-by-case determinations about the “reliability” of particular hearsay statements by trial judges. Prior to adoption of the Federal Rules, evidence experts debated whether a case-by-case or categorical approach to hearsay exceptions was superior. Judge Posner’s concurrence in Boyce resurrects that debate. Recent evidence scholarship highlights differences of opinion regarding the operation and propriety of specific hearsay exceptions within the Federal Rules of Evidence. Not until the gateway question raised in Boyce about the proper structure of the hearsay regime is resolved may the debate proceed concerning which hearsay exceptions belong in a categorical regime fit to serve the twenty-first century. This Article explores Judge Posner’s proposal through an economic lens, specifically highlighting the costs and benefits of the purely discretionary approach he proposes. On the cost side of the ledger, the article points out the decrease in predictability that a case-by-case reliability approach to hearsay would create and examines the litigation consequences of such decreased information flow. This Article also cautions against the damage to consistency and fairness certain to follow case-by-case consideration of all hearsay. Further, this Article highlights the scant benefits of a discretionary approach to hearsay. The Article concludes that Judge Posner’s proposal represents a bad bargain for the law of evidence and suggests that efforts to reform the hearsay regime would be more effectively focused on modifying existing categorical exceptions or in pursuing a truly new paradigm for hearsay evidence that eliminates amorphous considerations of “reliability” altogether. Thus, the Article urges the rejection of the purely discretionary model for evaluating hearsay evidence once and for all and seeks to stimulate thought about hearsay reforms that move evidence law forward

Posnerian Hearsay: Slaying the Discretion Dragon

Distinguished jurist and scholar, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit penned a concurrence in United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), in which he launched a scathing attack on the scheme of categorical hearsay exceptions embodied in the Federal Rules of Evidence. After characterizing the existing hearsay regime as bad “folk psychology,” Judge Posner called for the repeal of categorical hearsay exceptions in favor of case-by-case determinations about the “reliability” of particular hearsay statements by trial judges. Prior to adoption of the Federal Rules, evidence experts debated whether a case-by-case or categorical approach to hearsay exceptions was superior. Judge Posner’s concurrence in Boyce resurrects that debate. Recent evidence scholarship highlights differences of opinion regarding the operation and propriety of specific hearsay exceptions within the Federal Rules of Evidence. Not until the gateway question raised in Boyce about the proper structure of the hearsay regime is resolved may the debate proceed concerning which hearsay exceptions belong in a categorical regime fit to serve the twenty-first century. This Article explores Judge Posner’s proposal through an economic lens, specifically highlighting the costs and benefits of the purely discretionary approach he proposes. On the cost side of the ledger, the article points out the decrease in predictability that a case-by-case reliability approach to hearsay would create and examines the litigation consequences of such decreased information flow. This Article also cautions against the damage to consistency and fairness certain to follow case-by-case consideration of all hearsay. Further, this Article highlights the scant benefits of a discretionary approach to hearsay. The Article concludes that Judge Posner’s proposal represents a bad bargain for the law of evidence and suggests that efforts to reform the hearsay regime would be more effectively focused on modifying existing categorical exceptions or in pursuing a truly new paradigm for hearsay evidence that eliminates amorphous considerations of “reliability” altogether. Thus, the Article urges the rejection of the purely discretionary model for evaluating hearsay evidence once and for all and seeks to stimulate thought about hearsay reforms that move evidence law forward

Poetry in Motion: The Federal Rules of Evidence and Forward Progress as an Imperative

This Article dives into the long-standing debate about the propriety of altering the time-honored Federal Rules of Evidence. Noted authorities, such as the late Chief Justice Rehnquist, have eschewed any modification to the Rules, claiming that they must remain essentially fixed in their original form to maximize their utility to trial advocates and to avoid wasteful dislocation costs that accompany updates. Unlike the many scholarly works examining the merits and demerits of particular evidence rules, this Article shines a light on the lesser examined process of amending the Federal Rules of Evidence, revealing a taxonomy of evidentiary circumstances or trigger points that justify and, indeed, demand a change to the Rules. It demonstrates that amendments are imperative when the Rules may be subject to an unconstitutional application as written; when the Rules are plagued by irreconcilable conflicts in their interpretation and application among circuits; when tectonic shifts in technology, trial practice, or society render the Rules obsolete, unfair, or ill-equipped for the task they were designed to perform, and when amendments will enhance the simplicity and brevity of the Rules and make them easier for judges and litigants to deploy. Rather than debating the risks inherent in rule changes generally, rulemakers can utilize this taxonomy to distinguish a necessary amendment from wasteful tinkering. To illustrate these trigger points, the Article highlights recent and pending amendment proposals and analyzes the amendment process for the Federal Rules of Evidence since 1992, when the Advisory Committee on Evidence Rules was reconstituted. Further, the Article acknowledges the barriers to progress that exist even in these contexts, exploring the deference owed to congressional compromises embodied in the Federal Rules of Evidence, the impact of Supreme Court precedent interpreting existing Rules, and the U.S. Department of Justice’s role in the rulemaking process. Finally, the Article highlights some of the most fundamental principles and practices that may be employed to overcome these barriers and to craft optimal amendments to the Federal Rules of Evidence to ensure their forward progress