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What’s Wrong with Hearsay?

By James D. Abrams

Ask two trial lawyers about how they view the hearsay rule, and you’re likely to get two different responses depending on their personal experiences in trial. If, in the attorney’s opinion, the judge ruled properly, the hearsay rule worked, even if the judge, in fact, got it wrong. A simplistic conclusion about the hearsay rule, then, may be that it doesn’t work or has outlived its purpose. In that regard, there is substantial scholarly work favoring expanding the admissibility of hearsay[1] Although expanding the admissibility of hearsay is not a new concept,[2] in general, practicing lawyers seem content to defend the rule, particularly in criminal cases.[3] So, is there anything really wrong with the hearsay rule? Have times changed so much that the hearsay rule has outlived its purpose?

When I began writing this article, I was predisposed to a view that the hearsay rule didn’t work and that it had outlived its purpose. My civil trial experiences suggested that admitting hearsay was preferable to wasting resources by fighting about whether the evidence should be admitted. After all, don’t the lawyer’s objections and the judge’s rulings confuse jurors? Can’t we trust jurors to weigh the evidence that they hear, even if it’s an out-of-court statement offered for the truth of the matter asserted?[4] Indeed, too often, a judge won’t allow an important document to be used as evidence because it doesn’t qualify as a business record, even though it has all the necessary indicia of reliability. In other instances, judges improperly use hearsay exceptions to admit evidence that wasn’t competent evidence in the first place. Notwithstanding my predisposition, the research and reflection conducted for this article have changed my views generally about whether the hearsay rule works and, specifically, about whether the hearsay rule has outlived its purpose.

The History of the Hearsay Rule
Dean Wigmore said, “[t]he history of the hearsay rule, as a distinct and living idea, [began] only in the 1500s and it [did] not gain complete development and final precision until the early 1700s.”[5] Beginning in the later 1400s, the development of the jury trial, with witnesses testifying about the facts of a particular case, was an important factor in the development of the hearsay rule.[6] Until 1975, the hearsay rule as part of the body of evidence law was mostly a creature of common-law tradition.[7]

While numerous efforts to codify evidence law preceded the federal rules, four are significant.[8] Wigmore wrote a code in 1909, the American Law Institute proposed a model code in 1945, the National Commissioners on Uniform State Laws proposed uniform rules in 1953, and, in 1974, these uniform rules were amended.[9] Each of these efforts, as well as the original version of the Federal Rules of Evidence, contained proposals to eliminate or reduce the impact of the common-law hearsay rule without effect.[10]

Codified hearsay rules, as part of The Rules of Evidence for U.S. Courts and Magistrates, became effective January 2, 1975.[11] Those hearsay rules, with the traditional limitation on admissibility subject to certain exceptions, contained residual exceptions that may have given the courts more discretion to admit hearsay than was the case previously.[12] In any event, the hearsay rules, as originally adopted by Congress, have remained substantially unchanged since they first became effective.

The Purpose of the Hearsay Rule
Much has been written about the purpose of the hearsay rule as a foundation for reforming the rule. For example, Dean Wigmore suggests that its purpose is to support the modern jury trial process, ensuring the parties’ right to cross-examination and confrontation.[13] Other scholars have suggested its intended purpose is to ensure the acceptability of a verdict;[14] control highly adversary procedures and unchecked factfinders;[15] or contribute to justice, protect competitive advantage, and limit judicial discretion.[16] However, regardless of one’s view of the purpose of the rule, it seems that only academics are calling for reforms, none of which have been embraced by practicing attorneys or rulemakers. The conclusion that I reach from this fact is that, at least with respect to federal practice, the hearsay rule still works because it may be appropriately flexible and provide a basis, in practice, to permit trial lawyers to make an argument about admissibility, principally because of the residual exception rule of Fed. R. Evid. 807.

In this regard, the Supreme Court has recognized that hearsay is only presumed to be unreliable.[17] With appropriate proof, the presumption may be rebutted.[18] Before the adoption of the hearsay rule, the Supreme Court proposed the residual exception rule to allow federal courts to “admit any hearsay not specifically covered by the enumerated exceptions to the hearsay rule if the hearsay statement was found to have ‘comparable circumstantial guarantees of trustworthiness.’”[19] Congress, however, narrowed the rule.[20]

Originally included in Fed. R. Evid. 803(24) and 804(b)(5), in 1997, the rule was combined into Fed. R. Evid. 807, with no intent to change the meaning of the exception.[21] The residual exception states:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name an address of the declarant.

Fed. R. Evid. 807 is clearly a rule with hurdles, but not insurmountable hurdles. Although courts have “repeatedly recognized the Congress intended the residual hearsay exception to be used very rarely, and only in exceptional circumstances,”[22] it’s unclear whether courts widely embrace this view.[23] In fact, it has been said, “where evidence complies with the spirit, if not the letter, of several exceptions [to the hearsay rule], admissibility is appropriate under the residual exception.”[24]

In addition to the residual exception, the hearsay rule provides a number of ways to admit out-of-court statements. For example, the statement could be one of those defined as not hearsay.[25] Alternatively, a creative lawyer, depending on the circumstances of the particular case, can find a way to use the specific exceptions of Fed. R. Evid. 803 or 804. The point is, as one scholar stated, “[t]he general thrust of the Federal Rules of Evidence favors the admission of evidence which is reflected in both the definition of hearsay, which departs from the common law and excludes non-assertive conduct, and in the list of . . . hearsay exceptions widely used in Federal courts.”[26]

On the other hand, notwithstanding exceptions and exclusions, keeping out hearsay may be as simple as making an objection supported by a rational argument. In criminal cases, this is particularly true.[27] Supporters of a less flexible hearsay rule, and the resulting greater exclusion of evidence, base their argument on five major themes.[28] The major reason for the exclusion of hearsay is the inability to cross-examine the declarant.[29] Next, there is the danger that the testifying witness will misreport and fabricate.[30] Third, trial lawyers are concerned about surprise at trial.[31] Fourth, apparently, trial lawyers are concerned that hearsay reform would give too much discretion to trial judges.[32] Last, those opposed to hearsay reform suggest that reform would facilitate abuse of governmental power in criminal cases.[33]

For me, the untested declarant theory of hearsay, i.e., that the declarant is not subject to cross-examination, the declarant is not under oath, and the declarant is not subject to observation, strongly supports a more rigid application of the hearsay rules. While it may be simplistic, it provides an understandable basis for excluding hearsay and is easily applied. Also, the untested declarant theory has served as the foundation to explain the hearsay rule’s exceptions, i.e., “[t]he exceptions apply to situations in which concern about the absence of in-court cross-examination of the declarant is for some reason mitigated.”[34]

So, we get back to the question “What’s wrong with hearsay?” In civil cases in federal court or state courts whose evidence rules are modeled on the Federal Rules of Evidence, my answer is “probably nothing.” Although it can be improved by, among other things, a more liberal reading of the residual exception rule, the hearsay rule probably works.[35] Argue a flexible interpretation and use the exceptions and the residual exceptions as your sword if you are attempting to admit hearsay. Alternatively, you can use a more rigid application and argue that hearsay is unreliable and not trustworthy as a shield.

Keywords: Trial evidence, hearsay rule, Federal Rules of Evidence

By James D. Abrams is with Chester, Willcox, and Saxbe, LLC.

This article appears in the Spring 2010 issue of Proof, from the Trial Evidence Committee.


End Notes

  1. Laird C. Kirkpatrick, Evidence Law in the Next Millennium,49 Hastings L.J. 363, 366 (1998).
  2. Id.at 363.
  3. George Van Kessel, Hearsay Hazards in the American Criminal Trial: An Adversary-Oriented Approach,49 Hastings L.J. 477, 482 (1998).
  4. See, e.g., Christopher B. Mueller, Post-Modern Hearsay Reform: The Importance of Complexity,76 Minn. L. R. 367, 374 (1992).
  5. 5 Dean Wigmore, Evidence § 1364 (Chadbourn Rev., 1974). Wigmore broadly defined the hearsay rule as a rule “which prohibits the use of a person’s assertion, as equivalent to testimony to the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and of his qualifications to make it.” Id.
  6. 2 McCormick on Evidence § 244 (6th ed.)
  7. Christopher B. Mueller et al., Evidence § 1.2 (4th ed.)
  8. Id.
  9. Id.
  10. Van Kessel, supra note 3, at 480, 481.
  11. Fed. R. Evid. 802.
  12. Roger Park, A Subject Matter Approach to Hearsay Reform,86 Mich. L. Rev. 51, 53 (1987).
  13. 5 Wigmore, Evidence §§ 1364, 1365 (Chadbourn Rev. 1974).
  14. Charles Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts,98 Harv. L. Rev. 1357 (1985).
  15. Van Kessel, supra note 3, at 484.
  16. Ronald J. Allen, The Evolution of the Hearsay Rule to a Rule of Admission,76 Minn. L. Rev. 797, 801 (1992).
  17. William G. Phelps, Annotation, Admissibility of Statement Under Rule 807 of Federal Rules of Evidence, Providing for Admissibility of Hearsay Statement Not Covered by Specific Exception, 173 A.L.R. Fed. 1 (2001).
  18. Id.
  19. Id.
  20. Id.
  21. Id.
  22. Id.
  23. See id. (numerous examples of evidence admitted under the rule).
  24. 31A C.J.S. Evidence § 381 (2009).
  25. Fed. R. Evid. 801(d).
  26. Van Kessel, supra note 3, at 479.
  27. Id.at 492, 493.
  28. Id.at 68.
  29. Id.
  30. Id.
  31. Id.
  32. Id.
  33. Id.
  34. Id.at 70.
  35. See also Mueller, supra note 4, at 402–412 (suggesting hearsay should be admitted if “foundation facts” are presented to the jury and a rule of preference coupled with a notice procedure would improve the evidence rules).

  • June 3, 2010 – Hearsay is pernicious at trial. Like the game of "Gossip," as a story is repeated from one person to another each hears only what they want to hear. We have all experienced a friend's trip to the doctor for a routine exam becoming a fatal illness by the time we hear of it fourth-hand. A casual comment after an automobile wreck that "Frank drinks a lot" morphs into "Frank had four martinis right before the wreck." As judges have gotten more and more casual with the hearsay rule and adopted the attitude of let it all come in and the jury will sort it out, trials have become creative storytelling sessions.


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