The Hearsay Rule as a Rule of Admission Revisited
11 Pages Posted: 24 Nov 2015 Last revised: 9 Feb 2016
Date Written: November 23, 2015
A number of years ago, I prophesized the death of hearsay, a prophesy that turned out to be premature. Recently, a distinguished federal judge issued a concurring opinion calling for a reconsideration of the continued existence of the hearsay rule, at least in its present form. That prompted the Evidence Rules Advisory Committee to convene a conference examining whether fundamental change to the hearsay rule should be considered and asking for advice on how to approach such structural reform. My advice is contained herein. In essence, it is to recognize 1) that the rule (like the law of evidence generally) serves important objectives in addition to the epistemological function normally thought dominate in the field of evidence; 2) that the federal rules successfully further those objectives; 3) that the hearsay rule furthers those objectives by being a fairly cheap to administer rule of admission rather than an expensive rule of exclusion as it was at common law; 4) that the rule admittedly accomplishes these objectives with a weird structure that promises exclusion but does not redeem the promise; 5) that eliminating the hearsay rule could cause unfortunate cost shifting and tactical gamesmanship; 6) and thus that all things considered the present federal law of hearsay is a reasonable accommodation of the varying competing interests. Perhaps admission of hearsay should be liberalized further but drastic changes do not seem warranted.
Keywords: evidence, hearsay, hearsay rule
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