The Three Commandments of Amending the Federal Rules of Evidence
12 Pages Posted: 2 Feb 2017
Date Written: January 31, 2017
The Advisory Committee on the Federal Rules of Evidence is considering an amendment to Rule 807, the residual exception to the rule against hearsay. One aspect of the proposed amendment would permit admission of hearsay not already covered by an exception in Rules 803 or 804 so long as the statement is “trustworthy” as established by circumstances relating to the statement and corroborating evidence. This would expand the scope of the residual exception in two ways. First, it would eliminate language in the existing rule that describes the degree of trustworthiness required; the rule currently requires that the proffered hearsay have a level of trustworthiness “equivalent” to the exceptions in Rules 803 and 804. Second, the proposed amendment would permit trustworthiness to be established, at least in part, by corroborating evidence. In contrast, the exceptions in Rules 803 and 804 make admissibility dependent on only the circumstances surrounding the hearsay statement in question.
The Rules have been amended many times in the forty years since they were enacted. This makes it possible to distill that experience into three commandments for amending the rules: (1) If It Ain’t Broke, Don’t Fix It. (2) First, Do No Harm. (3) Be Careful What You Wish For. After a brief history of the residual exception and a description of the proposed amendment, this Article considers the extent to which that proposal complies with these commandments.
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