Wednesday, January 30, 2008
University of Colorado Law School Professor Marianne Wesson's contribution to the the Ethics and Evidence Symposium is "Remarkable Stratagems and Conspiracies": How Unscrupulous Lawyers and Credulous Judges Created an Exception to the Hearsay Rule. The article is quite interesting in that it consists of a comprehensive discussion and analysis of the single case undergirding the hearsay exception contained in Federal Rule of Evidence 803(3) and state counterparts and concludes that it is a house of cards. That case is Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285 (1892). Professor Wesson provides a wonderfully detailed accounting of the facts of the Hillmon case in her article, but here are the brief facts:
-Sallie Hillmon claimed that a dead body found in a creek belonged to her husband, John, and thus sought to recover on insurance policies on his life;
-The insurance companies claimed that the Hillmons were trying to defraud them and that the body actually belonged to John's traveling partner, Frederick Walters;
-The insurance companies sought to introduce letters allegedly written by Walters to his sister and fiancee in which he stated his intention to go with John Hillmon on a trip.
The Supreme Court agreed with the insurance companies, finding that the letters were admissible as an exception to the rule against hearsay because they were statements of intent which could be used to prove that Walters acted in accordance with his declared intent. As Wesson notes, "This hearsay exception is lacking in empirical or policy justification, yet has displayed remarkable durability, finding its way into the Federal Rules of Evidence and the evidence codes of nearly all American jurisdictions, as well as into the British law, chiefly because of the prestige of the Hillmon decision." Specifically, Federal Rule of Evidence 803(3) indicates that "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will" is admissible as an exception to the rule against hearsay.
And yet, the point of Wesson's article is not to join in the debate over efficacy of the rule, but instead to argue that the Hillmon case isn't what the Supreme Court and subsequent courts made it out to be. Instead, there were several problems with the case, the most notable one being that the letter allegedly sent to Walters fiance, "was, if not a fake, full of lies, and its provenance was misrepresented by witnesses who must have been solicited by the companies' lawyers." Wesson thus argues that revocation of Rule 803(3) would "be fitting tribute to Hillmon, and a suitable apology for the insults the law and its actors have leveled at his reputation and his memory."
I asked Professor Wesson what led her to write such a thorough and interesting analysis of Hillmon, and she replied:
"I came to my obsession with the Hillmon case less through my interest in the law of evidence than because of my lifelong love of narrative. It was the story more than the law that captivated me at first. I knew its general public outlines (in the way all Evidence professors do) for years before I got serious and dug up the archive and the old newspaper accounts that transformed my understanding of the events behind the case. One day a few years ago a typical classroom discussion about why the Court would have invented this curious exception to the hearsay rule (yes, I know there were some precedents from New Jersey and the UK, but not very strong ones) finally brightened the bulb for me and gave me a flash of what felt like insight. Could it be, I suggested to my students, that the Justices ruled as they did because they understood the story as one about a wily frontier outlaw and his effort to fleece a trio of respectable businesses, and could not resist taking such steps as they could to prevent the miscreant from profiting from his crime? (John Maguire’s account of E.R. Thayer’s notes about the Court’s consideration of the case may have suggested this idea to me.) It seemed like a plausible and sufficient explanation for an otherwise puzzling decision. Sending the case back for retrial on the ground that the companies had not enjoyed enough peremptory challenges probably would not have changed the result, if Miss Alvina Kasten’s letter was still to be kept out of evidence. And there was no getting around the letter’s hearsay nature, nor could the Court with a straight face endorse the companies’ argument that the letter was a business record. Finding a hearsay exception that would accommodate the letter’s admission, even if it had to be one that none of the companies had argued for, was the only measure that would work. Armed with this idea, I made up my mind to see what I could discover about the story that wasn’t revealed by the Court’s account of the facts. And the more I found, the deeper my obsession grew. I’m still discovering new documents and materials, and now I’m working on a book about the case. It’s not only a terrific opportunity to reflect on how the law is sometimes made, but a window into a turbulent, fasciniating, infuriating time in the history of the United States."
I also asked Professor Wesson what she thought about the circuit split over whether Rule 803(3) allows for the admission of statements that reflect on not only the state of mind of the speaker, but which also speak to the alleged future acts of some other person. She responded:
"Your question about whether I think the reach of the Hillmon doctrine ought to be limited in the way suggested by the Judiciary Committee’s report is a good one. I understand the theory that statements like “I have an understanding with Hillmon,” which lurks implicit in the statement “I am going with Hillmon to start a sheep ranch,” are more dangerous (in the hearsay sense) then pure statements of individual intention like “I am going for a walk in the park.” The former is subject to errors of perception and memory as well as the hazard that the declarant is lying; the latter subject only to the risk of prevarication. But in general the law of evidence considers the risk of prevarication alone sufficient to exclude an out of court statement, unless there is reason to think it trustworthy. (The out of court statement “I had a terrible stomachache last night” is inadmissible if not made for purposes of diagnosis or treatment, although the risk of failed perception is nonexistent and the risk of failed memory almost so.) It’s true there are some hearsay exceptions apart from the Hillmon exception that seem to accommodate statements that are relatively unprotected from the risk of mendacity, if the dangers of misperception or failed memory are small: statements of present physical sensation (like pain) for one, statements made to medical professionals for purposes of diagnosis only, for another. But those exceptions seem to me to rest more on some theory of necessity than on the statements’ reliability. I concede neither justification (necessity nor reliability) for statements about the declarant’s intentions. So to return to your question, I would prefer to see the exception for statements of the declarant’s intention abandoned altogether, rather than merely limited to statements that do not implicate the intentions of another or events in the past. But as the perfect should not destroy the good, of course I agree that an exception so limited is preferable to the unbridled exception that too many courts have been willing to recognize. I’ll add only that the question of how to enforce such a limitation when the statement is a mixed one like “I am going with Hillmon to start a sheep ranch” (or “I’m going out to the parking lot to buy a lid of marijuana from Angelo”) is vexed, unless such statements are to be excluded altogether. Limiting instruction? (lol, as my students would say)."