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May 31, 2011
Article Of Interest: Sam Stonefield's Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment
If you have ever taught or taken an Evidence class, you likely know about the following oddity in the Federal Rules of Evidence. Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," and Federal Rule of Evidence 802 provides that "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Meanwhile, Federal Rule of Evidence 803 and Federal Rule of Evidence 804 provide exceptions to the rule against hearsay for statements that are offered in evidence to prove the truth of the matter asserted but which are thought to be sufficiently reliable/trustworthy.
And then, there is Federal Rule of Evidence 801(d), which indicates in relevant part that
A statement is not hearsay if--
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
(2) Admission by party-opponent. The statement is offered against a party and is
(A) the party's own statement, in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
In a sense, then, Rule 801(d) is oxymoronic. Rules 803 and 804 make sense. They take statements that are defined as hearsay under Rule 801(c) and say, "Well, wait a minute. These are exceptions to that rule." But Rule 801(d) is internally inconsistent with Rule 801(c). Rule 801(c) provides the definition of hearsay, but then Rule 801(d) basically says, "Well, no. That's not really the definition because here are 8 statements that should be deemed hearsay under Rule 801(c) but which we are going to classify as 'not hearsay.'"
As Sam Stonefield, a professor at the Western New England College of Law, notes in his new article, Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 5 (May 2011), while this oddity ha not caused significant problems for lawyers and judges, Rule 801(d) is poorly written and is in need of a good rewrite.
So, how did we get here? In Parts II and III of his article, Stonefield traces the origin of the "not hearsay" statements covered by Rule 801(d) to John Henry Wigmore's editing of the sixteenth edition of Greenleaf on Evidence. Prior to the sixteenth edition, courts and scholars had identified a dichotomy under the rule against hearsay: If a statement were offered to prove the truth of the asserted, it was either inadmissible hearsay or an exception to the rule against hearsay. Wigmore, however, created a trichotomy, concluding that
[T]hree distinct groups of questions present themselves in connection with the Hearsay rule, viz.: A. Is the Hearsay rule applicable to the case at hand, i.e. is the evidence offered as a testimonial assertion? B. Is there any exception to the Hearsay rule to be made for the evidence offered? C. If the Hearsay rule is applicable, and if no recognized exception covers the case in hand, is the Hearsay rule satisfied, i.e. has there been, in fact, an oath and cross-examination?
As Professor Stonefield notes, this third category was the progenitor of Rule 801(d), and it was not without controversy. For instance, Edmund M. Morgan "
attacked Wigmore’s view that admissions were not hearsay. Morgan reviewed the history of admissions and demonstrated that Wigmore’s position was unsound in theory and unsupported by case law. Summarizing his argument, he wrote:
Certain it is that extra-judicial admissions are received in evidence. Equally certain is it that they are received for proving the truth of the matter admitted. It is likewise certain that they do not fall within that exception to the rule against hearsay [sic] which admits declarations against interest. These are the facts, and from them the conclusion is inevitable that they are received as an exception to the rule against hearsay, and not that they are received on any theory that they are not hearsay.
Professor Stonefield then takes us through the long, strange trip leading up to the adoption of Federal Rule of Evidence 801(d). While the Model Code of Evidence, the Uniform Rules of Evidence, and the California Code of Evidence (as well as Evidence luminary Charles McCormick in a model statute) all treated admissions as hearsay with a separate exception, the drafter, seemingly almost by accident, classified the statements in Rule 801(d) as "not hearsay."
Thereafter, in Part IV and V, Professor Stonefield notes that despite the awkward wording of Rule 801(d), it has not seemed to cause courts any problems although this is not to say that application of the Rule is without confusion. For instance, he points out that
The Supreme Court has decided four cases involving Rule 801(d). In those cases, the Court has used the terms "exemption," "exception," and "exclusion" more frequently than "not hearsay." The proposed Advisory Committee Note for the stylistic revisions to the current Federal Rules refers to the "hearsay exclusion" in Rule 801(d). Lower court cases regularly used similar terminology.
Finally, in Part VI, Professor Stonefield
evaluates six different approaches to classifying admissions and prior statements:
1) The Federal Rule approach, with Rule 801(d) and the “not hearsay” terminology;
2) The First and Second Draft approach, excluding admissions and prior statements from the definition of hearsay, Rule 801(c);
3) The predecessor code approach, treating admissions and prior statements as one of a list of hearsay exceptions;
4) The "three categories" approach adopted by Connecticut and Pennsylvania;
5) The "four categories" approach that I recommend; and
6) A "four categories" approach where the categories for admissions and prior statements are labeled "exemptions" or "exclusions" rather than "exceptions."
I will leave it to readers to check out Professor Stonefield's full article for his complete analysis, but the long and short of Professor Stonefield's suggested approach is that it creates four categories of hearsay exceptions, each based on the status of the hearsay declarant. There would be a category for:
(1) the declarant as a party—for admissions;
(2) the declarant as a witness—for prior statements;
(3) when the availability of the declarant is immaterial; and
(4) when the declarant must be unavailable.
The article was presented to and discussed by the Advisory Committee on Evidence Rules at their October, 2010 meeting. The Committee subsequently wrote that, while “agree[ing] in principle with [my] proposal” that Rule 801(d) should be amended and admissions and prior statements treated as separate hearsay exceptions, the members felt that the rule “was not a source of ambiguity or confusion and was being applied properly in the courts. Moreover, the members felt that the time and expense of making and incorporating a rule amendment outweighed the need for changing the rule at this time.”
So, while Professor Stonefield's proposal didn't take the day, it is certainly interesting food for thought and a great tool for teaching Rule 801(d) as well as possible future reform.
May 31, 2011 | Permalink
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