Sunday, June 5, 2011
Last week, I posted an entry about Sam Stonefield's Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 5 (May 2011). In the article, Professor Stonefield contends that the Federal Rules of Evidence wrongfully classify statements such as admissions as "not hearsay" under Federal Rule of Evidence 801(d). And, while he acknowledges that this imprecision has not led to any real substantive errors in cases across the country, he puts forth a few compelling proposals for amending Rule 801(d).
As I have noted, the Federal Rules of Evidence are currently being restyled, and Professor Stonefield sent his article to the Advisory Committee on Evidence Rules as a formal proposal to amend the Federal Rules of Evidence. As I noted in my previous post, Professor Stonefield told me that
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.”
Daniel Capra, the Reporter for the Advisory Committee on Evidence Rules, has now sent me a copy of the memorandum that he sent to the Committee in response to Professor Stonefield's work, and from it, you can see the excellent work done by the Committee, which I have previously highlighted.In the memorandum (Download Capra Letter), Professor Capra notes that
Professor Stonefield proposes that Rule 801(d) statements be redesignated as hearsay but subject to an exception. He concedes that his proposal will not change any evidentiary result as a practical matter, because there is no practical difference between an exception to the hearsay rule and an exemption from that rule. If a statement fits either an exemption or an exception, it is not excluded by the hearsay rule, and it can be considered as substantive evidence if it is not excluded by any other Rule (e.g. Rule 403). Professor Stonefield also concedes that courts have had no problem with the anomalous designation of Rule 801(d) statements as not hearsay — they know it makes no difference and so don’t get hung up on any distinction between "not hearsay" and "hearsay subject to an exception."
Professor Capra then presents the question to the Committee as follows:
whether the costs of an amendment — disruption of settled expectations, necessary adjustment, possible inadvertent changes, etc. — is outweighed by the benefit of a more logical approach to the hearsay rule and its exceptions. In the end, the major argument against the proposal is that the existing Rule 801(d), however logically flawed and perhaps confusing to novices, has not appeared to result in any practical problems of application.
•The Minimalist Approach: Just redesignating Rule 801(d) so that they are now designated as exceptions to the rule against hearsay rather than "not hearsay;"
•The Minimalist Plus Approach: Redisgnating Rule 801(d) and moving Federal Rule of Evidence 803(5), the hearsay exception for past recollection recorded, to Rule 801(d) to create Rule 801(d)(1)(D); and
•"Thorough-Going" Alternative: Housing each category of hearsay exception under a separate rule number (prior witness statements would be under Rule 803, admissions would be under Rule 804, the former Rule 803 hearsay exceptions would be under Rule 805, the former Rule 804 hearsay exceptions would be under Rule 806)).
I will leave it to readers to check out Professor Capra's full memorandum (Download Capra Letter) to see his complete analyses of each of these proposals, which take up ten pages. He highlights a lot of interesting issues with regard to the proposals, such as the effect that they would have on (1) Federal Rule of Evidence 806 (impeaching a "hearsay" declarant); (2) Federal Rule of Evidence 807 (the residual hearsay exception); and (3) searches of and citations to prior case law.
In the end, of course, the Committee decided not to amend Federal Rule of Evidence 801(d) such that the statements that it covers are now exceptions to the rule against hearsay. And I think this makes sense. As Professor Stonefield acknowledges, the current version of Rule 801(d) hasn't wreaked havoc in courtrooms across the country, so why open Pandora's Box? I think that Professor Stonefield, the Committee, and I all agree that Federal Rule of Evidence 801(d) could use a good tuneup, but once you take something apart, you never quite know how it will function when you put it back together.