EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, February 7, 2014

A New Theory of Hearsay: Incorporating Rule 403 Into the Hearsay Analysis

Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is "unavailable." As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule  403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?

It seems strange to me. When parties seek to admit character evidence under Federal Rule of Evidence 404(b), most courts apply a test that explicitly incorporates the Rule  403 to ensure that the evidence isn't misused as propensity character evidence. When parties seek to admit evidence for a potentially permissible purpose under the specialized relevance rules (Rules 407-411), courts will routinely sustain Rule  403 objections. As with Rule 404(b), the Rule  403 balancing test is explicitly built into the Rule 609 analysis when evidence of a conviction is offered to impeach a witness. And courts will quite often wonder whether expert evidence offered under Rule 702 needs to be excluded under Rule  403 because it might tend to mislead of confuse the jury (think polygraph evidence).

And yet, this analysis is almost never conducted when hearsay evidence is offered under Rule 803 or 804? Again, the question is: why? Assume that an EMT discovers Vince, who was pushed to the ground and shot 30 minutes ago. Vince, bleeding to death and possibly suffering from a concussion or brain injury, frantically tells the EMT that he was shot by Dan. At trial, the prosecution might try to offer this evidence as an excited utterance (Rule 803(2)) or a dying declaration (Rule 804(b)(2)). The court will almost certainly admit the statement under either of these exceptions. And it will do so despite recognizing that Vince's statement is almost certainly unreliable: Eyewitness testimony in general is unreliable, the brain injury calls into question Vince's accuracy, and the stress bearing down on Vince makes him likely to make mistakes.

Scholars, lawyers, and judges have all recognized that there are reasons to question the common law wisdom that statements that qualify for admission under hearsay exceptions are any more reliable than other hearsay statements. And yet, the common response when such an objection is made is that such hearsay exceptions exist and have to be respected. But isn't Rule  403 a backstop that should allow for such objections to be made. If we think that a dying declaration is lacking in probative value, isn't there room to exclude it under Rule  403 despite it meeting the requirements of Rule 804(b)(2)?



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Those tests are written into the texts of those rules. I do think there's some sense in using 403, particularly where a statement is allowed in because it is said not to be used for the truth of what it is asserting. What probative value will it have then?

Posted by: nidefatt | Feb 7, 2014 7:01:46 AM

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