Thursday, February 13, 2014
As Colin explores alternate hearsay theories in his posts, it is worth highlighting a concurrence in U.S. v. Boyce, decided today in the Seventh Circuit, where Judge Richard Posner attacks the merits of both the present sense impression and excited utterance hearsay exceptions (FRE 803(1) and (2)). As Judge Posner notes, the arguments against these exceptions are not new, but his no-holds-barred critique, stating the exceptions are “not even good folk psychology,” is sure to generate interest in revisiting the hearsay thicket. Perhaps the most fascinating aspect of the concurrence comes at the end, however, when Judge Posner states:
“I don’t want to leave the impression that in questioning the present sense and excited utterance exceptions to the hearsay rule I want to reduce the amount of hearsay evidence admissible in federal trials. What I would like to see is Rule 807 (“Residual Exception”) swallow much of Rules 801 through 806 and thus many of the exclusions from evidence, exceptions to the exclusions, and notes of the Advisory Committee. The “hearsay rule” is too complex, as well as being archaic. Trials would go better with a simpler rule, the core of which would be the proposition (essentially a simplification of Rule 807) that hearsay evidence should be admissible when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome.”
Although we appear to differ on the details, Judge Posner’s analytical trajectory – attacking the present sense impression exception as difficult to justify (particularly in a modern era of text messaging), but advocating an ultimate goal of allowing more, rather than less hearsay, under a more rational, modern framework – roughly tracks my own (see here and here and previous blog posts). Unlike Judge Posner, however, I am skeptical that reliance on amorphous reliability assessments and judicial discretion under Rule 807 is a workable solution, particularly in a world dominated by settlements and plea bargains where litigants need a decent sense, in advance of trial court rulings, of whether their evidence is admissible.
Thanks to Rob Luther for forwarding me the opinion.