NOTE, THE THEORETICAL FOUNDATION OF THE

HEARSAY RULES

93 Harv. L. Rev. 1786, 1786-1807 (1980)

Why have centuries of jurisprudence given rise to a rule known mostly by its exceptions, a rule that allows many avenues of circumvention and whose violation is rarely cause for concern by appellate courts? For decades, a fierce polemic has raged over the rule against hearsay and its exceptions.... [T]his debate is totally misdirected because the participants appeal to principles that have never been critically examined and that are incapable of rationalizing the rule against hearsay in any form.

I. RATIONALIZING THE RULE AGAINST HEARSAY

A. A GENERAL MODEL FOR EXCLUSION

Motivated by the assumption that a primary goal of our legal system is to achieve accurate case results, this Section will develop a framework that premises the exclusion of a relevant piece of evidence upon an expectation that the jury will erroneously assess the credibility of that evidence. To determine the extent to which the jury's assessment is erroneous, that assessment must be measured against some standard. Although ideally one would choose a standard of "truth," such a standard is, of course, impossible in principle to ascertain in the context of a trial. Instead, the framework will use the best alternative: the credibility that would be assigned to the evidence by "experts"--judges, attorneys, and academicians. This criterion will be referred to as "absolute reliability." Any relevant evidence, including hearsay, has at least some absolute reliability because the existence of infirmities and uncertainties of a piece of evidence only justifies discounting the weight given to the evidence rather than ignoring the evidence through exclusion. For example, even a statement by one known to be biased should not be ignored completely. With respect to hearsay, the existence of bias may be uncertain because there is no opportunity to cross-examine the declarant. Yet exclusion of such evidence would be inappropriate since the effect is to discount the evidence even more than if we were certain that the witness was biased.

If the jury's assessment is accurate by the standard of absolute reliability--that is, if the jury and the "expert" assessments coincide--the evidence should be admitted. When the jury cannot accurately assess the credibility of a piece of evidence, the error results in a gap between the jury's perception of the evidence and the absolute reliability of the evidence. Were the jury expected to underassess reliability, the controversy would not be over exclusion but over methods designed to increase the jury's reliance on the evidence. Exclusion is premised upon jury overassessment.

Any error that the jury commits in using the evidence to arrive at its verdict will depend upon the gap that remains at the conclusion of the trial--the residual gap--and not on the gap that existed after direct examination. Cross-examination and closing argument present opportunities to expose the weaknesses of testimony, improving the accuracy of the jury's assessment. Although with hearsay evidence cross-examination must be of the in-court witness instead of the declarant, there are still opportunities to expose weaknesses in the evidence. For example, if the evidence is ambiguous, cross-examination designed to reveal each of the possible meanings of the hearsay declaration would bring the weakness to the jury's attention. After these "remedies," the residual gap presumably would be smaller than the gap that existed immediately after direct examination. Such remedies vary, however, in their effectiveness and are limited in their range of potential application and by their strategic costs.

The concept of residual gap measures the expected jury error--the cost of admitting evidence. Credibility, judged by the standard of absolute reliability, measures the expected value of the evidence--the expected benefit from admission. A cost-benefit decision rule aimed at maximizing the accuracy of the result in a given case would exclude evidence when the expected error exceeds the expected value. This formula is analogous to rule 403 of the Federal Rules of Evidence which provides for the exclusion of relevant evidence when its prejudicial effect outweighs its probative value.

One way to examine the amount of error required to outweigh value, in order to justify exclusion, is to imagine a scale for recording assessments of the credibility of evidence. Zero would correspond to evidence given no credibility whatsoever; 100 to evidence believed with absolute certainty. Suppose the expert assessment (absolute reliability) of the evidence is above 50--for example, 51. Since the greatest value the jury could assign to the evidence is 100, the largest possible gap is 49. Thus, the expected value (51) exceeds the gap (at most 49) and the evidence should be admitted under the decision rule. Alternatively, consider a case where the expert assessment of value was 30 and the jury assessment was 61. The resulting gap of 31 exceeds the value of 30, barely justifying exclusion. Exclusion requires that the gap exceed the value of the evidence, and, as this second example indicates, this condition is fulfilled only if the jury assessment exceeds twice the value of the evidence.(1)13 The occurrence of this condition is unlikely since it requires the existence of factors that indicate to the experts in the legal profession that the credibility of some evidence is very low but that are so far beyond the comprehension of laypersons that juries still would assess the credibility as being quite high.(2)14

B. EXCLUSION ON THE GROUND THAT EVIDENCE IS HEARSAY

The process of determining the admissibility of a relevant piece of evidence by balancing its value against the residual gap between expected jury perception and absolute reliability is applicable to all types of evidence, and not just hearsay. Hearsay is distinguished from other evidence by the absence of the declarant. To justify the exclusion of evidence because it is hearsay, two conditions must be satisfied: (1) In the absence of the declarant (or when testimony is offered of the witness' own past statements), the gap must exceed value. (2) If the declarant is present (testifying to a current recollection of the events), the value must exceed the gap. If the first condition fails, there would be no reason to exclude. Without the second, exclusion would be justified even if the evidence were not hearsay. The second condition might fail, for example, when the exclusion of excited utterances is defended on the ground that the jury is not sufficiently aware of possible flaws in the declarant's perception. It is not, however, the hearsay character of this evidence that causes jury overassessment. Thus, that the evidence is an out-of-court declaration could not be asserted as the ground for exclusion.

Positions taken by those advocating reform of the rule against hearsay can readily be evaluated in the context of the framework just developed. For example, Judge Weinstein's well-known argument for more liberal admission of hearsay emphasizes the probative force (value) of hearsay, but provides no explicit analysis of the gap against which probative force must be balanced.(3)19 The implicit assumption necessary to justify his approach is that the reliability of hearsay is usually high enough (over 50 on the scale)(4)20 that insufficient room remains for a gap large enough to outweigh the value of the hearsay. Some favor abolishing the rule against hearsay on the ground that juries comprehend the shortcomings of hearsay as well as the "experts" do, a challenge to the existence of any initial gap. Others supporting abolition believe that cross-examination or other techniques will alert the jury to the weaknesses of hearsay, an assertion that any initial gap is remediable. Unfortunately, one feature common to most discourse on hearsay is the absence of any in-depth examination of these assumptions concerning the characteristics of evidence and how they are perceived by jurors.

It is not surprising that neither abolition nor extensive liberalization has occurred since few in the legal profession believe that juries are fully as aware of hearsay dangers as "experts," few believe that remedies are completely effective in all cases, and few believe that the value of evidence is always so high that all prospects of jury error can be ignored. But what apparently has gone unnoticed is that justifying retention of the rule against hearsay simultaneously requires that juries are generally unaware of hearsay dangers, that remedies usually fail to reveal dangers to the jury, and that the value of hearsay rarely approaches an intermediate level of credibility (50 on the scale)--a level that would make it impossible for the jury's assessment of hearsay to exceed twice the expert assessment (value) of the evidence.

II. MISDIRECTION OF THE HEARSAY RULES: FAILURE ON THEIR OWN TERMS

A. THE MYSTERY OF THE AVAILABLE DECLARANT

Admissibility of hearsay where the declarant is available has received much attention in the literature and is addressed explicitly in the Federal Rules of Evidence.(5)27 In the context of considering the accuracy of the result in a given case, arguments over the admission of the hearsay of available declarants make little sense because in any given case application of either of the two extreme approaches (always exclude or always admit) leads to the same result. If the declarant is available, (1) exclusion would be of little consequence to the party needing the evidence since the declarant can be called directly, and (2) admission would not damage the position of a party fearing jury overvaluation of the hearsay since the declarant can be called for cross-examination, which allows the same impeachment possibilities that would have existed were the opponent to have called the declarant for direct examination. If exclusion is the general rule, some special treatment of hearsay of available declarants may be justified on grounds unrelated to fears of jury overvaluation. For example, business records might be admitted to save the time and expense of calling the five employees who each had a hand in processing the data. Nonetheless, the traditional discussion claiming to address the accuracy of case results persists with full force despite the fact that it has no bearing upon whether the hearsay of an available declarant should be admitted.(6)30 The remainder of this Part therefore implicitly considers only the unavailable declarant.

B. TRADITIONAL JUSTIFICATION FOR HEARSAY EXCEPTIONS

Exceptions to the rule against hearsay are traditionally justified on the grounds that some hearsay is particularly reliable or necessary. This Section will address the prominence of each criterion in the hearsay polemic, question the possibility and practicality of applying each consistently, and analyze shortcomings revealed by application of the framework developed in Part I.

1. Reliability. The most common and accepted characterization of the hearsay problem is that such evidence is not sufficiently reliable and that exceptions are made for categories of hearsay that exhibit additional guarantees of trustworthiness. This approach permeates the major treatises on evidence. The Federal Rules of Evidence demonstrate adherence to this view through the requirements for an exception under the residual clauses and more generally through the supporting analysis provided by the Advisory Committee. Perhaps the most famous of hearsay decisions, Dallas County v. Commercial Union Assurance Co., recognizes this principle, as does Chambers v. Mississippi, in which the Supreme Court examined the constitutional implications of the hearsay rules in criminal procedure. This view is pervasive in the contemporary debate over hearsay issues.

Focusing on reliability as a justification for admission ignores all but the first element (absolute reliability) of the framework developed in Part I. First, this traditional approach errs by failing to consider the jury's perception of reliability.(7)39 For example, a piece of hearsay evidence may be fairly reliable, yet the jury may still significantly overassess its credibility; on the other hand, some hearsay may have no circumstantial indicia of reliability, but all its defects may be obvious to any juror. The traditional approach would admit the former evidence, despite the danger of overassessment, and exclude the latter, though it poses no real threat. Second, Part I demonstrated the need for examining the potential to remedy defects in jury evaluation of hearsay and the likelihood that such defects would not arise had the declaration been testimony subject to cross-examination. It is not surprising that one overlooks these factors when focusing solely upon reliability since the importance of both factors becomes apparent only upon recognition that the central emphasis should be on jury perception. Most investigations look to the reliability of hearsay in a vacuum instead of focusing upon the reliability gap. Finally, examinations of the exceptions often ignore the value lost whenever evidence is excluded, against which the reliability gap must be balanced.

Current analyses are unpersuasive even in their attempts to identify which categories of hearsay are reliable. The reliability of hearsay is usually determined by examining the degree to which believing the evidence requires unsupported reliance upon the declarant's four testimonial capacities: narration, sincerity, memory, and perception. If circumstances indicate that no danger would result from reliance upon one or more of these capacities, an exception is sometimes said to be warranted. Yet it is not clear why the hearsay problem is "solved" when only one or two of the four defects have been removed. Analysis of an exception justified on the basis of circumstantial guarantees as to one capacity suggests that the three that remain unchecked present no significant ground for worry. After examination of several exceptions, each justified by guarantees as to a different capacity, one would conclude that none of the four capacities found wanting in circumstantial guarantees presents a significant problem. One might respond to this criticism by assuming that the degree to which the reliability gap exceeded the value of the evidence was small enough that the incremental decrease in the gap provided by the removal of one of the defects is sufficient to swing the balance in favor of admission. If that is the case, however, it seems curious that those implicitly making this assumption devote so much attention to determining which categories of hearsay should be admitted and which should be excluded. The assumption itself suggests that most questions regarding the admissibility of hearsay are nearly a tossup.

The above criticism would not prove embarrassing to those wishing to inquire into the reliability of hearsay if one capacity could be isolated as the most important, with exceptions being made solely when there exist circumstantial guarantees for that capacity. In fact, most advocates of exceptions do emphasize circumstantial guarantees for one capacity--the sincerity of the out-of-court declarant. Acceptance of the principle that only appeals to sincerity can justify exceptions renders meaningless all current discussion of the other three capacities. More important, analysis within the framework of the first Part reveals how this justification backfires. Distinguishing hearsay from other evidence depends upon the testability of the hearsay declaration, assuming that it was offered as testimony in court. Few would doubt that cross-examination effectively remedies defects in the other three capacities: it exposes and resolves ambiguity, it tests or refreshes memory, and it brings into question possible defects in perception. By contrast, cross-examination may be less well suited to exposing insincerity. Studies of jury reaction to eyewitness testimony indicate that the jury does not function as an effective lie detector. Focus upon sincerity as the pivotal element could be justified if it is the most testable capacity; in fact, it may be the least. Alternatively, one might justify this focus on the ground that, although sincerity is less testable, sincerity problems occur far more frequently in the underlying population of potential hearsay evidence than do weaknesses in the other three capacities. This empirical assertion has not even been stated, much less proved, by those who appeal to circumstantial indications of sincerity when arguing for exceptions. Without facing such empirical questions and defending one particular position, it is impossible to rationalize singling out sincerity as the most important capacity. The current approach of justifying hearsay exceptions by appeals to the circumstantil guarantees of testimonial capacities cannot be defended by isolating sincerity, in terms of testability or frequency of occurrence. Thus, the traditional formulation is without rational foundation....

[T]he current method of justifying hearsay exceptions is the opposite of the proper approach. Instead of considering those testimonial capacities for which there are circumstantial guarantees of trustworthiness, one should focus upon those capacities for which there are not such guarantees. For example, the current approach allows a hearsay exception for excited utterances because of their alleged sincerity. The reliability of such utterances is dubious, however, because the declarant's perception and narration may be impaired. Regardless of strong guarantees as to sincerity, the evidence may remain unreliable.

2. Necessity. Although Wigmore puts forth the principle of necessity as coequal with the principle of reliability for the purpose of justifying exceptions to the rule against hearsay, necessity is addressed far less frequently in specific analyses of exceptions, and its prominence in the literature seems to exceed its impact upon the rules of evidence. In the Federal Rules of Evidence, it is one of the many requirements for admission under the residual exceptions but does not appear explicitly elsewhere. Even though the principle seems central to the justification for some exceptions, such as dying declarations, the rules make no distinction between "necessary" and other uses of the evidence....

Since necessity is a function of the other evidence available in a given case, it will be difficult to identify, a priori, any categories of hearsay--with the possible exception of dying declarations--that will be "necessary." Therefore, implementing the necessity principle involves according broad discretion to the trial judge. Even then, a circulatory problem arises within a single trial because the necessity of any evidence depends upon what other evidence is admitted. This difficulty is compounded by problems raised by the order of presentation, the difficulty of changing previous rulings, the potential for parties to manipulate the judge by failing to investigate or present other sources of evidence, and the sheer complexity of making rulings that depend upon the variety of possible configurations of other evidence in a given case....

[T]wo polar cases reveal how the principle of necessity may be just as likely to favor exclusion as admission. First, where much other evidence or far more credible evidence is available, there is no need to let in hearsay that may mislead the jury. The very existence of the other or better evidence, however, implies that, even if the jury's error in evaluating the hearsay is large, its error in deciding the case will be small since that decision reflects its consideration of all the other evidence in combination with the hearsay. By contrast, in the second case, where there is little or no other evidence probative of the issue, the evidence is most valuable to the case as a whole. Assume that a significant reliability gap initially exists. Since that gap arises from the jury's overvaluation of the evidence in question, one would expect significant error to remain in the jury's determination of the ultimate issue because no other information intervened in its decision process. It is precisely when the unreliable evidence is highly probative and little other evidence is available that the greatest danger appears. Thus, the greater the need, the greater the danger, and the less the need, the less the danger.

The principle of necessity thus directs attention away from the individual piece of evidence and towards its impact on the case as a whole. The correlation between necessity and the value of evidence to the case as a whole has always been recognized. What is generally ignored is the correlation between necessity and the impact of jury error upon its ultimate decision; the less other evidence is available, the less will be the opportunity to remedy or mitigate the impact of jury error in evaluating the given piece of evidence.

A formal analysis of how the necessity of the evidence affects both its value and its danger reveals that, a priori, the implications of the necessity criterion for determining the admissibility of evidence are indeterminate. The expected jury error in processing the evidence to reach its ultimate decision and the value of the evidence both increase as necessity increases. This is illustrated in (8)Figure 1. The amount and quality of other evidence is measured along the horizontal axis. The value of the evidence to the case as a whole--"Value"--and the expected error in the jury's decision resulting from admission--"Error"--are both measured along the vertical axis. For any category of hearsay, there are four possible cases. First, it is possible that error exceeds value for all degrees of necessity, justifying exclusion in all cases (illustrated in (9)Figure 1). Second, value might exceed error for all degrees of necessity, justifying admission in all cases ((10)Figure 2). In both cases the necessity of the evidence is irrelevant to the decision to admit or exclude. A third possibility is that value declines more rapidly than does error as the amount and quality of other available evidence increases (i.e., as the necessity of the evidence in question decreases). In other words, where little other evidence is available, value outweighs error, and the evidence should be admitted; where much is available, error exceeds value, and the evidence should be excluded ((11)Figure 3). The standard argument that necessity justifies the admission of hearsay assumes that this case is an accurate description of the world. The existence of a fourth case, however, indicates that the opposite result is equally plausible. This would occur if error is above value when little other evidence is available, justifying exclusion, but that error falls below value as more evidence is available, justifying admission ((12)Figure 4). In both case three and case four, the admissibility decision when little other evidence is available will be the opposite of the ruling when much other evidence is available. Neither case is complete without specification of where that reversal occurs. For example, (13)Figure 3 portrays a crossover where little other evidence on the issue is available, and in (14)Figure 4 the crossover does not occur until far more evidence is available. In other words, one must determine how much other evidence must be available to change the decision. Asserting that the reversal occurs at some point is only a first step toward a workable principle either for discretionary implementation by judges or for application to the debate over the delineation of hearsay exceptions. No attempt has been made to support the implicit empirical judgment reflected by adherence to case three, to specify the location of the switching point, or to examine the significance of the gap between error and value for any given level of necessity.(15)66

III. INCONSISTENCY OF THE HEARSAY RULES WITH JUDGE-JURY RELATIONS

Both the traditional analysis of hearsay examined in Part II and the framework presented in Part I take maximizing the accuracy of case results as the objective, thereby assuming the legitimacy of excluding hearsay on the grounds that it is unreliable or likely to be misperceived by juries. Yet one could use the same grounds to justify the exclusion of nonhearsay evidence, a result directly contrary to "the time-honored formula [that] credibility is a matter of fact for the jury, not a matter of law for the court."(16)67

The Federal Rules of Evidence provide that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Under this structure, exclusion is justified by fears of how the jury will be influenced by the evidence. However, it is not traditional to think of hearsay as merely a subdivision of this structure, and the Federal Rules do not conceive of hearsay in that manner. Prejudice refers to the jury's use of evidence for inferences other than those for which the evidence is legally relevant; by contrast, the rule against hearsay questions the jury's ability to evaluate the strength of a legitimate inference to be drawn from the evidence. For example, were a judge to exclude testimony because a witness was particularly smooth or convincing, there would be no doubt as to the usurpation of the jury's function. Thus, unlike prejudices recognized by the evidence rules, such as those stemming from racial or religious biases or from the introduction of photographs of a victim's final state, the exclusion of hearsay on the basis of misperception strikes at the root of the jury's function by usurping its power to process quite ordinary evidence, the type of information routinely encountered by jurors in their everyday lives.

Even if one were to accept the coherence of the two principles of reliability and necessity, hearsay provisions based on them would remain inconsistent with the common understanding of the role played by the rules of evidence in our system of adjudication. Outside the hearsay context, it is not generally required that evidence be necessary in order to be admissible. Furthermore, exclusion of evidence because it is unreliable is grossly inconsistent with our usual view of the jury's ability to process evidence and to make inferences. In considering absolute reliability, which is germane to the weight that should be given to evidence, the rulemakers and treatise writers approach the hearsay problems from the wrong perspective: they exclude evidence that they would discount or disbelieve if they were sitting as trier of fact rather than considering which evidence should be kept from a trier of fact.

The practice of regularly admitting hearsay evidence for nonhearsay purposes further illustrates the inconsistency of the hearsay rules with traditional conceptions of the role of the jury. Even if the jury is instructed that such evidence may only be used for nonhearsay purposes, the result will be little different than if the jury had been permitted to evaluate the evidence for the hearsay purpose as well. To have justified excluding the evidence as hearsay, the reliability gap must have exceeded the value of the evidence in its hearsay use. To justify reversal of that judgment, the value of the evidence in its nonhearsay use must be greater than the amount by which the gap had exceeded the value in its hearsay use. Yet this assumption is unwarranted since any nonhearsay use is considered sufficient to admit any evid. Rioux on a construction site in Rumford, Maine on September 10, 1979. The decedent was an employee of Commercial Concrete Corporation. Defendant Daniel was the general contractor on the project. The decedent was killed when he was struck on the head by a falling section of concrete-filled steel pipe. The pipe was part of a vertical concrete piping system being used to pour concrete on the upper levels of a structure which Daniel was erecting. The Plaintiff contends that Daniel had the duty and responsibility of properly erecting and maintaining the vertical piping and that the piping fell because it was inadequately supported. It is represented that prior to the occurrence of this accident, Daniel supported the vertical concrete pipe risers with the use of rope attachments to the structure of the building. After the accident, it is asserted, Daniel changed its method of securing these vertical risers by performing this function with welded U-bolts. The Plaintiff intends to introduce into evidence these subsequent "remedial" changes in the method of placing and securing the vertical risers. Plaintiff contends that such evidence is relevant to show negligence or other culpable conduct on the part of Daniel in connection with the collapse of the riser here causing injury.

In deciding the issues raised here, the Court must conduct two inquiries. First, it must determine whether the Maine or the Federal Rule of Evidence applies in this case. If the Maine Rule applies, it is clear that the evidence is admissible for the broader purpose asserted by Plaintiff and Commercial. Should the Court, however, determine that the Maine Rule does not apply, then it must consider whether the evidence is admissible under the second sentence of Fed. R. Evid. 407, which permits the utilization of evidence of subsequent measures where it is relevant to genuine factual issues other than those of the negligence or culpable conduct of a party in connection with the establishment of liability for an event. These inquiries will be addressed in the order just stated.

A

This action was initiated in this Court by a Complaint filed herein on January 21, 1980. The jurisdiction of this Court is based upon diversity of citizenship between the Plaintiff and the Defendants. The Plaintiff and Commercial argue that Rule 407 of the Maine Rules of Evidence applies to all counts of the Complaint in this diversity-based action. That rule allows subsequent remedial measures to be admitted into evidence for the purpose of proving negligence or culpability. Rule 407 of the Federal Rules of Evidence specifically precludes admission of evidence of subsequent remedial measures for the purpose of proving negligence or culpability; it does allow, however, the evidence to be presented for other purposes such as proving feasibility or control. The Maine Rule 407 allows evidence of subsequent remedial measures to be admitted for purposes of showing negligence, or other liability creating culpable conduct, on the basis of a deliberate policy decision. Plaintiff and Commercial argue that the Maine Rule 407 must be applied because this is a diversity action in which state substantive law applies, and that state law for such purpose includes the provisions of Maine Rule 407 with its distinctly substantive, policy-based, connotations....

Since the adoption of the Federal Rules of Evidence, distinguished commentators have taken the position that even in diversity cases the federal law of evidence applies in actions tried in federal court. Thus, Professors Wright, Miller and Cooper state:

Of all the procedural and quasi procedural rules that are applied in the federal courts, the Federal Rules of Evidence are least affected by the Erie doctrine. The governing principle is easily stated. If a [Federal] rule of evidence covers a disputed point of evidence, the Rule is to be followed, even in diversity cases, and state law is pertinent only if and to the extent the Rule makes it so.

C. Wright, A. Miller & E. Cooper, 19 Federal Practice and Procedure, 4512 at 190 (1982) (emphasis added). See also 10 Moore's Federal Practice, 57 (1982).

In the keystone case of Hanna v. Plumer, 380 U.S. 460 (1965), the United States Supreme Court upheld the application of Rule 4(d)(1) of the Federal Rules of Civil Procedure in federal trial proceedings despite the argument that Massachusetts law under Erie should control the adequacy of service of process in a diversity case. Although the application of the Federal Rule would be "outcome determinative," the Court noted that Rule 4(d)(1) had been recommended by the Advisory Committee to the Federal Rules and promulgated by the Supreme Court, subject to the review of Congress. In this situation, the Advisory Committee, the Supreme Court, and Congress had made an initial determination that the rule in question was procedural and, therefore, within the proper province of Congress and the courts to promulgate. Thus, according to the Court in that case:

When a situation is covered by one of the Federal Rules, the question facing the court is a far cry from the typical, relatively unguided Erie choice: the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions.

Id. at 471. The Court found that Congress has the power to promulgate rules for application in federal courts:

For the constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.

Id. at 472. In this case, to hold that a state rule of evidence supplants a federal evidentiary rule even if it were promulgated by the use of the same procedure as is utilized in the case of the Federal Rules of Civil Procedure would be, in essence, to hold that the Federal Rule exceeds the power of Congress to promulgate it because it cannot "rationally" be classified as procedural. It is significant to note that no federal rule of procedure or evidence has ever been struck down as exceeding Congress' constitutional power.(1)6

This Court is satisfied that the Hanna v. Plumer test applies to the Federal Rules of Evidence as well as to the Federal Rules of Civil Procedure. E.g., Gibbs v. State Farm Mutual Ins. Co., 544 F.2d 423, 428 n.2 (9th Cir. 1976). The actual circumstances of the promulgation of the Federal Rules of Evidence make it even more compelling that the same result be obtained by the application of the Hanna v. Plumer test to those Rules. After the Rules were drafted by the Advisory Committee, the Supreme Court reported the new Rules to Congress under the Rules Enabling Act, 28 U.S.C. 2072. Because the new Rules were controversial, Congress intervened, rewrote the Rules where Congress deemed such rewriting appropriate, and then enacted them as so rewritten directly. Congress placed no reliance on either the Rules Enabling Act or the Rules of Decision Act, 28 U.S.C. 1652. See Rules of Evidence, Pub. L. 93-595, 88 Stat. 1926 (1974). The effence otherwise excluded by the rule against hearsay. Thus, when focusing upon nonhearsay uses of evidence, courts implicitly ignore the original justifications for the exclusion of hearsay, a result that is not surprising since those justifications conflict with the usual view of the role of the jury.

Though the rule against hearsay is formally applicable to bench trials, it is in fact little used in the absence of a jury. The appropriateness of applying the hearsay prohibition to bench trials has been questioned on the ground that the hearsay rules reflect a concern with attributes peculiar to the jury, a position flowing comfortably from the analysis that focuses on jury perception. A variety of techniques are employed that, in effect, permit the admission of hearsay in nonjury trials. It is not surprising that these techniques arose given that judges presiding without a jury undoubtedly found the inconsistency between the treatment of hearsay and other evidence too glaring to tolerate, reinforcing the conclusion that the hearsay rules and debate are in fact directed more toward issues of evaluation than toward questions of admission. These practices also demonstrate that exclusion cannot rationally be premised on the traditional ground of unreliability because this rationale makes no distinction between whether a jury or a judge is the trier of fact. De facto consistency within the nonjury setting highlights the inconsistency of the hearsay rules with other rules of evidence when the jury is present.

IV. THE HEARSAY RULES AS A MEANS OF ENHANCING THE SOCIAL ACCEPTANCE OF OUR SYSTEM OF ADJUDICATION

Some explanation is necessary for the continued reliance upon the traditional hearsay analysis given that all justifications for the rules both fail on their own terms and conflict with accepted notions of the role of the jury. This Part offers one possible explanation of how the traditional approach came to be and why it tends to survive.

Society needs to have confidence in the outcomes produced by its system of adjudication. Criminal law most clearly dramatizes this need; when we contemplate punishment that deprives one of liberty, property, or even life, the perception of fairness is essential to quiet our collective conscience. Social acceptance is a function of how the system is perceived, and not of how it actually performs. The hearsay rules, though incoherent when viewed from the [traditional] perspective, might seem more comprehensible when viewed from a cynical perspective, ... as aimed at enhancing social acceptance by directly addressing society's perception of the system rather than the system's performance.

First, hearsay rules shield the system from possible embarrassment. Admitting hearsay generally creates the possibility that the declarant might later come forward to reveal that injustice resulted from the trier of fact's reliance on such evidence. Second, hearsay is distinctive in that its deficiencies can be observed readily by anyone outside the system. With other evidence, the jury functions as a "black box": its ability to observe demeanor, though limited in revealing truth, "justifies" deference to the jury's decision because the jury ostensibly has additional information that those absent could not possibly duplicate and those present could not fully communicate.

These two considerations indicate how a rule against hearsay enhances social acceptance by excluding evidence. Yet extensive exclusion of hearsay may itself diminish acceptance since we like to believe that the trier considers all relevant information in reaching its decision. Therefore, maximizing social acceptance implies that hearsay exceptions are appropriate where the danger of exposing error is less, whereas the Part I framework justifies exceptions where the danger of jury misperception is less.

The danger of exposing error is minimized by creating exceptions to the rule against hearsay when later contradictory statements from the declarant are unlikely to arise or would not prove embarrassing. The clearest illustration is the exception for dying declarations, the classic example of an exception of dubious validity by traditionally accepted criteria. Admissions by a party opponent would be allowed in evidence since "[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath." With respect to present sense impressions, excited utterances, and indications of the declarant's state of mind, the declarant's recollection of the events presented after a trial is no more and possibly less credible than the extrinsic (hearsay) evidence of the declarant's knowledge at the time of the incident. For business records and official public reports, the body responsible for the existence of the information is unlikely to surprise us later. Similarly, the admission of statements against interest by an unavailable declarant does not risk future embarrassment because declarants typically will not become available, and, even if one does, later contrary statements will not prove embarrassing. As these examples illustrate, the current pattern of hearsay exceptions seems quite rational as a reflection of the desire to enhance social acceptance by shielding the system from possible embarrassment.

The retention of rules excluding hearsay in non-jury trials despite widespread admission of hearsay in actual practice may also reflect the desire to promote social acceptance. Improperly admitted hearsay endangers the appearances of the system only if it appears that the trial court actually relied on the hearsay in making its decision. Current appellate practice, by invoking "the time-honored presumption that a trial judge does not utilize erroneously admitted evidence in rendering his verdict," preserves the appearance that such evidence was not a factor in the decision. The public's view of the courts may similarly decline if it appears that the trial judge is not considering admissible evidence. Appellate courts avoid this danger by inviting the trial judge to admit this evidence into the record. If the evidence in the record is disregarded by the trial judge, who believed it to be inadmissible,(17)100 the appellate court will still uphold the decision although the evidence was admissible, implicitly presuming that the evidence was considered in the decision.(18)101 This appellate procedure is supplemented by a veritable arsenal of weapons that increase the likelihood of upholding the admission of hearsay (and other evidence) by lower courts in both jury and nonjury settings. Since reliance on the hearsay is not explicit when any of these methods is used, the system's appearances are protected.

If this rationalization of the hearsay structure were the true explanation for its existence, one still would not expect it to be explicitly advanced in support of the hearsay rules since stating this rationalization is self-defeating; rules cannot successfully protect the appearances of a system if the rules are openly presented as serving that end. It seems implausible that the hearsay rules were consciously designed and subsequently modified to shelter the system from embarrassment and to preserve the jury's ability to function as a "black box." It seems plausible, however, that those operating within our system of adjudication would be motivated by a desire, perhaps subconscious, to feel that the system to which they have devoted their energy is worthy of society's acceptance as a system of justice.

Since the underlying purposes may remain subconscious and, in any event, could not be openly expressed, other justifications would be offered in their place. These surrogate justifications would give rise to a set of rules that only approximately mirror the rules that would result if the actual objectives were openly admitted. After the process of adjusting and amending the proffered justifications to fit the desired objectives more closely, one would expect the resultant patchwork of rules to appear confused and complex, much as the hearsay rules are today.

The hypothesis that the hearsay rules are designed to protect appearances explains the prominence in the hearsay debate of absolute reliability instead of the reliability gap. Keeping hearsay evidence from the jury because it is unreliable both seems necessary to avoid exposure of error, since nothing prevents outside observers from perceiving the deficiency, and lends additional external credibility to trials by giving the impression that the process is cleansed of such questionable evidence. Because the broad interpretations given to hearsay exceptions and the limited appellate scrutiny are not readily apparent to those outside the system, they do not seriously threaten the appearance afforded by appealing to reliability. The strong superficial appeal of reliability as a criterion makes it easy to understand how dependence upon it might have arisen during the evolution of our rules of evidence and why this dependence continues even now. By contrast, suggesting that one focus upon jury error ... directly presents the problem of the jury's inability to assess hearsay accurately, undermining any attempt to defend the system's appearances.

The principle of necessity is similarly attractive. Assurances that there is no other evidence probative on the issue shield the system from all sources of potential future embarrassment except from the hearsay declarant. Appeals to the criterion of necessity implicitly recognize the decline in value of the evidence as more evidence is available but overlook the decline in jury error. Both recognition of this shortcoming and attempts to rectify it necessarily direct attention to the jury's inability to evaluate hearsay.

This open recognition, which careful analysis of the reliability or the necessity criterion makes inevitable, engenders not merely suspicion about hearsay evidence but also a deep skepticism about the institution of trial by jury. Without the jury to insulate us from observing the inherent limitations upon factfinding, our system of adjudication is called into question....

The social acceptance rationale should be rejected as a normative basis for the hearsay rules for another more compelling reason.... [W]e tend to hide the limitations of the jury as a trier of fact while promoting an almost mystic view of our system of justice. To accept that such an approach produces sound results entails unwarranted optimism--a belief that what exists, although we never examine it or admit its nature even to ourselves, is either for the best or will improve if left to itself, perhaps for another century of incoherent evolution. Even if the legal profession is fully aware of what is at issue, contrary to the indications, ... there remain serious questions concerning whether it is appropriate for the profession to aim directly at social acceptance when making decisions about the course of adjudication on behalf of society at large. This secrecy also limits the range of our imagination when considering problems that continue to arise in the law of evidence and elsewhere. Finally, there are moral questions raised by acceptance of the framework of the current polemic: Can we continue to call our system "just" when we allow the signs of injustice to remain hidden from our own view?

V. CONCLUSION . . .

Since virtually all criteria seeking to distinguish between good and bad hearsay are either incoherent, inconsistent, or indeterminate, the only alternative to a general rule of admission would be an absolute rule of exclusion, which is surely inferior. More important, the assumptions necessary to justify a rule against hearsay--requiring that the jury's assessment of hearsay evidence, after possible remedies, generally exceed twice the value of the evidence--seem insupportable and, in any event, are inconsistent with accepted notions of the function of the jury. Therefore, the hearsay rules should be abolished.

1. 13. More formally:



Gap = Jury Perception - Absolute Reliability

Absolute Reliability = Value



This implies Gap = Jury Perception - Value



Therefore Gap > Value



is equivalent to Jury Perception - Value > Value



which yields Jury Perception > 2 x Value



as an equivalent condition.

2. 14. Many commentators reject the claim that there is any significant jury misperception at all.... No attempt has been made to quantify the degree of overevaluation.

Given the range of efforts over the decades attempting merely to explain the hearsay rules and the difficulties in teaching the intricacies of the hearsay rules to law students, one might question the ability of the jury to evaluate hearsay evidence accurately. See Blackmore, Some Things About Hearsay: Article VIII, 6 Cap. U.L. Rev. 597, 597 (1977). It would be a mistake, however, to infer from the complexity of the hearsay rules that evaluation of most hearsay evidence is beyond the competence of a jury.

One qualification is necessary in the case of exceptionally unreliable hearsay evidence (for example, with a value of one on the 100 point scale) where it may be plausible that the jury assessment would exceed twice the value (in this example, an assessment of three). Such evidence may be excluded because of the waste of time, Fed. R. Evid. 403, and in any event the impact of such slight error would be de minimis. Moreover, for evidence of such low credibility, it is not clear that the jury will usually overassess the evidence instead of giving it too little weight or ignoring it completely.

3. 19. Weinstein, Alternatives [to the Present Hearsay Rules, 44 F.R.D. 375 (1967)] at 379-80; Weinstein, Probative Force [of Hearsay, 46 Iowa L. Rev. 331 (1961)] at 338-42. He only analogizes loosely to a balance similar to considerations of prejudice, Fed. R. Evid. 403; Weinstein, Probative Force, supra, at 338-39. Since the prejudice rule is already applicable to all evidence, his position for all practical purposes supports abolition of the rule against hearsay. However, his comment that "[t]he circumstantial proof of credibility which gave rise to the class exception may continue to be utilized in the particular case in assessing probative force,'' id. at 339, implies that his intention falls short of abolition. In any event, he provides no framework for the required balancing of value and jury overassessment....

4. 20. Actually, Judge Weinstein's approach could be justified if reliability were near or above 50. For example, if some evidence had only an absolute reliability of 45, admission would be proper for any jury perception below 90--which arguably includes most cases--and the greatest possibl


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