The Mystery of the Available Declarant


Charge: mail fraud and racketeering. Part of the prosecution's case is that D, the mayor of A, received bribes in exchange for favoring B Bus Company in its bid for the contract to bus A school children to and from school. The prosecution presented the testimony of C, a member of the city council, which had to recommend the contractor, that certain unidentified councilors had told him that the Mayor "would not mind" if the council recommended B Bus Company. D objects. The prosecution argues that the evidence is admissible under 803(24). What ruling and why?

Consider the different approaches advocated by the House and Senate committees to a residual hearsay exception (Rules 803(24); 804(b)(5)). Compare these views to the pre-Federal Rules view expressed by the court in Dallas County above and the results in Bailey, West, and Garner, above. Have these open-ended provisions "emasculated" the hearsay rules and undermined the rationale of codification? Have they introduced too much uncertainty in civil cases and exposed the defendant in criminal cases to confrontation clause violations? Or, on the other hand, are these exceptions an appropriate attempt to prevent ossification of the rules consistent with the policies on which the rules are based? Should the rule against hearsay, and its exceptions, be abolished?


The hearsay rules continue to generate a steady stream of academic and judicial attention, most of it critical. New calls for reform of the hearsay doctrine are heard every generation. One of the most recent revivalist meetings occurred in 1991 in Minnesota under the sponsorship of Roger Park, a leading "post-modernist reformer." The 1991 Minnesota Hearsay Reform Conference produced about five pounds of paper on the subject, ranging from Kenneth Graham, Jr.'s "Q. What Happened to the Last Generation of Reformers?" ("A. They all died."), Hearsay Conference Paper (1991), to Richard Friedman's Towards a Partial Economic, Game-Theoretic Analysis of Hearsay, 76 Minn. L. Rev. 723 (1992). Among all the commentators, Professor Park, Christopher Mueller, and Eleanor Swift have taken the point in the latest attack on the hearsay citadel.

Professor Mueller summarizes the modern attacks on hearsay as resting on four "powerful points":

(1) The doctrine excludes probative evidence of the kind that most of us rely on regularly in our daily lives.

(2) Juries are much better educated than they used to be and are sophisticated enough to evaluate hearsay. With modern juries, we run greater risks from excluding hearsay than admitting it.

(3) The exceptions make little sense, often excluding what should be admitted and admitting what should be excluded.

(4) The doctrine is too complicated and thus difficult to apply. See Christopher Mueller, Post-Modern Hearsay Reform: The Importance of Complexity, 76 Minn. L. Rev. 367 (1992).

Although agreeing with these criticisms at least in part, Mueller nonetheless finds much to value in the traditional approach to hearsay, even if this value was not explicitly recognized until recently by the "post-modernists." According to Mueller, the current structure is actually reasonably successful in incorporating a complex set of values, including reliability in fact-finding and pretrial and trial process concerns that should distinguish the rules of proof in law courts from the rules by which individuals make fact-based decisions in other aspects of their lives. Id.

Park, A Subject Matter Approach to Hearsay Reform, 86 Mich. L. Rev. 51 (1987), advocates a distinction between the admissibility of hearsay in civil and criminal cases. According to Park, in civil cases hearsay that fits within an established exception should be admitted and other hearsay should be admitted on proper notice with no discretionary screening by the trial judge. In criminal cases, however, the "principal features" of the hearsay rule should be retained with some incremental changes tailored to particular criminal trial issues in order to protect the accused against "misuse of governmental power."

Professor Swift rejects both polar extremes in modern hearsay doctrine--categorical or class exceptions for "reliable" hearsay (the present system under the Federal Rules), including reform of the currently prescribed exceptions, and abolition of the rule and substitution of broadly gauged judicial discretion to admit good hearsay and exclude bad hearsay. The problem with the current hearsay regime, Swift says, is that it is both overinclusive and underinclusive in what it admits. Some hearsay is excluded that should be admitted because the notions of reliability on which the doctrine rests are too narrow; but some hearsay is admitted that should be excluded because of a lack of foundational information available to the trier of fact to assess candor, meaning, perception, and memory. On the other hand, Swift argues that, on the whole, the rule "buttresses the rationalist assumptions underlying adjudicative factfinding and implements the traditional assignment of comparative burdens borne by the parties." Rather than refine each exception or throw the whole artifice out on its ear, Swift argues that courts should admit hearsay if the proponent presents "foundation facts" that permit the jury to evaluate the hearsay intelligently. This would be accomplished through the testimony of a "process foundation witness" who would testify to the circumstances in which the declarant perceived, remembered, and spoke, and offer information about the candor of the declarant. (Provisions are made in Swift's approach for when such a witness cannot be obtained, but in many cases application of the Swift approach would force the proponent to call the declarant because only the declarant could present the foundation facts.) See Swift, A Foundation Fact Approach to Hearsay, 75 Cal. L. Rev. 1339, 1363 (1987); Swift, Abolishing the Hearsay Rule, 75 U. Cal. L. Rev. 495 (1987); Swift, The Hearsay Rule at Work: Has It Been Abolished De Facto by Judicial Decision?, 76 Minn. L. Rev. 473 (1992).

For the interested student of hearsay, there is no shortage of critical literature. Other recent work of interest includes Peter Tillers & David Schum, Hearsay Logic, 76 Minn. L. Rev. 813 (1992) (using "signal detection theory" to analyze the hearsay rule and its exceptions, it is impossible to substantiate the rationality or irrationality of the rule's "coarse legal categorizations," which therefore may be "a rule of thumb [that] is sometimes an efficient strategy for dealing with otherwise intractable complexity and subtlety"), id. at 857-858, and Carlson, Experts as Hearsay Conduits: Confrontation Abuses in Opinion Testimony, 76 Minn. L. Rev. 859 (1992) (advocating an "active role" for courts in reviewing the bases for expert testimony under Rule 703 to police for unauthenticated and unreliable "back-door" hearsay).

For the more radical approach to hearsay--abolish it--consider the following note.

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