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Rethinking The Rationale(S) For Hearsay Exceptions, Stephen A. Saltzburg
Rethinking The Rationale(S) For Hearsay Exceptions, Stephen A. Saltzburg
Fordham Law Review
The thirty-seven principal provisions that permit out-of-court statements to be admitted for their truth under the Federal Rules of Evidence are found in Article VIII of the Rules. There are eight provisions in Rule 801(d), twenty-three provisions in Rule 803, five provisions in Rule 804 and one provision in Rule 807 that can be relied upon to admit hearsay evidence for its truth value.
The Philip D. Reed Lecture Series: Symposium On Hearsay Reform, Panel Discussion
The Philip D. Reed Lecture Series: Symposium On Hearsay Reform, Panel Discussion
Fordham Law Review
This Panel Discussion was held on October 9, 2015, at John Marshall Law School. This transcript of the Panel Discussion has been lightly edited and represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.
The Hearsay Rule As A Rule Of Admission Revisited, Ronald J. Allen
The Hearsay Rule As A Rule Of Admission Revisited, Ronald J. Allen
Fordham Law Review
Now to substance. To intelligently analyze what changes to the hearsay rule should be considered, one needs to examine: first, the overall objectives of the field of evidence; second, the particular objectives of the Federal Rules of Evidence; third, how well the hearsay rule advances, or retards, those objectives; and finally, the sense and sensibility of any proposed changes.
Prior Statements Of Testifying Witnesses: Drafting Choices To Eliminate Or Loosen The Strictures Of The Hearsay Rule, Daniel J. Capra
Prior Statements Of Testifying Witnesses: Drafting Choices To Eliminate Or Loosen The Strictures Of The Hearsay Rule, Daniel J. Capra
Fordham Law Review
One of the panels at the Symposium on Hearsay Reform—sponsored by the Judicial Conference Advisory Committee on Evidence Rules— considered whether the federal hearsay regime should be changed to provide for greater admissibility of prior statements of testifying witnesses. This Article is intended to provide some background to the questions addressed by the panel and to consider how the Advisory Committee on Federal Rules of Evidence (“the Advisory Committee” or “the Committee”) might best implement an expansion of admissibility of prior witness statements should it decide that such an expansion is warranted.
Forward Progress: A New Pattern Criminal Jury Instruction For Impeachment With Prior Inconsistent Statements Will Ease The Court’S Burden By Emphasizing The Prosecutor’S, Hugh M. Mundy
Fordham Law Review
In this Article, I discuss the history of Rule 801(d)(1)(A), focusing on the origins and importance of the Rule’s restrictive language. In addition, I review the current federal landscape of pattern criminal jury instructions for witness impeachment with a prior inconsistent statement. Finally, I propose a revised jury instruction designed to clarify juror confusion while maintaining the critical safeguards for substantive admissibility of prior inconsistent statements.
On Hearsay, Richard A. Posner
On Hearsay, Richard A. Posner
Fordham Law Review
I need to place the remarks that follow in context. And that means I need to acknowledge a number of heresies: I don’t like legal jargon; I don’t like the complexity of legal jargon; I don’t like the legal profession’s indifference to brevity; I don’t like the tendency of lawyers and judges always to be looking to the past for answers to novel questions; and I don’t consider law to be a science or remotely like a science. I want law to be simple and commonsensical and forward-looking. I take my judicial credo from a poem by the great Irish …
Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter
Reality Check: A Modest Modification To Rationalize Rule 803 Hearsay Exceptions, Liesa L. Richter
Fordham Law Review
The Federal Rules of Evidence (or “the Rules”) identify hearsay that is admissible, notwithstanding the classic hearsay prohibition, by delineating categories of hearsay statements that may be admitted into evidence. For example, “dying declarations” of now-unavailable declarants may be admitted in homicide prosecutions or civil cases. “Excited utterances” relating to a startling event also may be admitted for their truth. The purported justification for admitting certain categories of hearsay rests upon the inherent reliability of human statements uttered in certain contexts, as well as litigants’ need for crucial evidence to build cases.
Prior Inconsistent Statements And Substantive Evidence—Federal Rule 801(D)(1)(A): The Compromise, Stephen A. Saltzburg
Prior Inconsistent Statements And Substantive Evidence—Federal Rule 801(D)(1)(A): The Compromise, Stephen A. Saltzburg
Fordham Law Review
Federal Rule of Evidence 801(d)(1)(A) is a compromise. The Supreme Court’s version of the Rule, which it submitted to Congress in 1972, would have made all prior inconsistent statements of a witness present in court for cross-examination admissible as substantive evidence. The Court’s proposal was strongly favored by the Advisory Committee on the Federal Rules of Evidence (or “the Advisory Committee”) members who drafted the Rule. They submitted it to the Court knowing that it was consistent with the approach taken by some states and favored by authorities like John Henry Wigmore, Edmund Morgan, and Charles McCormick. But the Court’s …
Prior Inconsistent Statements: The Simple Virtues Of The Original Federal Rule, Daniel D. Blinka
Prior Inconsistent Statements: The Simple Virtues Of The Original Federal Rule, Daniel D. Blinka
Fordham Law Review
How well do hearsay rules function under the current Federal Rules of Evidence? One issue, dormant yet pulsating beneath the surface for decades, involves the admissibility of prior inconsistent statements by witnesses. The long-standing “orthodox” rule admitted the prior statement only to impeach the witness’s trial testimony; it could not be used as substantive evidence of the facts asserted. In 1972, the Advisory Committee on the Federal Rules of Evidence (“the Advisory Committee” or “the Committee”) proposed an innovative rule permitting all prior inconsistent statements to be used both for impeachment and as substantive evidence—a sea change in practice. Congress, …
The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin
The British Experience With Hearsay Reform: A Cautionary Tale, Mark S. Brodin
Fordham Law Review
Among the proposals being considered by the Advisory Committee on the Federal Rules of Evidence (“the Committee”) is the scrapping of the categorical exception regime for hearsay, leaving questions of reliability and admissibility ad hoc to district court judges along the lines of Federal Rules of Evidence (FRE) 403 and 807. Over the past decades, the British have moved toward this approach, and it is the purpose of this Article to identify the lessons that can be learned from that experience, especially with regard to criminal prosecutions and the right of confrontation.