Judge Richard Posner is proposing a rewrite of the hearsay rule and its exceptions in a concurring opinion in a gun case decided by the Chicago-based 7th U.S. Circuit Court of Appeals.
Posner derides the approach taken by the Federal Rules of Evidence (PDF) in his Feb. 13 concurring opinion (PDF). “The ‘hearsay rule’ is too complex,” Posner wrote, “as well as being archaic.” How Appealing and EvidenceProf Blog note Posner’s comments.
Posner instead suggests a flexible approach based on the catchall Rule 807, which allows the admission of some hearsay in the interests of justice even if it is not covered by a specific exception.
Posner wrote in a case in which two exceptions to the hearsay rule were at issue: the “excited utterance” and the “present sense impression.”
The rationale behind the “present sense impression” exception is that the immediacy reduces the likelihood of deliberate or conscious misrepresentation. Not true, Posner said, citing studies that say less than one second is needed to fabricate a lie.
Posner also questioned the justification for the excited utterance exception, based on the assumption that excitement can produce utterances free of conscious fabrication. How can there be any confidence that a statement made under psychological stress is reliable? Posner asked.
“Like the exception for present sense impressions,” Posner writes, “the exception for excited utterances rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.”
Posner says he does not have a goal of reducing the amount of hearsay evidence in federal trials. Rather, he is proposing an alternative that would “swallow” the exceptions in Rules 801 through 806 in the Federal Rules of Evidence.
Posner says he would use a simplified version of Rule 807, the “residual exception,” and allow hearsay in these circumstances: “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.”