§ 33.02 Rationale for Hearsay Exceptions

• Jurisdiction: United States

§ 33.02 Rationale for Hearsay Exceptions

Hearsay exceptions are based on some circumstantial guarantee of trustworthiness that is thought to warrant admissibility notwithstanding the lack of cross-examination. Recall the hearsay dangers: perception, memory, narration, and sincerity risks.¹ The reduction or elimination of one or more of these risks typically supports an exception. Sincerity dangers, for example, are reduced or eliminated with excited utterances (Rule 803(2)) because the declarant's faculties are suspended while under the influence of a startling event.² There may be more than one justification for an exception. For instance, there is also not much of a memory risk with excited utterances because the statement closely follows the event. The rationale for each exception is critical because the requirements of an exception track its rationale.

Most exceptions are also supported by a necessity or practical convenience argument.³ The necessity rationale is clearly present in the Rule 804 exceptions, because the unavailability of the declarant is required as a condition of admissibility. The choice is between admitting the hearsay statement or providing the jury with nothing.

The Rule 803 exceptions, however, also may be justified upon a modified necessity argument. Business⁴ and public records⁵ are examples; that the persons who made the record will remember making it is typically remote. Moreover, with other exceptions, the hearsay statement is thought to be superior to the declarant's trial testimony.⁶

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Notes:

^[1] See supra § 31.02 (discussing rationale for hearsay rule).

^[2] Reduced sincerity risks also support the exceptions for (1) present sense impressions (Rule 803(1)), (2) dying declarations (Rule 804(b)(2)), and (3) declarations against interest (Rule 804(b) (3)), among others.

^[3] Wigmore argued that all exceptions were based on these two considerations: "a circumstantial probability of trustworthiness, and a necessity, for the evidence." 5 Wigmore, Evidence § 1420, at 251 (Chadbourn rev. 1974). According to Wigmore, the guarantee of trustworthiness for every exception is based upon some "practicable substitute for the ordinary test of cross-examination. We see that under certain circumstances the probability of accuracy and trustworthiness of statement is practically sufficient, if not quite equivalent to that of statements tested in the conventional manner. This circumstantial probability of trustworthiness is found in a...