1974, March, Pg. 1. Hearsay Evidence: The New Federal Rules.

• Author: By W. David Pantle

3 Colo.Law. 1

Colorado Lawyer

1974.

1974, March, Pg. 1.

Hearsay Evidence: The New Federal Rules

1Vol. 3, No. 5, Pg. 1Hearsay Evidence: The New Federal RulesBy W. David PantleW. David Pantle, Denver, is a member of the firm of Dawson, Nagel, Sherman & Howard

When the Rules of Evidence for United States Courts and Magistrates become effective, they will make extensive changes in the rules of evidence with which practicing attorneys are now familiar. One area of change will be that the exceptions to the rule excluding hearsay evidence will be made even more numerous. Of particular impact will be an exception admitting factual findings resulting from public investigations, such as hearsay contained in police reports, another admitting statements in documents which have been in existence longer than twenty years, and another admitting any statement having guarantees of trustworthiness comparable to the other exceptions. The purpose of this article is to review briefly the proposed hearsay rules and to compare some of the changes proposed by them with the rules of evidence now applied in the Colorado state courts and largely followed in the United States District Court for the District of Colorado.

At the time of this writing the Federal Rules of Evidence have not yet become effective. The rules were originally adopted by the United States Supreme Court in November 1972 to become effective July 1, 1973. Under the statutory procedure for the Court to adopt new rules of "practice and procedure,"(fn1) the proposed rules were transmitted to Congress for its review. Congress intervened and enacted legislation providing that the proposed rules would not take effect without further affirmative congressional action. The opposition to the rules in Congress is mainly concerned with proposed rules regarding privileges not to testify. Enactment of the rules, with the hearsay rules probably in their present form, appears to be likely, and various seminars concerning the rules have recently been held in Colorado and elsewhere. Thus it does not appear to be premature to discuss the proposed hearsay rules.

When the rules become effective for the federal courts, they will not automatically apply in the Colorado state courts as well. Rule 43(a) of the Colorado Rules of Civil Procedure provides that all evidence shall be admitted in the state courts which is admissible under state or federal statutes or under state rules of evidence. A phrase admitting evidence admissible under rules of evidence applied in the United States District Court for the District of Colorado was deleted from the rule effective July 30, 1970. However, the final adoption of the

2federal rules for the federal courts might lead to the adoption of similar state court rules.The new rules stop short of taking the approach now common for administrative proceedings of admitting any evidence which the trier of fact is interested in hearing, and of allowing traditional objections to go only to the weight of such evidence.(fn2) Instead the rules preserve many of the present rules of evidence, but soften or eliminate some of the present grounds for exclusion of evidence. In a few instances, the proposed rules would exclude evidence which is presently admissible by the Colorado authorities.

Hearsay Rule

The hearsay rule, like most rules of evidence, is a rule excluding a particular type of evidence if a timely objection to admission is made. The rule prohibits the admission of statements made by a person not present in court for cross-examination. The rule has many exceptions for situations where the second-hand information is likely to be reliable, and a few exceptions where hearsay will probably be the only type of evidence available. The rule and its exceptions have developed and changed over a long period of time, and the process of change would be greatly accelerated by adoption of the proposed rules.

The general rule is stated in proposed Rule 802 as: "Hearsay is not admissible except as provided by these rules or by other rules adopted by the Supreme Court or by Act of Congress."

Rule 803 contains twenty-four exceptions to the rule even where the declarant is available as a witness. Rule 804 contains six more...