§31.13 "RES GESTAE"

• Jurisdiction: North Carolina

§31.13. "RES GESTAE"

The Federal Rules avoid the use of the term "res gestae," a confusing phrase which encompasses both evidence that is not hearsay and evidence that is hearsay but falls within one of several exceptions to the hearsay rule. Wigmore believed that the "phrase res gestae has long been not only entirely useless, but even positively harmful."¹²⁰ Many courts have agreed: "As for . . . 'res gestae', if it means anything but an unwillingness to think at all, what it covers cannot be put in less intelligible terms."¹²¹

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Notes:

^[120] 6 Wigmore, Evidence § 1767, at 255 (Chadbourn rev. 1976). See also Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 229 n. 7 (1922) ("The marvelous capacity of a Latin phrase to serve as a substitute for reasoning, and the confusion of thought inevitably accompanying the use of inaccurate terminology, are nowhere better illustrated than in the decisions dealing with the admissibility of evidence as 'res gestae.' It is probable that this troublesome expression owes its existence and persistence in our law of evidence to an inclination of judges and lawyers to avoid the toilsome exertion of exact analysis and precise thinking."); Sir Frederick Pollock, 2 Holmes-Pollock Letters 284-85 (M. Howe ed. 1941) ("I am reporting, with some reluctance, a case on the damnable pretended doctrine of res gestae, and wishing some high authority would prick that bubble of verbiage; the unmeaning term merely fudges the...