Twist and Shout and Truth Will Out: an Argument for the Adoption of a "safety-valve" Exception to the Washington Hearsay Rule

• Publication year: 1988
• Citation: Vol. 12 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 12, No. 1FALL 1988

ARTICLES

Twist and Shout and Truth Will Out: An Argument for the Adoption of a "Safety-Valve" Exception to the Washington Hearsay Rule

George R. Nock(fn*)

There is no more obnoxious specimen of migratory waterfowl than the canard that judges and lawyers don't care about truth. Despite the unlimbering of professional shotguns behind thousands of duck blinds, the bird flies on, flapping its wings about our heads and occasionally besmirching us with its ordure. It is borne aloft not by its meager wingpower, but upon the thermal currents of air arising from the fields we have plowed so as to turn under truth in the hope of raising something better. The plowing under of truth is necessary, or at least defensible, when done in the interest of harvesting some worthy privilege.(fn1) But when done in the interests of the profession, it is not merely indefensible, it is futile. Truth, in such cases, will not merely regrow; it will penetrate asphalt, macadam, or even concrete in its relentless effort to reach the light.

That "truth will out" stems not from any quality mystically inhering in truth itself. Rather, in a legal context, it stems from the simple fact that judges and lawyers really do care about truth. In fact, we are enraptured by and endlessly fascinated with truth. As the best-known Barrett of Wimpole Street might have put it, we love truth with the passions put to use on our lost saints, and with our childhood's faith.(fn2) But the truth for which our actions show our love is truth incarnate; we work endlessly, tirelessly, and passionately to bring to light truth in any particular case. Our love for truth as an abstraction is manifest, if at all, only in hollow declarations.

It is our differential devotion to truth in the abstract and in the concrete that goes to the heart of the problem dealt with here. We pay lingual homage to truth as an abstraction, while consenting to its subordination to other values, some of them base. But the subordinating institutions fall ultimately in the path of our passionate and relentless pursuit of truth in specific cases.

These maunderings are prompted by reflection upon a venerable, though spare, line of Washington decisions demonstrating the vulnerability of restrictive hearsay rules to the onslaught of truth. This Article will focus on two decisions of the Washington Supreme Court illustrating the unfortunate expansion of certain hearsay exceptions in order to accommodate truth, show that the expansion could have been avoided had Washington adopted a "general" exception comparable to that found in the Federal Rules of Evidence, and propose the adoption of an exception shorn of the defects of the rejected federal version.

The Washington Supreme Court, on the recommendation of the Judicial Council Task Force on Evidence, adopted Evidence Rules, effective in 1979. The Rules were drawn, and largely adopted verbatim, from the Federal Rules of Evidence. The Federal Rules, which became effective in 1975, were drafted by an Advisory Committee representing all branches of the profession and appointed by the Chief Justice of the United States.(fn3) The Committee presented the Rules to the Supreme Court, which proposed them to Congress, which ultimately adopted them(fn4) with significant changes. One of the purposes of the Rules was to have a set of clear, easily applied rules, uniform throughout the federal court system. But the general thrust of these rules, and one of their most attractive features, was to expand the categories of admissible evidence in the hope and belief that truth would thereby more easily be found. One of the key devices employed to expand admissibility was to minimize the exclusionary effect of the hearsay rule by narrowing the definition of hearsay(fn5) and by enlarging both the number and scope of exceptions to the rule.(fn6) When Congress had finished its surgery on the Rules, and adopted them in their present form, they enumerated twenty-seven specific exceptions(fn7) to the hearsay rule and eight categories of statements classified as nonhearsay despite falling within the general definition of hearsay.(fn8) The eight categories are classifiable for most purposes as additional exceptions. The Rules also contained two identically worded general exceptions, often given the faintly pejorative appellation, "catch-all" exceptions.(fn9)

The theory of the hearsay rule is that the truthfulness of out-of-court statements, in general, cannot be properly determined by a trier of fact because of the inability to assess, through cross-examination, the testimonial capacities (memory, perception, sincerity, clarity) of the maker of the statement.(fn10) The theory of exceptions to the hearsay rule, be they characterized as such, or as categories of nonhearsay despite falling within the general definition of hearsay, is that they provide an opportunity to assess these testimonial capacities, or deal with statements made under circumstances guaranteeing the existence of one or more of these capacities.(fn11) Put differently, statements within the exceptions present few or none of the impedimenta to reliability found in rank hearsay.

A lesson, laboriously learned over time, was not lost on the architects of the Federal Rules: neither the wisdom of the common law nor the imaginations of the best minds in the field could foresee all possible circumstances justifying the admission of hearsay. They thus provided for general, or catch-all exceptions, under which hearsay of clear reliability could, on an ad hoc basis, be admitted despite its failure to fall within a recognized exception.(fn12)

The general exceptions were the piece de resistance of the Federal Rules' commitment to the discovery of truth. Though severely attacked and the subject of great attention, they emerged, battered and bloody, but in recognizable form, from the legislative process.

The general exceptions did not, however, survive the process of adapting the Federal Rules to Washington law. Even in their weakened condition, they struck terror into the hearts of the drafters of the Washington Evidence Rules (ER), who dispatched them with a terse death warrant. The reasons given boil down to these: (1) a lack of uniformity among trial judges in applying the exception, "which would make preparation for trial difficult;" (2) the assumption that "even the most conscientious of judges" would find it "extremely difficult to follow" the guidelines of the Federal Rules' exception; (3) the inability of appellate courts to remove "doubt whether an affirmance of an admission of evidence under the catch-all provision amounted to the creation of a new exception with the force of precedent or merely a refusal to rule that the trial court had abused its discretion;" and (4) the fact that courts have "room to construe an existing hearsay exception broadly in the interest of ascertaining truth . . . ."(fn13)

The stated reasons for rejecting a general exception countenance the subordination of truth to lesser values in two ways. First, they betoken a desire for rules capable of mechanistic and predictable application, which will necessarily suppress truth by barring probative evidence. This desire is born of a preference for personal convenience and a conviction that the bench, even aided by the bar, is incapable of making the careful judgments necessary to permit the discovery of truth. Second, they deprecate truth by encouraging the admission into evidence of falsehood through the indiscriminate lowering of existing barriers to admissibility.

Here begins the rise of a veritable Mesabi Range of irony that looms over the entire problem explored in this Article.

The first irony is that the problems of unpredictability and lack of uniformity hypothesized by the Task Force do not appear to exist in the federal courts and other jurisdictions adopting the general exceptions of the Federal Rules.(fn14) More importantly, the Task Force addressed these phantom problems only by avoidance. The assumed difficulty in preparation for trial when attempting to predict a trial court's ruling on admissibility could easily be solved by requiring a pretrial determination of any issue that could be anticipated to arise under a general exception. The problem of lack of uniformity among trial judges could be solved, or at least ameliorated, by the prescription of detailed criteria for determination of those issues. Instead of addressing these points by creative modification of the Federal Rules, the Task Force simply deleted the general exceptions.

The second irony is that the Washington Supreme Court adopted a report so gratuitously contemptuous of the Washington bench. The suggestion that Washington appellate courts cannot make clear in their opinions which of their rulings have precedential force and which do not is an imputation to those bodies of disqualifying incompetence. The implication that the trial bench, with the assumedly limitless adversarial assistance of bar, is incapable of making reasoned and reasonably consistent determinations on the probative value of hearsay evidence is calumnious, if not contumacious.

The third irony is that the discretion and resultant uncertainty involved in a general exception to the hearsay rule are substantially less than those inherent in other aspects of the Rules, notably ER 403 and 609, both of which were lifted blithely...