Abolish the Hearsay Rule: the Truth of the Matter Asserted at Last (the Second of a Two-part Article)
| Publication year | 2011 |
Fall 2011 #4. Abolish The Hearsay Rule: The Truth Of The Matter Asserted At Last (The second of a two-part article)
VOLUME 26 , NUMBER 4, Fall 2011
This is a two-part article that advocates for the abolition of the hearsay rule of M.R. Evid. 802 in civil proceedings. In the Summer edition of the Maine Bar Journal, Part I reviewed the rationale for the hearsay rule and concluded that the perceived dangers no longer justify the exclusion of relevant hearsay evidence in the administration of civil justice.(fn1) Part 2 now sets out, in detail, as to how the abolition of the hearsay rule would work in practice and what procedural safeguards should be implemented.
How Would it Work in Practice?
Procedural safeguards are the necessary corollary to the successful abolition of the hearsay rule. They protect against unfairness and avoid abuse of the power to introduce hearsay evidence. Maine jurisprudence already embraces a form of procedural safeguards in child protection proceedings, but these are limited in scope and application.(fn2) The model operating in England and Wales offers a broader approach that applies to all civil litiga-tion,(fn3) and its procedural safeguards are "carefully worked-out"(fn4) and elegant in their simplicity.(fn5) More to the point, they can be readily adapted to Maine civil practice.(fn6)
Hearsay Notice: Content, Service and Filing
The primary safeguard is the hearsay notice. Its purpose is to provide the parties with sufficient time to "mount an effective challenge to contentious evidence and to bring about timely identification of the material issues, and consequently to save costs and time."(fn7) In practice, there are three aspects to the hearsay notice: content, service and filing.
First, a hearsay notice would be a pleading subject to M.R. Civ. P. 11(a). It would be supported by an affidavit(fn8) that describes the hearsay evidence in reasonable detail and includes a copy of the documentary hearsay evidence or the written form of oral hearsay(fn9) These details provide the receiving party with an opportunity to deal with matters arising from the hearsay evidence, such as details of the declarant; the context of the hearsay evidence (time, place and circumstances of the statement); and why an available declarant will or will not be called as a witness.(fn10)
Second, the offering party would serve the hearsay notice on all parties "not later than 15 days after the discovery deadline,"(fn11) which is the same for the exchange of witness and exhibit lists. If a receiving party objects to the hearsay notice, then that party must inform the offering party within seven days of service.(fn12) This would allow the offering party to reconsider its decision as to whether the available declarant should or should not testify at trial. It would also allow the receiving party to prepare impeachment evidence for use at trial and, in certain circumstances, to file a motion "not later than 30 days following the close of discovery"(fn13) for permission to call an available declarant not called as a witness. This timetable is in line with motion practice in civil proceedings, namely paragraphs seven and eight of the Standard Scheduling Order applicable in Superior Court(fn14) given that a scheduling order is discretionary in District Court. Of course in the context of a motion for summary judgment, the timetable to file a hearsay notice and supporting affidavit(fn15) would remain the same as that for a party to file an affidavit supporting or opposing the motion for summary judgment.(fn16)
Third, the offering party would file the hearsay notice with the clerk of court at least seven days prior to trial, which is the same timetable for introducing evidence from deposition or interrogatories.(fn17)
This pretrial procedure puts the court and other parties on notice of a party's clear intent to introduce hearsay evidence, whether at the summary judgment stage or at trial.(fn18) In preparing for the trial, a hearsay notice should not be considered a replacement for live testimony from an available declarant;(fn19) "the general rule is that any fact that needs to be proved by evidence of a witness should be proved by oral evidence."(fn20) Hearsay evidence should be used sparingly where direct evidence is available, and moderately by consent or where it concerns a peripheral or non-contentious matter.(fn21) As to the failure to comply with the notice requirements, such as late notice or a witness' oral hearsay statement made during direct or cross-examination,(fn22) it is immaterial to the issue of admissibility. Such failure affects the weight of the hearsay evidence(fn23) and may well attract costs or other sanction by the trial judge.(fn24) T o hold otherwise "could have the effect of simply re-introducing the rule against hearsay."(fn25)
Trial Judge's Broad Discretion to Admit or Exclude Evidence
The abolition of the hearsay rule does not alter the rules on relevance, as set out in M.R. Evid. 401 to 403.(fn26) The golden rule is that all relevant evidence, in whatever form, is admissible provided that its probative value is not substantially outweighed by other risks such as unfair prejudice, confusion or waste of time. Whether hearsay evidence should be admitted or excluded is subject to the trial judge's broad discretion; nothing here affects the exclusion of evidence on other grounds,(fn27) including, for example, disqualifcation as a witness,(fn28) unfair prejudice,(fn29) by statute(fn30) or as a sanc-tion.(fn31)
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