GOLDILOCKS AND THE RULE 803 HEARSAY EXCEPTIONS.

• Author: Richter, Liesa L.

TABLE OF CONTENTS INTRODUCTION 900 I. THE FEDERAL HEARSAY REGIME AND ITS HATERS 904 A. Contemporary Calls for Change 906 B. Fatal Flaws in Recent Reform Proposals 910 II. JUST RIGHT: ALL WE NEED IS TRUSTWORTHINESS 917 A. The History of the Trustworthiness Exception 919 B. The Operation of the Trustworthiness Exception 921 C. Trustworthiness Expansion: A Superior Alternative 930 1. Rule 803: The Weak Link in the Chain 930 2. A Silver Bullet 938 3. Reliability Matters 947 4. Systemic Symmetry 953 5. Certainty and Predictability Retained 956 6. Do Not Upset the Whole Apple Cart 961 III. RATIONALIZING RULE 803: DRAFTING ALTERNATIVES 962 A. The Blanket 963 B. The Exception-Specific Alternative 966 CONCLUSION 968 INTRODUCTION

The hearsay regime embodied in the Federal Rules of Evidence has long been a favorite target for criticism. Scholars, judges, and lawyers alike have lamented the complexity, inefficiency, and irrationality of the hearsay prohibition and its multifarious exceptions. Although criticizing the existing hearsay regime is as easy as shooting fish in a barrel, finding a cure for what ails hearsay doctrine has proved a much harder task. Although complaints about the inadequacy of hearsay doctrine have continued unabated, there has been no significant overhaul of the hearsay regime since the enactment of the Federal Rules of Evidence in 1975.

Two recent trends have placed hearsay reform back in the limelight. First, the rapid evolution of communication norms that has generated an avalanche of electronic hearsay, or e-hearsay, has led to a reexamination of hearsay doctrine. (1) Coinciding with the rise of e-hearsay is a modern emphasis on data-driven, empirically supported legal constructs that has pulled hearsay doctrine back into the spotlight, or the crosshairs as it were. (2) In light of these trends, scholars have advanced many intriguing proposals for reform. Some have suggested a complete overhaul of hearsay doctrine that would scrap the long-standing and arcane hearsay regime in search of a brave new hearsay world. (3) On the opposite end of the spectrum, others have advanced narrow proposals to modify, abolish, or create specific hearsay exceptions only within the existing, complex hearsay structure. (4)

In the wake of recent vocal and high-profile criticism of hearsay, (5) real hearsay reform is finally under consideration. Defying critics' constant refrain that genuine hearsay reform is unlikely due to incuriosity and a reluctance to reconsider ancient dogma, (6) the Advisory Committee for the Federal Rules of Evidence has signaled serious interest in making significant modifications to the hearsay model contained in Article Eight of the Rules, proposing and obtaining amendments to hearsay provisions in 2010, 2014, and 2015. (7) Further, the Advisory Committee is considering more widespread and significant modifications to hearsay doctrine. Among other proposals, the Committee has raised the possibility of expanding the hearsay exception for prior inconsistent statements of testifying witnesses (8) and has considered expanding the residual or catchall exception to allow for more liberal admission of hearsay outside the standard categorical exceptions. (9) The Committee has even examined the possibility of returning to a drafting alternative that the original drafters of the Rules left on the cutting room floor: using the categorical hearsay exceptions merely as illustrations or guidelines that trial judges may follow--or not--in their significant discretion. (10) In short, an era of genuine hearsay reform may finally be at hand.

If, at long last, significant alterations are to be made to the time-honored and byzantine hearsay rules, it is critical that we avoid a false step that would condemn hearsay doctrine to a future of continued dysfunction and criticism. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well, and threatening costly consequences that could make matters worse for hearsay. On the opposite end of the spectrum, narrow proposals to amend individual hearsay exceptions one at a time accomplish too little and may undermine the utility of longstanding and rational hearsay exceptions that permit the flow of helpful information into the trial process.

As an alternative to these proposals at opposite ends of the spectrum, this Article reveals a ready hearsay reform right under our noses that hits that sweet spot in between a sweeping, aggressive reform and an unduly narrow, limited fix. The Article suggests borrowing the trustworthiness exception that is a current feature of the business and public records exceptions and extending its application to other hearsay exceptions in Rule 803. This change would make hearsay statements falling within the existing requirements of the Rule 803 exceptions presumptively admissible, but would afford the opponent of those hearsay statements the opportunity to show that the particular circumstances surrounding the statements render them untrustworthy and inadmissible. After fleshing out this concept first advanced in my previous work, (11) this Article explains why expanding the trustworthiness exception would represent an important step toward rationalizing hearsay doctrine.

Notwithstanding the numerous and varied attacks on existing hearsay doctrine, all roads lead back to the Rule 803 exceptions. Hysteria over the present sense impression and excited utterance exceptions, in particular, has formed a launching pad for some reform proposals, as well as a landing place for others. (12) Expanding the trustworthiness exception that already exists in the Rule 803 hearsay exceptions for business and public records efficiently launches a single silver bullet at numerous purported reliability deficiencies in the remaining Rule 803 hearsay exceptions. (13) Importantly, it would do so without altering the presumptive admissibility of hearsay falling within the well-understood Rule 803 categories and without sacrificing critical certainty and predictability in the litigation process. (14) Finally, expanding the trustworthiness exception would bring much-needed systemic symmetry to the Article Eight hearsay regime, providing an escape valve to exclude unreliable hearsay that satisfies preordained hearsay exceptions to match the residual exception in Rule 807 that allows the admission of trustworthy hearsay not captured by those same exceptions. (15) Accomplishing all of this with a known and understood feature of the business and public records exceptions would not wreak the havoc on our hearsay model that paradigm-shifting reforms are sure to bring. (16)

Part I of this Article will briefly describe common criticisms of the hearsay regime found in the Federal Rules of Evidence, as well as recent proposals for reform. Part I will also identify significant flaws in existing proposals for hearsay reform. In Part II, the Article will explain the operation of the trustworthiness exception currently part of the business and public records exceptions. Part II will demonstrate that expanding this trustworthiness exception to additional Rule 803 hearsay exceptions is in keeping with the values underlying the hearsay rule and is superior to the alternatives for rationalizing hearsay doctrine. Part III will explore the mechanics of expanding the trustworthiness exception and will propose potential amendments to Federal Rule of Evidence 803. The Article will then briefly conclude.

1. THE FEDERAL HEARSAY REGIME AND ITS HATERS

   Hearsay is defined by Federal Rule of Evidence 801 as "a statement that: (1) the declarant does not make while testifying at the current trial or hearing" that "(2) a party offers in evidence to prove the truth of the matter asserted in the statement." (17) The hearsay regime embodied in the Rules imposes a broad ban on the admission of hearsay evidence, (18) only to turn around and articulate thirty-seven circumstances in which hearsay statements may indeed be admitted for their truth. (19) The hearsay exceptions within Article Eight of the Rules follow a "categorical" approach, admitting statements that meet certain defined requirements and that fit into preordained categories. (20)

   Hearsay exceptions covering statements made by testifying witnesses satisfy core hearsay concerns by requiring an opportunity for declarant cross-examination, (21) while the exceptions for statements of party-opponents are based upon notions of adversarial fairness. (22) The hearsay exceptions in Rule 803 predominantly rest upon the assumption that human statements made in certain defined contexts enjoy inherent reliability, (23) while the Rule 804 exceptions rest on both the reliability of certain hearsay statements and the necessity of resorting to those hearsay statements in the case of a declarant unavailable to testify at trial. (24) Finally, Rule 807 rounds out the list with a discretionary catchall exception available in cases of trustworthy and necessary hearsay not covered by the other categorical exceptions. (25)

   The mixed messages of the hearsay prohibition and its many exceptions, as well as the patchwork quilt of particular hearsay statements allowable in evidence, have been attacked from all quarters since the adoption of the Rules in 1975. Critiques of contemporary hearsay doctrine and proposals for reform have been almost too numerous to tally over the past forty-plus years. (26) Although the long-standing dissatisfaction with the treatment of hearsay by the Rules is well documented, there appears to be a recently renewed enthusiasm for revisiting the fundamentals of the hearsay regime. Recent critiques and proposals for change have been driven partly by the advent of ubiquitous technology and the metamorphosis in methods of human communication. (27)...