Say what? Confusion in the courts over what is the proper standard of review for hearsay rulings.

• Jurisdiction: United States
• Date: 01 February 2013
• Author: Bruno, Todd J.
• Published date: 01 February 2013
• Author: Bruno, Todd J.

I.INTRODUCTION

"[I]t is not entirely clear whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review." (1) "The circuits are also split (sometimes internally) on essentially the same issue in the context of ... evidentiary rules." (2) In 2012, judges from both the Sixth Circuit and Ninth Circuit Courts of Appeals recognized both intra-circuit confusion and an inter-circuit split on what standard of review should apply to a district court's determination of whether evidence is admissible under the hearsay rules and exceptions. (3) Professor John Wigmore noted in 1904 that the hearsay rule dates back to the 1500's and that it was essentially fully developed by the 1700's. (4) Several hundred years after the creation and development of the hearsay rule, however, the appellate court still struggles with whether the resolution of a hearsay objection is a matter of law, a matter of fact, or something that is completely within the discretion of the trial court.

The discussions on the authority split noted in the Sixth and Ninth Circuit both occurred in 2-1 decisions at the federal appellate level--one on April 19, 2012 and one on November 16, 2012--with the dissenting opinion in each case emphasizing that an abuse of discretion standard should be the proper standard of review for an appellate court in all evidentiary rulings. (5) In recognizing the confusion, the majority opinion in Wagner v. County of Maricopa (6) agreed with the dissent on one key point and highlighted the confusion in the second line of the "Discussion" in its opinion by acknowledging the dissent and agreeing that there is a lack of clarity within the Ninth Circuit. (7) However, the court chose not to resolve the ambiguity and stated that the court's "conclusions would be the same under either standard." (8)

In United States v. Clay (9) the primary issue on petition for rehearing en banc involved judicial review of a bad-acts evidence ruling under Federal Rule of Evidence 404(b). (10) In the dissent, which called for an abuse of discretion for all evidentiary decisions, Judge Raymond M. Kethledge noted his exhaustive research in articulating the split in authority on the same issue of what standard of review to apply in the hearsay context. (11) Judge Kethledge not only mentions competing standards of review from different circuits for hearsay rulings, he also demonstrates to the reader that the Sixth and Ninth Circuit have intra-circuit confusion on the rules by citing cases from within both of those circuits that use either a de novo standard or an abuse of discretion standard to review a hearsay issue. (12)

State appellate courts have also struggled in determining the proper standard to apply when reviewing district court hearsay rulings. Some states, such as Nebraska and Utah, have even created hearsay-specific standards of review "tests" because of the multiple layers of inquiry that go into each hearsay determination. (13) As recently as 2005, other states have even overruled past cases that used abuse of discretion to review hearsay rulings to create a new de novo review standard when reviewing hearsay rulings. (14)

Most notably, in State v. Saucier, (15) the Connecticut Supreme Court performed a state-by-state and circuit-by-circuit survey in 2007 in an attempt to "clarify" the standard of review that appellate courts in Connecticut should use with respect to district court hearsay rulings. (16) In that case, the majority concluded that there is no "categorical" or "bright line" rule approach to determining the standard of review applicable to evidentiary claims on appeal and held that courts should use a different standard depending on the context of the ruling. (17) In Saucier, three of the seven justices were part of a concurring-in-part opinion that was written separately only to disagree with the standard of review discussion in the majority opinion. (18) As noted within the concurring opinion, "[u]ntil the majority's decision in this case, it had been 'axiomatic [in Connecticut] that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference'" and that "[t]his deferential standard is [generally] applicable to evidentiary questions involving hearsay." (19)

Consequently, many federal and state appellate courts end up in one of two positions. Courts are often either confused about what standard of review is proper for hearsay rulings or are reconsidering whether new tests should be created specifically for hearsay rulings, with many jurisdictions abandoning the traditional abuse of discretion review of evidentiary rulings. At the same time, however, many of these opinions are met with opposing viewpoints from other judges sitting on the same panel who are typically urging for a simple abuse of discretion review for hearsay and all other evidentiary rulings. (20)

This article will explore the unique nature of the hearsay rule and its exceptions that have created chaos among the various federal and state jurisdictions. The confusion oftentimes stems from the fact that trial courts have traditionally had broad discretion to make evidentiary decisions based on its understanding of the issues and evidence at trial, as well as its ability Saucier, 926 A.2d at 640-41 (concluding that no rule determines standard of review applicable to evidentiary claims on appeal). to hear and assess witness testimony at the trial level. (21) However, as will be seen in this article, courts are reconsidering this traditional deference in the context of hearsay rulings. In exploring the different levels of review used by federal and state appellate courts, at least six different "tests" are used to review a trial court's hearsay ruling:

Abuse of discretion standard traditionally used for all evidentiary rulings;

De novo review as a general rule with several documented exceptions that require an abuse of discretion or clear error review;

Two-part test that asks appellate courts to (a) review de novo the question of whether a statement is hearsay and (b) review for abuse of discretion regarding whether the statement falls within a hearsay exception;

Two-part test that asks appellate courts to (a) review for clear error the factual findings underpinning a trial court's hearsay ruling and (b) review de novo the court's ultimate determination to admit evidence over a hearsay objection;

Three-part test that asks appellate court to (a) review legal questions for correctness or legal error under a de novo review, (b) review questions of fact for clear error, and (c) review the final ruling on admissibility for abuse of discretion; and

No bright line rule at all, but instructs appellate courts to apply a different standard of review depending on the context of each specific hearsay ruling. (22)

After reading the conflicting opinions on this issue and after learning that federal and state appellate courts have created at least six different standards to review hearsay rulings by the trial court, you might be left thinking "say what?" to express your surprise or astonishment that the courts have not figured this out, even though the hearsay rule has been around for centuries. (23)

The article, in Part II, will explain the various standards of review used by appellate courts and how those have been defined generally. In Part III, the article will explain why trial courts have traditionally been given deference in terms of its decisions on admissibility of evidence. The article will then briefly discuss, in Part IV, the hearsay rule and some of the exceptions that have been the subject of confusion for appellate courts. The article, in Part V, will attempt to explain how the various appellate courts have grappled with the issue of how much deference should be afforded to trial courts' decisions to admit or exclude evidence on hearsay grounds. Finally, in Part VI, the article will argue that this may just be a matter of semantics, and that it is possible that none of the courts are, in fact, in disagreement conceptually. Most importantly, the article suggests that appellate courts might be able to create a simpler, more coherent approach to reviewing hearsay rulings by the district courts.

2. STANDARDS OF REVIEW

   Standards of review are the metaphorical hinges on the door to the realm of appellate review; they determine just how much deference will be allowed through the door when a case is up for review. Understanding the purpose and application behind standards of review is a crucial courtroom skill. Standards of review not only define the...