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

• Author: Bruno, Todd J.
• Position: IV. The Hearsay Rule and the Multiple Layers of Analysis B. Six Different Standards and Tests in Various Jurisdictions through V. Recommendations, p. 26-54

2. Six Different Standards and Tests in Various Jurisdictions

When reviewing the federal and state courts to figure out what standard is used by appellate courts to review hearsay rulings made by trial courts, confusion is the norm. As noted earlier, often the appellate courts in the circuit or at the state level will disagree with earlier holdings and have trouble determining the standard of review for their own jurisdictions. (175) In addition, many jurisdictions self-identify as having one standard of review but will break from that particular standard when it is convenient for a particular case. (176) Consequently, accurately identifying all of the various standards is challenging, even when judges and their clerks attempt to take a survey of the federal and state courts. (177) At least six different standards of review are used by various courts when analyzing trial court rulings on hearsay: (1) traditional abuse of discretion used for all evidentiary rulings; (2) de novo review as general rule, but breaking from that rule for review of fact and credibility determinations; (3) two-part test where court first reviews whether statement fits definition of hearsay de novo and second reviews for abuse of discretion whether statement falls within hearsay exception; (4) two-part test where court reviews first for clear error the factual findings underpinning a trial court's hearsay ruling and second reviews de novo the ultimate determination to admit the evidence; (5) three-part test that uses a mix of de novo, clear error, and abuse of discretion; and (6) no bright line rule at all that uses a standard of review depending on the issues raised by the particular hearsay objection. (178)

1. Abuse of Discretion

   As detailed in Part III, trial courts are traditionally afforded great deference in all evidentiary rulings primarily because the trial court is in the best position to hear and assess the witnesses' testimony in the context of the entire trial, and the trial judge has customarily been given leeway to manage his or her courtroom and put forth decisions that have finality. (179) Most jurisdictions use the abuse of discretion standard of review for hearsay rulings as well. (180) In explaining the rationale behind this level of deference, the Tenth Circuit explained that, "Given the fact- and casespecific nature of hearsay determinations, 'our review of those decisions is especially deferential.'" (181)

   In spite of the fact that courts using this standard emphasize the "fact- and case-specific" determinations, a few of the appellate courts ordinarily reviewing admission of hearsay evidence for abuse of discretion find that there may be some questions of law within the hearsay rule, which permits the court to review those questions de novo. For example, the Supreme Court of Kansas explained that anything involving statutory interpretation would require a de novo review. (182) In addition, because evidentiary rulings are within the sound discretion of the trial court and the traditional definition as "[a]n abuse of discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court," the Illinois Supreme Court also describes an exception to this general rule of deference. (183) The court explains that evidentiary rulings will be reviewed de novo when "a trial court's exercise of discretion has been frustrated by an erroneous rule of law." (184)

   Some jurisdictions define abuse of discretion as having a multilayered approach that analyzes fact and law issues separately and with different standards of review. For example, the Missouri Supreme Court explained:

   A trial court can abuse its discretion through the inaccurate resolution of factual issues or through the application of incorrect legal principles. Where the facts are at issue, appellate courts extend substantial deference to trial court decisions. However, when the issue is primarily legal, no deference is warranted and appellate courts engage in de novo review. (185) The Second Circuit appears to do the best job of explaining the complicated and confusing interplay between the abuse of discretion and de novo standards of review:

   [A] district court necessarily "abuses its discretion" if it makes an error of law. In this way, review for "abuse of discretion" and de novo review are not entirely distinct concepts, but rather, review for abuse of discretion incorporates, among other things, de novo review of district court rulings of law. (186) Therefore, the abuse of discretion standard of review spans the spectrum of deference. At one extreme, it is a standard so deferential that it has been described as a "virtual shield" or "rubber stamp" of trial court rulings; but at the other end of the spectrum, when it is defined to necessarily include de novo review of legal conclusions, it is a standard that owes no deference to a trial court ruling. (187) As explored in detail in the next five subsections, despite this potential definition or rule of abuse of discretion as one that sweeps sufficiently far to encompass de novo review of legal rulings, many jurisdictions create special standards of review for hearsay determinations that further emphasize the many layers of inquiry in a typical hearsay ruling. (188)

2. De Novo Review

   Several state jurisdictions call for a de novo review of hearsay rulings as its self-defined standard of review. (189) These jurisdictions emphasize that hearsay determinations primarily involve statutory interpretation. (190) They further explain that a trial court does not have discretion to interpret the rules of hearsay. (191) The Supreme Court in Connecticut, which claims to reject a de novo standard of review, describes the rationale for using a de novo review for hearsay rulings as one that reviews the legal questions with plenary review to ensure the trial court's discretion of hearsay and hearsay exceptions was soundly determined. (192)

   Of the jurisdictions that adopt the de novo standard of review, most recognize exceptions to that level of deference and apply a clear error or abuse of discretion review when the trial court engages in fact-finding or credibility determinations required for ruling. For example, appellate courts that generally use de novo review for hearsay will defer to the trial court's rulings on many different matters. (193) These matters include whether an excited utterance has been made, whether a conspiracy existed, whether a statement was offered for something other than the truth of the matter asserted, and whether "trustworthiness" determinations were found in several hearsay exceptions. (194)

   1. De Novo Review with No Exception - Maryland

      Courts in Maryland ordinarily review evidence rulings with an abuse of discretion standard. (195) However, in 2005 the Maryland Court of Appeals held that review of "admissibility of evidence which is hearsay is different." (196) The court stated that the de novo standard of review applies to both questions traditionally faced by a trial court when ruling on hearsay objections: (1) whether the statement is hearsay and (2) whether an exception to hearsay applies. (197)

      By reversing a trial court's decision to admit a document and its contents into evidence over a hearsay objection that had been upheld by the intermediate court of appeals, the Maryland Court of Special Appeals broke from the traditional standard of review used to review all evidentiary rulings in the state. (198) This abuse of discretion standard was stated clearly by the intermediate court in Bernadyn v. State (199) in its explanation of what the court thought was the standard of review at the time. (200) The intermediate court cited three earlier cases from the Maryland Court of Appeals that articulated the abuse of discretion standard, which had used language as powerful as "plainly inadmissible," "may not be disturbed on appeal," and "great deference." (201)

      With the de novo standard in place, the court first examined whether a particular piece of evidence, a medical bill discovered at the crime scene, was hearsay. (202) The court held that this document constituted hearsay because it was introduced to prove the truth of the matter asserted; specifically, that defendant resided at the address on the bill. (203) After determining that the document was hearsay, the court turned to whether the document was admissible under the business records exception. (204)

      In giving no deference to the trial court's ruling on either of these questions, the court abandoned the traditional abuse of discretion standard for reviewing the admissibility of evidence over hearsay objections and separated its court system from the many courts that use a two-step review of hearsay rulings. (205) As discussed in Part V.B.3, although some courts consider the first question of whether a statement is hearsay to be a legal issue, these courts recognize that many fact-specific and credibility questions may arise when deciding whether an exception applies. (206) For example, the business records exception at issue in Bernadyn raises many questions that might reasonably be considered fact-specific and that might depend on the credibility of a witness. As the court correctly noted, to meet this exception, the State would have been required to show that the document was:

      made at or near the time of any event; that it was made by a person with knowledge, or from information transmitted by a person with knowledge; that the bill was made and kept in the course of regularly conducted business activity; or that it was the regular practice of [the business] to make and keep that record. (207) At trial, the State did not even call a witness to testify to any of these matters because the trial court held that the bill was not hearsay, so there was no need to decide whether an exception applied. (208)

      However, the questions...