Posner questions basis for ‘archaic’ hearsay rule, proposes flexible approach

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Judge Richard Posner is proposing a rewrite of the hearsay rule and its exceptions in a concurring opinion in a gun case decided by the Chicago-based 7th U.S. Circuit Court of Appeals.

Posner derides the approach taken by the Federal Rules of Evidence (PDF) in his Feb. 13 concurring opinion (PDF). “The ‘hearsay rule’ is too complex,” Posner wrote, “as well as being archaic.” How Appealing and EvidenceProf Blog note Posner’s comments.

Posner instead suggests a flexible approach based on the catchall Rule 807, which allows the admission of some hearsay in the interests of justice even if it is not covered by a specific exception.

Posner wrote in a case in which two exceptions to the hearsay rule were at issue: the “excited utterance” and the “present sense impression.” A trial judge allowed statements from a woman’s 911 call using both justifications; the 7th Circuit decision by Judge Ann Claire Williams said the statements were admissible as an excited utterance made under the stress of a domestic battery. Williams did not reach the issue of whether the statements were admissible because they amounted to a “present sense impression” by the woman.

In the 911 call, a woman said the defendant, Darnell Boyce, had hit her and he was “going crazy for no reason.” Asked if Boyce had a weapon, the woman replied yes. When asked what kind of weapon, the woman said it was a gun. The woman said she had just run upstairs to her neighbor’s apartment and didn’t know if the man was still in her apartment. Police responding to the call spotted Boyce outside the woman’s apartment and saw him toss a gun over a garage into a yard. Police recovered a .357 Magnum in the area.

The 911 caller, who had children fathered by Boyce, did not testify at trial. The 911 statements were admitted and Boyce was convicted of being a felon in possession of a firearm.

Posner notes that the 911 call was hearsay because it was an out-of-court statement offered to prove the truth of the matter asserted—namely, that Boyce had a gun. The 911 statements were no doubt both an excited utterance and a present sense impression, Posner said, “but there is profound doubt whether either should be an exception to the rule against admission of hearsay evidence.”

The rationale behind the “present sense impression” exception is that the immediacy reduces the likelihood of deliberate or conscious misrepresentation. Not true, Posner said, citing studies that say less than one second is needed to fabricate a lie. He offered an example of how it is easy to lie with little chance for deliberation:

“Suppose I run into an acquaintance on the street,” Posner wrote, “and he has a new dog with him—a little yappy thing—and he asks me, ‘Isn’t he beautiful’? I answer yes, though I’m a cat person and consider his dog hideous.”

Posner also questioned the justification for the excited utterance exception, based on the assumption that excitement can produce utterances free of conscious fabrication. How can there be any confidence that a statement made under psychological stress is reliable? Posner asked.

“Like the exception for present sense impressions,” Posner writes, “the exception for excited utterances rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.”

Posner says he does not have a goal of reducing the amount of hearsay evidence in federal trials. Rather, he is proposing an alternative that would “swallow” the exceptions in Rules 801 through 806 in the Federal Rules of Evidence.

Posner says he would use a simplified version of Rule 807, the “residual exception,” and allow hearsay in these circumstances: “when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome.”

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