Document Type

Article

Publication Date

2014

Abstract

For the first three quarters of the twentieth century, the Wigmore treatise was the dominant force in organizing, setting out, and explaining the American law of evidence. Since then, the first two of those roles have been taken over in large part by the Federal Rules of Evidence (Rules). And the third has been performed most notably by the Weinstein treatise. Judge Jack Weinstein was present at the creation of the Rules and before. Though he first made his name in Civil Procedure, while still a young man he joined two of the stalwarts of evidence law, Edmund Morgan and John Maguire, to become the junior— that is, the laboring—author on the oldest textbook in the field. He was a natural selection to be a member of the Advisory Committee that drafted the Rules. The Rules were finally enacted in 1975, and though handling a full docket on the bench and teaching a full load at Columbia Law School, he was ready: He published his monumental treatise with Margaret Berger the same year. In this Article, I will take another look, more than half a century later, at Judge Weinstein’s most important early contribution to the law of hearsay. In an article published in 1961, Probative Force of Hearsay, he argued for a more discretionary approach to hearsay, functionally oriented and procedurally sensitive. In early drafts, the Advisory Committee appeared willing to give the trial judge broad discretion over the admissibility of hearsay, much as Judge Weinstein had advocated. But public commentary and congressional resistance resulted in rules that took a more cautious approach: a definition of hearsay followed by a list of exemptions. It was a long list, to be sure, and one that included a matched pair of open-ended residual exceptions. But this approach maintained the essential structure of traditional hearsay law and ensured that much of the work in applying that law would consist of determining the bounds of the enumerated exemptions.


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