Document Type

Article

Publication Date

1992

Abstract

In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most often-contrary to standard doctrine-the hearsay also is more probative than prejudicial. When this is so, the court ordinarily ought to impose the burden of producing the declarant on the opponent, the party objecting to the hearsay. Sometimes, though, other considerations-such as whether the proponent has a substantial advantage in satisfying all or part of the burden of producing the declarant, or whether the proponent has given late notice of his intention to offer the hearsay-may warrant imposing part or all of the burden on the proponent.


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