Abstract
This essay proposes a set of rules to replace entirely the 800 series of the Federal Rules of Evidence, the hearsay rules, with a very different, and relatively compact, set of procedural rules. (The current hearsay rules run over 3000 words; the proposed rules run under 1000.) The change will improve truth-determination, make trials more efficient, and better protect the rights of criminal defendants and other parties. There would, of course, be some adjustment period for lawyers and judges as they get accustomed to a different system, but I am confident that it would soon be easier to administer than the system we have now. The basic perception underlying this proposal is that a core of the hearsay rule should be preserved by a stringent exclusionary rule and that, beyond that core, the law should be far more receptive to hearsay than it is now. That core is the principle that witnesses, particularly those who testify against an accused, must, absent consent, give their testimony subject to an opportunity for cross-examination and under other prescribed conditions. Crawford v. Washington establishes that principle as a matter of constitutional law when the evidence is offered against an accused, but I believe that the principle applies, albeit with lesser force, in other contexts. Hearsay statements that are not testimonial, and indeed other conduct that is offered to prove the truth of a belief assertedly held by the actor, do not pose this problem. In some settings there might be good ground to exclude such evidence, but there is no need for a complex, categorical body of doctrine to govern the area. The introduction to this essay explains why making such a dramatic change is justified and outlines the general ideas underlying the proposal. I then present each proposed rule and detailed comments in conjunction with each one. The aim of this essay is simply to present and explain what I consider to be an ideal replacement for the current body of hearsay law. In drafting the proposal, I have made many subsidiary choices in addition to the most significant ones. Of course, if any jurisdiction does decide to revise its hearsay law along the lines I propose, its ultimate codification may differ in many respects, both large and small, from the one I present here.
Recommended Citation
Richard D. Friedman,
A Proposal to Replace the Hearsay Rules,
57
U. Mich. J. L. Reform
909
(2024).
Available at:
https://repository.law.umich.edu/mjlr/vol57/iss4/12
