Goldilocks and the Rule 803 Hearsay Exceptions

Criticism of the hearsay exceptions embodied in the Federal Rules of Evidence has reached a fever pitch in recent years. With scholars calling for the abrogation of the entire hearsay regime or of individual exceptions within it and the Advisory Committee on Evidence Rules exploring hearsay amendments, the time for genuine hearsay soul-searching may be at hand. This Article suggests that aggressive proposals to scuttle existing doctrine entirely in favor of alternative approaches to hearsay are overly broad, rejecting the benefits of significant portions of existing doctrine that are functioning well and threatening costly consequences that could make matters worse for hearsay. On the opposite end of the spectrum, narrow proposals to amend individual hearsay exceptions one at a time accomplish too little and may undermine the utility of long-standing and rational hearsay exceptions that permit the flow of helpful information into the trial process. As an alternative to these proposals at opposite ends of the spectrum, this Article reveals a ready hearsay reform right under our noses that hits that sweet spot in between a sweeping, aggressive reform and an unduly narrow, limited fix. The Article suggests borrowing the trustworthiness exception that is a current feature of the business and public records exceptions and extending its application to additional hearsay exceptions in Federal Rule of Evidence 803. This change would make hearsay statements falling within the existing requirements of the Rule 803 exceptions presumptively admissible, but would afford the opponent of those hearsay statements the opportunity to show that the particular circumstances surrounding the statements render them untrustworthy and inadmissible. Fleshing out this concept first advanced in my previous work, this Article explains why an expanded trustworthiness exception could be the silver bullet that takes an important step toward rationalizing hearsay doctrine.