Published 2025-05-22
Keywords
- hearsay, rule, alternatives, advisory, solution, rule 807, residual, courts, exception, surveys, statements, witness, testify, rule 803, unavailability
Abstract
The hearsay rule is necessary, but it excludes too much good evidence. This article shows why by first analyzing a simple case in which the rule would hide valuable information from the jury. The Advisory Committee on Evidence Rules recognized what it called “the hearsay problem” but did not solve it. This article then considers Rule 807, the residual exception to the hearsay rule, as a potential solution. Rule 807 is newly formulated in a way that admits more evidence than its predecessor rule. But it is weighed down by judicially created restrictions that should not apply to the new rule. If Rule 807 were applied in a straightforward manner without these restrictions, it could solve the hearsay problem. Comparisons with other hearsay exceptions and analyses of decisions applying Rule 807 show that it would function well to exclude bad evidence while admitting valuable evidence. In conclusion, courts that apply this rule should analyze proposed evidence for both trustworthiness, which should be measured by relative absence of the risks of hearsay, and necessity, which should be considered by comparing the probative value of the evidence to alternatives.
Recommended Citation: David Crump, The Trouble With the Hearsay Rule, 20 U. MASS. L. REV. 2 (2025).