Volume 17

The Residual Exception’s Renaissance

by Gary Dunn

Eminent jurist and legal scholar Richard Posner, formerly of the Seventh Circuit, has recently ignited a controversy regarding the Federal Rules of Evidence (“FRE”) hearsay exceptions. Through his concurrence in United States v. Boyce, Judge Posner characterized the existing hearsay exception paradigm as mere “folk psychology.” Further, Judge Posner called for the abolition of the modern categorical method and, instead, favored a “residual reliability” approach pursuant to FRE 807. Under this approach, each statement’s admissibility would hinge upon the statement’s unique demonstrated reliability to the presiding trial judge. Prior to the FRE’s enactment, the Advisory Committee contemplated the preferability of solely utilizing a residual approach. Judge Posner’s concurrence is a modern renaissance of this debate. However, the legal scholarly consensus remains against the Posnerian model. Perhaps most tellingly, as recently as October 21, 2016, the Advisory Committee rejected Judge Posner’s proposal while describing it as an “all-out discretion fest.” Since, Judge Posner has dialed back on abolishing the hearsay rule. Crucially, however, Judge Posner still adamantly maintains that the most prominent exceptions of the traditional approach should be eliminated.

This note examines and expands upon Judge Posner’s proposal through analyzing the interplay of law, psychology, and policy. Most fundamentally, this note underscores what Judge Posner’s critics fail to adequately address. This note uniquely reveals the “truth behind the hearsay curtain” which is that trial judges already frequently employ a masked residual model while hiding behind the exception labels. This note also elucidates a myriad of psychological evidence underlying the archaic nature of several prominent exceptions criticized by Posner including: present sense impressions, excited utterances, and dying declarations. Furthermore, this note expands the Posnerian approach to the then-existing mental, emotional or physical condition statements, and statements made for medical diagnosis or treatment. Additionally, this note examines the chief criticism of the residual approach which alleges that trial judges would receive unfettered discretion thereby posing severe judicial uncertainty. After analogizing the judicial discretion allowed under FRE 403 for measuring prejudicial value and under FRE 404(b) for assessing character evidence, coupled with the Posnerian model’s covert frequent usage, this note submits that the residual approach surpasses this criticism. Thus, this note ultimately concludes that an expanded Posnerian model provides an optimal direction for the FRE with the caveat that a select few modern exceptions should remain based upon their practical value and internal safeguards of reliability: business records, public records, and declarations against interest.

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