Birdsong's Law Blog

This Birdsong article was originally published in the Nova Law Review, Volume 26, Number 1.

It teaches Evidence law students about the residual exception to the Federal Rules of Evidence.

Read and learn.

 EXCEPTION TO THE HEARSAY RULE – HAS IT BEEN ABUSED – A SURVEY SINCE THE 1997 AMENDMENT

                                                          By: Leonard Birdsong

                                                                        © 2001

               I. INTRODUCTION

         In our legal system of trial by jury a good deal of the law of evidence is given to exploring hearsay and its exceptions. The factors upon which the value of testimony depends are the perception, memory, narration and sincerity of the witness.¹ In order to encourage witnesses to put forth their best efforts and to expose inaccuracies that might be present with respect to any of these factors our trial system has developed what is known as the testimonial ideal.  That is, witnesses are required to testify under oath, testify in person, and be subject to cross examination.  The rule against hearsay is designed to insure compliance with these ideals.  When one of them is absent a hearsay objection becomes pertinent.² Hearsay evidence is often characterized as unreliable and untrustworthy.  Nevertheless courts constantly admit hearsay evidence under the numerous exceptions found in the common law and in latter day statutes. Hearsay evidence exhibits a wide range of reliability. The effort to adjust the rules of admissibility of hearsay evidence to variations in reliability has been a major motivating factor in the movement to liberalize evidence law.³

            The Federal Rules of Evidence, adopted in 1975,⁴ for use in the federal courts and adopted by many states have helped liberalize the introduction of trustworthy hearsay evidence at trials.⁵  The Federal Rules of Evidence recognize twenty eight standard exceptions to the hearsay rule⁶.  In addition to those exceptions and the “nonhearsay” exceptions⁷, the Congress in promulgating the Federal Rules, adopted rules 803(24) and 804(b)(5), as

Birdsong wrote the following article for students of Evidence law as well as anyone interested in learning how a common law concept get codified into the Federal Rules of Evidence.

Read and learn.

             THE EXCLUSION OF HEARSAY THROUGH

 FORFEITURE BY WRONGDOING – OLD WINE IN A NEW BOTTLE – SOLVING THE MYSTERY OF THE CODIFICATION OF THE CONCEPT INTO FEDERAL RULE 804(B)(6)

                                                            By: Leonard Birdsong

                                                                        © 2001

      I. INTRODUCTION

                The development of modern rules of evidence has been a process of putting old wine into new bottles. That is, many of the old common law rules and notions of evidence have been codified into modern day state and  federal evidence codes. This article examines one such recent codification of a common law concept, forfeiture by wrongdoing, into the Federal Rules of Evidence and seeks to determine whether such codification was really necessary.

             The Federal Rules of Evidence, used in federal courts and adopted by many states, Puerto Rico, and the military are a codification of years of evidence rules.¹ The rules concerning hearsay have been codified in the Federal Rules of Evidence at Article VIII.  The  Rules recognize twenty eight standard exceptions to the hearsay rule.  In addition, a number of “nonhearsay” exceptions are also recognized.  Furthermore, Congress adopted rules 803(24) and 804(b)(5), as residual hearsay exceptions.  These two rules allow introduction of hearsay statements not specifically covered by any of the named exceptions but having circumstantial guarantees of trustworthiness if the court determines that certain stated conditions are met.

                In 1997, Congress amended the hearsay rules in two significant ways.  First, the residual hearsay rules of  Rule 803(24) and  Rule 804(b)(5), were combined into one new Rule 807.   Then, in 1997 Congress  added a new provision, Rule 804(b)(6), which excluded forfeiture by wrongdoing from hearsay.

            The new Rule 804(b)(6) provides:

                        (b) Hearsay Exceptions.  The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

                                    *      ****          *

(6) Forfeiture by Wrongdoing.  A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

            The promulgation of this new rule was another case of putting old wine into a new bottle. In common terms, the rule established the proposition that a defendant may not benefit from his or her wrongful prevention of future testimony from a witness or potential witness.  According to its drafters 804(b)(6) was intended as a prophylactic rule to deal with abhorrent behavior which strikes at the heart of the system of justice itself. That is, the  killing of witnesses or other wrongdoing that might prevent a witness from testifying at trial.   

 Birdsong commends the following article to his Evidence Law students who seek a better understanding of hearsay law and confrontation…and possibley a better grade in the course! Although written some time ago, it is still very relevant and has been read and cited widely.  Birdsong notes with pride specifically that this article was cited by both the Illinois Supreme Court in People v. Stechy, April 19, 2007, and by the Illinois Appellate Court in People v. Melchor, June 28, 2005.

               THE EXCLUSION OF HEARSAY THROUGH FORFEITURE BY WRONGDOING – OLD WINE IN A NEW BOTTLE – SOLVING THE MYSTERY OF THE CODIFICATION OF THE CONCEPT INTO FEDERAL RULE 804(B)(6)

                                                           By: Leonard Birdsong

                                                                        © 2001

                       I. INTRODUCTION 

                The development of modern rules of evidence has been a process of putting old wine into new bottles. That is, many of the old common law rules and notions of evidence have been codified into modern day state and  federal evidence codes. This article examines one such recent codification of a common law concept, forfeiture by wrongdoing, into the Federal Rules of Evidence and seeks to determine whether such codification was really necessary.

             The Federal Rules of Evidence, used in federal courts and adopted by many states, Puerto Rico, and the military are a codification of years of evidence rules.¹ The rules concerning hearsay have been codified in the