Birdsong's Law Blog

 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