Abolishing the Hearsay Rule

DECLARANTS As a paradigm Abstract Declarant, consider the unidentified person in Miller v. Keating7 who spoke at the scene of a traffic accident. The plaintiff's car had been hit from the rear by the defendant's truck. In the litigation arising from the accident, the defendant claimed that the first time he saw the plaintiffs car, it was already in his lane and too close to avoid the collision. The dispute thus focused on whether the plaintiff had caused the accident by crossing suddenly into the defendant's lane, or whether her car was in fact in plain view before the truck hit it. The defendant offered to prove that an unidentified person, the Abstract Declarant, ran toward the accident scene and said to another bystander, "[T]he bastard tried to cut in."8 The court in Miller v. Keating held that this statement must be excluded because it failed to conform to any hearsay exception.9 The bystander could not identify the man who made it, other than that he was a "white male." Further, the bystander knew nothing about any specific circumstances affecting the man's perception of the accident or his sincerity in making the statement.1o The bystander could not testify liberalization will make it easier to establish a prima facie case; (4) a distrust of judicial discretion as the basis for admitting or excluding hearsay (not a problem under an abolitionist regime); and (5) an inevitable systemic trend away from trials based on firsthand testimonial accounts, which the authors believe will "decrease the appearance of fairness ... [and] lead to substantial injustice as well." Id. at 524. Here, the authors do betray distrust of the jury as a basis for their position against liberalization. Id. at 522 n.43, and 524. 7. 754 F.2d 507 (3d Cir. 1985). 8. Id. at 509. 9. The court held that the hearsay statement failed to satisfy the hearsay exception for excited utterances under Federal Rule of Evidence 803(2) on two grounds: failure to show that the declarant "was in a position to have seen what happened" and failure to show that he "was excited when he spoke." Id. at 512. 10. Id. at 509. The bystander who testified about the statement was the driver of a car stopped in the next lane and struck on the side by plaintiff's car after the initial collision. Both the bystander and his wife testified at trial that the defendant's truck had already come to a full stop before plaintiff's car pulled in front of it, a description of the facts seemingly inconsistent with both parties' versions. Id. The wife corroborated her husband's testimony about the Abstract Declarant's statement. There is no indication in the Miller opinion that these witnesses had any special interest in attributing fault to the plaintiff as opposed to the defendant. This content downloaded from 157.55.39.148 on Sun, 12 Jun 2016 05:25:31 UTC All use subject to http://about.jstor.org/terms 1987] ABOLISHING THE HEARSAY RULE 499 that the statement of the Abstract Declarant was immediately contemporaneous with the accident, or was made in an excited or stressed manner. Many other cases offer variations of this paradigm. In the famous case of Johnson v. Lutz," the unknown declarants at the scene of the accident made statements about it to a policeman when he arrived. In Cook v. Hoppin,12 the unknown declarant stated in the hospital emergency room that the injured plaintiff had been involved "in a shoving or wrestling match" just prior to falling off the stairs of defendant's building. The crucial point about an Abstract Declarant is that the trier of fact receives very little information related to the declarant's four testimonial qualities of perception, memory, sincerity and language use. The trier of fact thus has little factual basis upon which to apply its own general knowledge and experience about what kinds of observers are reliable in making those inferences that are necessary to evaluate the reliability of the particular declarant's statements.13 The more information the trier of fact has about a declarant, the more the trier can draw on its own general knowledge to make inferences about reliability. Specific information about the circumstances affecting the declarant's testimonial qualities will be particularly useful. If the hearsay rule were abolished, however, the admission of statements of Abstract Declarants would be subjected only to the test of relevance and the test of discretionary exclusion under a rule such as Federal Rule of Evidence 403. These two tests might not require the proponent of the Abstract Declarant to prove any additional specific facts about the declarant in order to secure admission of a statement. Relevance is a minimal test of logical connection between an item of evidence and a disputed fact. It is satisfied if there is a possible relationship, supported by general knowledge and experience, between a statement and a conclusion about the disputed facts.14 For example, in Miller 11. 253 N.Y. 124, 170 N.E. 517 (1930). 12. 783 F.2d 684 (7th Cir. 1986). 13. Morgan identified the problem of hearsay as risk of error in the declarant's four testimonial qualities (use of language, sincerity, memory, and perception). E. MORGAN, supra note 1, at 243-44. The risk of error, in Weinstein's view, must be assessed circumstantially in order to determine the probative value of hearsay. Weinstein, Probative Force, supra note 3, at 333. Thus, inferences about the declarant's four testimonial qualities form an important part of the trier's evaluation of hearsay: how accurately did the declarant perceive a disputed event? how accurately did she remember it? was she sincere when making her statement about it? how accurately did she use language in making that statement? 14. Federal Rule of Evidence 401 provides that relevant evidence means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Relevance tests the relationship between the item of evidence and the fact it is offered to prove by examining the generalizations underlying each inference. The Notes of the Advisory Committee to the Federal Rules describe these generalizations as "principles evolved by experience or science, applied logically to the situation at hand." FED. R. EVID. 401 advisory committee's note (citing This content downloaded from 157.55.39.148 on Sun, 12 Jun 2016 05:25:31 UTC All use subject to http://about.jstor.org/terms 500 CALIFORNIA LAW REVIEW [Vol. 75:495 v. Keating, the out-of-court statement of the paradigm Abstract Declarant is relevant if it possibly concerns the plaintiffs driving prior to the specific accident in question, and possibly is based on first-hand perception. General knowledge and experience supports the inference that the Abstract Declarant is talking about the plaintiff's driving. He was near the scene of the accident and the contents of his statement match whatDeclarant is talking about the plaintiff's driving. He was near the scene of the accident and the contents of his statement match what the truck driver says occurred.15 Moreover, a generalization from experience, that people at the scene of an accident who speak about what caused it possibly have perceived it, also raises the inference that the Abstract Declarant is speaking from first-hand perception.16 The court in the Miller case, however, applied a higher threshold of proof to the showing of first-hand perception."7 The court required more specific facts about the Abstract Declarant in order to raise the likelihood that he had actually perceived the accident. But if the Abstract Declarant had said "I saw how that bastard tried to cut in," the court would have been