A Subject Matter Approach to Hearsay Reform

None of the three major reform proposals – the Model Code, the Uniform Rules, or the original Federal Rules – incorporated a systematic distinction between civil and criminal cases. The thesis of this article is that this distinction should be adopted. This article will explore the reasons for excluding hearsay, and conclude that they support different sets of rules in civil and criminal cases. In civil cases, rules excluding hearsay should be curtailed. Hearsay that fits under an established exception should be admitted, and other hearsay, without discretionary screening by the trial judge, should be admitted on proper notice. In criminal cases, however, the conventional reasons for excluding hearsay apply more strongly, and the hearsay rules serve the additional function of shielding the accused against misuse of governmental power. The principal features of the present rules should be retained, and rulemakers should consider codifying incremental changes that tailor the rules so that they deal more particularly with issues that arise in criminal cases.