HIDDEN RULESAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 75, No. 5 (MAY 1989), pp. 92, 94Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760498 .Accessed: 15/06/2014 15:38

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Litigation

HIDDEN RULES ABAJ/JOHN RGLER

BY JAMES W. McELHANEY

Francis Logan was in Judge Wal lop's court, arguing that something the defendant had authorized was an admission, when the judge asked, "Where is that in the rules, counsel?"

Logan is not in court every day, but he has been trying cases for a long time, so when he couldn't find the exact rule immediately, he was not upset. "If I can have a moment, your honor," he said.

But after a few minutes, Logan started to worry. Not only was he un able to locate authorized statements, he couldn't even find admissions. The third time through the hearsay ex ceptions, Rules 803 and 804, he began to panic. He was seriously thinking that the drafters of the rules of evi dence had left out admissions alto gether, when he stumbled on Rule 801.

Later on, in the Brief Bag, just

James W. McElhaney, the Jo seph C. Hostetler Professor of Trial Practice and Advocacy at Case Western Reserve University School of Law, is a senior editor and col umnist for Litigation, the journal of the ABA Section of Litigation.

around the corner from Judge Wal lop's court, Logan told Angus about his brush with humiliation.

"It doesn't make any sense, An

gus. Here it is, the most important ex ception to the hearsay rule, and instead of being with the other ex ceptions, it is stuck off with the def initions in Rule 801. What in the

world is it doing there?" "Hiding," said Angus. "Hey, I'm serious," said Francis,

giving Angus a dark look. "So am I," said Angus. "When

New York considered an evidence code based on the Federal Rules, it took admissions out of Rule 801 and put them with the other hearsay ex

ceptions precisely because a lot of lawyers thought they were in the

wrong place. "And that's not all," Angus said.

"The Federal Rules of Evidence are loaded with hidden rules. They're like one of those cartoons where you're supposed to find the 25 missing mon

keys?only it's not much fun in the middle of trial."

Angus is right. Although you can defend the way the rules are orga nized, they are harder to work with than they should be.

Take Rule 801, for instance. It is not just a definition of hearsay. It also

includes (depending on how you count them) either four or eight sep arate exceptions to the hearsay rule, including one that should also be listed in Article Six, Witnesses.

So go ahead and ask Logan's question. Why would the drafters do that?

The answer is a bit of twisted le gal theory.

Start with one of the scholarly definitions of hearsay. Hearsay is evi dence that depends for its probative value on the veracity of an out-of court declarant. Using that defini tion, there is some justification for saying admissions are not hearsay.

Wait a minute, you say. How does that figure?

The scholarly definition focuses on whose credibility is at issue. If your own statement is being used against you, you can hardly complain that you have been denied the right to cross-examine yourself. You have the

whole trial to explain what you meant by your statement. So scholars have argued that under their defini tion of hearsay, admissions do not need to be exceptions to the hearsay rule because they are not even hear say in the first place.

But you already know that the Federal Rules did not adopt the schol

92 ABA JOURNAL/ MAY 1989

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'The Federal Rules are leaded with hidden rules. They're like one off those cartoons where

you're supposed to find the hidden monkeys.'

ar's definition of hearsay. They went with the trial lawyer's version?one that is easier to use.

It has two parts. Hearsay is: (1) an out-of-court statement, (2) that is offered to prove the truth of the mat ter asserted.

Under that definition, admis sions are obviously hearsay. They are out-of-court statements, and they are offered to prove the truth of what they say. So if they are hearsay, they need a hearsay exception to be ad missible in evidence, right?

Not according to the drafters of the Federal Rules. Even though they started with the trial lawyer's defi nition of hearsay, they switched to the scholar's definition when it came to listing hearsay exceptions. The re sult is a whole series of out-of-court statements that are admissible to prove their truth, but are labeled "non-hearsay." Small wonder some

lawyers get confused and others can not even find the right rule.

Here are the different admis sions that are called non-hearsay by Rule 801:

Admissions?the party's own statements.

Adoptive admissions?some one else's statements that the party has adopted as his own.

Admissions by authorized agents.

Admissions by an agent or servant about the scope of his em

ployment. (Notice these do not have to be authorized statements. This is an important change from the com mon law.)

Admissions?statements by co

conspirators during the course and in furtherance of the conspiracy.

And there are other statements that are admissible under Rule 801. Prior statements are admissible as non-hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination about the state

ment and it is a: Prior inconsistent statement

given under oath, subject to the pen alty of perjury at a trial, hearing, oth er proceeding (such as a grand jury session) or deposition. In other words, some (but, by no means, all) prior in consistent statements are admissible for their truth. That is a change from the common law, where prior incon sistent statements were only admis sible to attack the credibility of the

witness.

Prior consistent statement of fered to rebut an express or implied charge against the declarant of re cent fabrication or improper influ ence or motive. This is another change from the common law, where prior consistent statements also were

only admissible on the issue of the credibility of the witness.

Prior identification of a person made after perceiving him. This, too, is a change from the common law. The earlier rule was that a prior iden tification of someone was only ad

missible to corroborate an in-court identification.

That meant two things: First, there had to be an in-court identifi cation. Without it, evidence of the out-of-court identification was sim ply not admissible. Second, the out of-court identification only went to the credibility of the witness. But now it is admissible for its truth, and the rule does not require an in-court identification.

Stop just a minute before we go any further.

Notice that in each one of the last three kinds of "non-hearsay," the de clarant?the one whose earlier state ment is offered into evidence?must testify and be subject to cross-exam ination about the statement.

Why does that matter? The thought is if you can cross

examine the declarant now, you can

not complain that you were unable to cross-examine him at the time he

made the statement. Whether you agree with that idea or not, it is the reason for making these statements admissible for their truth.

And another thing. Being able to cross-examine a witness about his earlier statement is why these three categories are not hearsay according to the scholar's definition. How can

they depend for their probative value on the veracity of out-of-court de clarants if those declarants are in court, subject to cross-examination about what they said?

The trouble is, under the trial lawyer's definition, they are still out of-court statements offered to prove their truth.

So there you have it. Rule 801 has a total of three different prior state ments and five different kinds of ad missions, all admissible for their truth. And if you think that is a lot

of operative rules to put in a defini tion, you are not alone.

One last point before we leave Rule 801. The mechanics for dealing with prior inconsistent statements are

right where they belong?in Rule 613, the article that deals with witnesses. But the mechanics for dealing with prior consistent statements are in Rule 801.

Do not think Rule 801 is the only culprit. There are other hiding places in the Federal Rules.

The rules dealing with expert opinions are in Article Seven?Opin ions and Expert Testimony. But the rules for how to impeach or support an expert with a learned treatise are in Rule 803(24) Hearsay.

The familiar Rule of Complete ness got renamed "Remainder of or Related Writing or Recorded State ments." And it is tucked away under Rule 106, General Provisions, instead of Article Four under Relevance.

When the accused in a criminal case testifies to a preliminary matter, that does not open the door to cross examination about other issues in the case. That is in Rule 104(d), General Provisions, not under Relevance in Article Four, or under Witnesses in Article Six.

And look out. Rule 104(d) is real ly a trap. Even though testifying to a

preliminary matter does not open the door to cross-examination about "other issues in the case," it does open the door to cross-examination about prior convictions and uncharged mis conduct, Rule 104(e).

Other rules are hidden because the drafters avoided some of the tra ditional language of evidence:

The Best Evidence Rule is not found under "Best Evidence." It is in a series of rules, including Rule 1002, Requirement of Original.

The requirement for hypothet ical questions is abolished in Rules 703 and 705 without using the words "hypothetical question."

Rule 103 adopts the doctrine of harmless error without ever calling it "harmless error."

Maybe you are more concerned with what is left out from the Federal Rules (a topic in itself) than you are with what is simply hard to find. Still, it is worth doing what Angus did? annotate, translate and highlight your set of the rules so you can find what you want when you need it.

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Article Contentsp. 92p. 94

Issue Table of ContentsABA Journal, Vol. 75, No. 5 (MAY 1989), pp. 1-116, 119-122, 125-140Front MatterA Message From the PresidentDISCIPLINARY ENFORCEMENT: TIME FOR RE-EXAMINATION [pp. 8-8]

Letters [pp. 12, 14-15]CORRECTIONS: The Fall from Grace of a Greylord Judge [pp. 14-14]NewsTHE DUTY TO INFORM: Suspension has lawyers squealingon other lawyers [pp. 17-18]ALLEGED KLANSMEN'S WHITE JURY: Alabama considers law applying Batson to the defense [pp. 20, 22]LAWYER CONVICTS, THEN DEFENDS: He 'switches hats' at accused murderer's request [pp. 24, 26]TOYOTA WINS TRADEMARK APPEAL: Lexus for luxury cars, Lexis for legal research [pp. 26-26]MD GUIDELINES: AMA mulls standards of care [pp. 28-28]JUDGE SENTENCES LIBRARY TIME: Juvenile offenders must read as a condition of probation [pp. 29-29]NIGHT CALLERS BEWARE: Controversy over call-tracing system [pp. 30-31]MICH. NOW ALLOWS REFERRAL FEES: 6 states now permit fee-splitting [pp. 32-32]S&L FRAUD INVESTIGATED: Prosecutors weighing criminal sanctions for lenders [pp. 34-35]CRACKDOWN ON POLLUTERS: Companies now face indictments [pp. 36-37]KLAN CABLE SUIT: Claims right to air 'Klansas City' on public-access TV [pp. 38-39]QUOTES [pp. 40-40]

At Issue: CENSORSHIP: Is 'the flag on the floor' valid speech? [pp. 42-43]Supreme Court Preview [pp. 44-44]Supreme Court ReportINS AND OUTS OF COURTS [pp. 46, 48, 50, 52]

IN THE SUPREME COURTTake This Case for Free or Else [pp. 54-58]Abortion Revisited [pp. 60-64]

Lawyers Move In-house [pp. 66-69]ERISA: An Overview for Non-ERISA Attorneys [pp. 72-74, 76]The Judge's Dark Secret [pp. 78-82]Damages in Wrongful Termination Cases [pp. 84, 86, 88]LitigationHIDDEN RULES [pp. 92, 94]

Lawyer LifestylesON THE ROAD: Wanderlust has led Susan Haddad around the world [pp. 96-98]

Trends in the Law [pp. 100, 102, 104, 106]Your FinancesINFLATION FIGHTERS [pp. 108, 110]

EthicsBEYOND YES AND NO [pp. 112-112]

Management SolutionsFACING OFF ON VIDEO [pp. 119-120]

New Products [pp. 125-126]Correction to Lawline/"LaserJet Economy" [pp. 126-126]Books for LawyersDANGEROUS LIAISONS [pp. 127-128, 130]DAMAGE CONTROL [pp. 130-131]NOTED IN BRIEF [pp. 131-131]

Your ABAREPEAL ANTITRUST EXEMPTION [pp. 132-132]AROUND THE ABA [pp. 133-134]

War Stories [pp. 140-140]Back Matter