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Judge Posner’s suggestion in his concurrence in U.S. v. Boyce to rewrite the hearsay rule and its exceptions is generating a lot of Debate

On Behalf of | Sep 18, 2014 | Firm News |

Judge Posner in the 7th Circuit, widely regarded as one of the more thoughtful judges, believes that “the ‘hearsay rule’ is too complex as well as being archaic.” In U.S. v. Boyce, Boyce was convicted of being a felon in possession of a firearm. He was convicted based, in part, on the 911 call that his girlfriend, Portis, made claiming Boyce had just hit her, was going crazy and had a gun. In jail, Boyce wrote Portis trying to get her to recant and say she lied because she was jealous. Apparently neither the prosecution nor Boyce could get Portis to testify at trial, and the 911 call recording and transcript were admitted into evidence under the “present sense impression” and “excited utterance” exceptions to the hearsay rule.

Judge Posner cites authority for the proposition that “most lies are in fact spontaneous,” undermining the logical underpinning of the “present sense impression” exception, and asserts that the “excited utterance” exception “stands on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to consider ancient dogmas.”

Instead, he advocates for “[a] simpler rule, the core of which would be the proposition (essentially a simplification of Rule 807) that hearsay evidence should be admissible when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome.”

FRE 807’s catchall rule makes the Judge the gatekeeper. Making the Judge the gatekeeper of all that is currently encompassed by the hearsay rules seems to be a drastic move premised on an idealistic belief in the objectivity and judgment of the trial bench. Some witnesses reportedly have gamed the system with phony 911 calls.

Was Portis a jealous liar or was she fearful for life? When the cops confronted Boyce shortly after the call, he ran away and was seen throwing a gun away that the cops found. Bullets for the gun were found in his pocket. The hearsay exceptions gave the court a reasonable framework for considering whether Portis’s 911 call should be admitted.