In 1961, Judge Jack Weinstein laid out an approach that could support a dramatic transformation of hearsay law—more receptive in general to hearsay, more reliant on the discretion of the trial judge and on procedural considerations, and recognizing that the confrontation right of an accused might render inadmissible some evidence that would be admissible in a civil case. The Federal Rules of Evidence took a cautious approach, mildly expanding the admissibility of hearsay, the discretion of the trial judge to admit hearsay, and the role of procedural considerations. This Article argues that failure to provide independent protection for the confrontation right explains the failure to adopt more sweeping hearsay reform. But now that the confrontation right is protected, under Crawford v. Washington, 541 U.S. 36 (2004), by a doctrine that does not depend on hearsay law, the case for such reform becomes compelling. This Article lays out how hearsay law might be fundamentally transformed, in accordance with the principles advocated by Judge Weinstein in 1961. The changes advocated here—rendering unnecessary the prevailing system based on a rigorous definition of hearsay and a long list of exemptions—would protect the confrontation rights of accused persons, allow for the fair and efficient presentation of evidence, and advance the search for truth.
Richard D. Friedman,
Jack Weinstein and the Missing Pieces of the Hearsay Puzzle,
DePaul L. Rev.
Available at: http://via.library.depaul.edu/law-review/vol64/iss2/10