Vanderbilt Law Review

First Page



The hearsay rule initially appears straightforward and sensible. It forbids witnesses from repeating secondhand, untested gossip in court, and who among us prefers to resolve legal disputes through untested gossip? Nonetheless, the rule's unpopularity in the legal profession is well-known and far-reaching. It is almost cliche to say that the rule confounds law students, confuses practicing attorneys, and vexes trial judges, who routinely make incorrect calls at trial with respect to hearsay admissibility. The rule fares no better in the halls of legal academia. Although defenses exist, scholars have unleashed a parade of pejoratives at the rule over the years, proclaiming it, among other things, "one of the law's most celebrated nightmares," "the spoiled child" of evidence law, the "partner in terror" to the rule against perpetuities, and "a bloated, nonsensical mess that is detached from empirical reality and common sense." How can such a conceptually simple rule create so much legal agita? In fact, there is a plethora of reasons: (1) the rule's confusing definition makes it difficult to apply; (2) it often does not actually do what it purports to do, on account of its hodgepodge of exceptions and exemptions; and (3) it suffers from the minor problem that the empirical assumptions on which the rule is based are untrue. It follows that perhaps no other evidentiary rule is as ripe for reform on the fiftieth anniversary of the Federal Rules of Evidence than the rule barring hearsay. And in reimagining the rule, it is time to abandon the leeches and bloodletting that led to the current rule and embrace an evidence-based approach to hearsay reform.