evidence; hearsay; reform; rules; federal rules of evidence


Federal Rule of Evidence 801(d)(1)(A) is a compromise. The Supreme Court’s version of the Rule, which it submitted to Congress in 1972, would have made all prior inconsistent statements of a witness present in court for cross-examination admissible as substantive evidence. The Court’s proposal was strongly favored by the Advisory Committee on the Federal Rules of Evidence (or “the Advisory Committee”) members who drafted the Rule. They submitted it to the Court knowing that it was consistent with the approach taken by some states and favored by authorities like John Henry Wigmore, Edmund Morgan, and Charles McCormick. But the Court’s proposal was a departure from the common law approach, which treated all prior inconsistent statements as hearsay, admissible only for impeachment. The compromise permits statements to be admitted when the declarant is present in court for cross-examination and the prior statement “is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.”

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