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First Page

99

Keywords

evidence; Federal Rules of Evidence; FRE; exculpatory statement; hearsay; excited utterance; statement of then-existing state of mind; FRE 803(2); FRE 803(3); defendant’s statement; out-of-court statement

Abstract

Exculpatory hearsay statements made by criminal defendants often warrant admission under the Federal Rules of Evidence (FRE) as excited utterances, under Rule 803(2), or as statements reflecting a then-existing state of mind, under Rule 803(3). Nevertheless, defendants often struggle to have their exculpatory statements admitted pursuant to these rules—even when those statements fulfill their categorical requirements.

This Comment surveys the different approaches courts take to determine whether exculpatory hearsay statements made by criminal defendants are admissible under Rules 803(2) and (3). It argues that courts too often misapply these rules to exclude defendants’ exculpatory statements. In particular, courts counteract the rules’ requirements and underlying purposes when using motive to fabricate as a barrier to admission. Further, courts sometimes construe their requirements in an unreasonably narrow manner.

This Comment concludes that courts should rely exclusively on the express, categorical requirements of Rules 803(2) and (3) when determining the admissibility of exculpatory hearsay statements. It cautions that courts should apply these requirements correctly and consistently with the drafters’ intentions—without interpreting them more narrowly than intended or barring admission based on sincerity concerns their categorical requirements do not contemplate. Additionally, this Comment posits that imposing a discretionary trustworthiness requirement would risk undue uncertainty and is not needed to deter the dangers posed by fabricated exculpatory statements. Rules 803(2) and (3) provide an objective framework to ensure that only hearsay statements that are sufficiently necessary and reliable are admitted into evidence. And they offer multiple avenues for judges to exclude unreliable evidence. Moreover, existing institutional safeguards adequately mitigate the risks associated with fabricated hearsay statements.

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