The Costs and Benefits of a Categorical Approach to Hearsay
Response to Liesa L. Richter, Posnerian Hearsay: Slaying the Discretionary Dragon
Recent remarks by Judge Richard Posner of the Seventh Circuit Court of Appeals have breathed new life into the old debate about hearsay. In a concurrence in United States v. Boyce Judge Posner suggests that judges should examine the reliability of hearsay evidence directly. Seeking to engage Judge Posner on terrain that he would appreciate, Professor Richter performs a cost-benefit analysis of his proposed rule. Her conclusion is that the flexible, three-pronged approach provided by Judge Posner is a “bad bargain” for several reasons. In this brief response, I hope to unpack and complicate Professor Richter’s claims a bit. My primary conclusion is that, while Professor Richter’s proffered solution—stay the course; make incremental improvements to the current patchwork of categorical hearsay rules—is eminently sensible, her analysis glides somewhat easily over several assumptions about how Judge Posner’s rule might operate in practice and, in turn, how the rule would impact the litigation process. Read more.