Florida Law Review Forum

Justin Sevier
On Hearsay Dragon-Slaying
Response to Liesa L. Richter, Posnerian Hearsay: Slaying the Discretionary Dragon

Professor Liesa L. Richter evokes dragon imagery in her important debate with Judge Richard Posner over the future of Article VIII of the Federal Rules of Evidence, which governs the use of hearsay evidence at trial. In her article, titled Posnerian Hearsay: Slaying the Discretion Dragon, Professor Richter critiques Judge Posner’s latest proposal for analyzing hearsay, which appears in his concurrence in the Seventh Circuit case, United States v. Boyce. As I discuss in more detail below, there is actually much agreement between Professor Richter and Judge Posner with respect to the policy and doctrinal intricacies surrounding the rule barring hearsay evidence. However, they disagree strongly regarding the role of judicial discretion in determining whether certain types of hearsay are “reliable enough” to overcome Article VIII’s general bar on the use of second-hand information as evidence at trial. This Article briefly (1) analyzes Judge Posner’s proposed approach to hearsay, (2) examines Professor Richter’s critique, and (3) discusses other paradigms—supported by experimental psychology research—by which to evaluate out-of-court statements used as evidence at trial. Read more.