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Say what? Confusion in the courts over what is the proper standard of review for hearsay rulings.


"[I]t is not entirely clear whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review." (1) "The circuits are also split (sometimes internally) on essentially the same issue in the context of ... evidentiary rules." (2) In 2012, judges from both the Sixth Circuit and Ninth Circuit Courts of Appeals recognized both intra-circuit confusion and an inter-circuit split on what standard of review should apply to a district court's determination of whether evidence is admissible under the hearsay rules and exceptions. (3) Professor John Wigmore noted in 1904 that the hearsay rule dates back to the 1500's and that it was essentially fully developed by the 1700's. (4) Several hundred years after the creation and development of the hearsay rule, however, the appellate court still struggles with whether the resolution of a hearsay objection is a matter of law, a matter of fact, or something that is completely within the discretion of the trial court.

The discussions on the authority split noted in the Sixth and Ninth Circuit both occurred in 2-1 decisions at the federal appellate level--one on April 19, 2012 and one on November 16, 2012--with the dissenting opinion in each case emphasizing that an abuse of discretion standard should be the proper standard of review for an appellate court in all evidentiary rulings. (5) In recognizing the confusion, the majority opinion in Wagner v. County of Maricopa (6) agreed with the dissent on one key point and highlighted the confusion in the second line of the "Discussion" in its opinion by acknowledging the dissent and agreeing that there is a lack of clarity within the Ninth Circuit. (7) However, the court chose not to resolve the ambiguity and stated that the court's "conclusions would be the same under either standard." (8)

In United States v. Clay (9) the primary issue on petition for rehearing en banc involved judicial review of a bad-acts evidence ruling under Federal Rule of Evidence 404(b). (10) In the dissent, which called for an abuse of discretion for all evidentiary decisions, Judge Raymond M. Kethledge noted his exhaustive research in articulating the split in authority on the same issue of what standard of review to apply in the hearsay context. (11) Judge Kethledge not only mentions competing standards of review from different circuits for hearsay rulings, he also demonstrates to the reader that the Sixth and Ninth Circuit have intra-circuit confusion on the rules by citing cases from within both of those circuits that use either a de novo standard or an abuse of discretion standard to review a hearsay issue. (12)

State appellate courts have also struggled in determining the proper standard to apply when reviewing district court hearsay rulings. Some states, such as Nebraska and Utah, have even created hearsay-specific standards of review "tests" because of the multiple layers of inquiry that go into each hearsay determination. (13) As recently as 2005, other states have even overruled past cases that used abuse of discretion to review hearsay rulings to create a new de novo review standard when reviewing hearsay rulings. (14)

Most notably, in State v. Saucier, (15) the Connecticut Supreme Court performed a state-by-state and circuit-by-circuit survey in 2007 in an attempt to "clarify" the standard of review that appellate courts in Connecticut should use with respect to district court hearsay rulings. (16) In that case, the majority concluded that there is no "categorical" or "bright line" rule approach to determining the standard of review applicable to evidentiary claims on appeal and held that courts should use a different standard depending on the context of the ruling. (17) In Saucier, three of the seven justices were part of a concurring-in-part opinion that was written separately only to disagree with the standard of review discussion in the majority opinion. (18) As noted within the concurring opinion, "[u]ntil the majority's decision in this case, it had been 'axiomatic [in Connecticut] that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference'" and that "[t]his deferential standard is [generally] applicable to evidentiary questions involving hearsay." (19)

Consequently, many federal and state appellate courts end up in one of two positions. Courts are often either confused about what standard of review is proper for hearsay rulings or are reconsidering whether new tests should be created specifically for hearsay rulings, with many jurisdictions abandoning the traditional abuse of discretion review of evidentiary rulings. At the same time, however, many of these opinions are met with opposing viewpoints from other judges sitting on the same panel who are typically urging for a simple abuse of discretion review for hearsay and all other evidentiary rulings. (20)

This article will explore the unique nature of the hearsay rule and its exceptions that have created chaos among the various federal and state jurisdictions. The confusion oftentimes stems from the fact that trial courts have traditionally had broad discretion to make evidentiary decisions based on its understanding of the issues and evidence at trial, as well as its ability Saucier, 926 A.2d at 640-41 (concluding that no rule determines standard of review applicable to evidentiary claims on appeal). to hear and assess witness testimony at the trial level. (21) However, as will be seen in this article, courts are reconsidering this traditional deference in the context of hearsay rulings. In exploring the different levels of review used by federal and state appellate courts, at least six different "tests" are used to review a trial court's hearsay ruling:

Abuse of discretion standard traditionally used for all evidentiary rulings;

De novo review as a general rule with several documented exceptions that require an abuse of discretion or clear error review;

Two-part test that asks appellate courts to (a) review de novo the question of whether a statement is hearsay and (b) review for abuse of discretion regarding whether the statement falls within a hearsay exception;

Two-part test that asks appellate courts to (a) review for clear error the factual findings underpinning a trial court's hearsay ruling and (b) review de novo the court's ultimate determination to admit evidence over a hearsay objection;

Three-part test that asks appellate court to (a) review legal questions for correctness or legal error under a de novo review, (b) review questions of fact for clear error, and (c) review the final ruling on admissibility for abuse of discretion; and

No bright line rule at all, but instructs appellate courts to apply a different standard of review depending on the context of each specific hearsay ruling. (22)

After reading the conflicting opinions on this issue and after learning that federal and state appellate courts have created at least six different standards to review hearsay rulings by the trial court, you might be left thinking "say what?" to express your surprise or astonishment that the courts have not figured this out, even though the hearsay rule has been around for centuries. (23)

The article, in Part II, will explain the various standards of review used by appellate courts and how those have been defined generally. In Part III, the article will explain why trial courts have traditionally been given deference in terms of its decisions on admissibility of evidence. The article will then briefly discuss, in Part IV, the hearsay rule and some of the exceptions that have been the subject of confusion for appellate courts. The article, in Part V, will attempt to explain how the various appellate courts have grappled with the issue of how much deference should be afforded to trial courts' decisions to admit or exclude evidence on hearsay grounds. Finally, in Part VI, the article will argue that this may just be a matter of semantics, and that it is possible that none of the courts are, in fact, in disagreement conceptually. Most importantly, the article suggests that appellate courts might be able to create a simpler, more coherent approach to reviewing hearsay rulings by the district courts.


Standards of review are the metaphorical hinges on the door to the realm of appellate review; they determine just how much deference will be allowed through the door when a case is up for review. Understanding the purpose and application behind standards of review is a crucial courtroom skill. Standards of review not only define the framework for appeal by highlighting both the facts and the law of a given case, they also determine whether the appellate court will use a plenary or deferential approach when reviewing the trial court's decision. (24) Consequently, standards of review are, more often than not, outcome-determinative; they can "doom any number of appeals from the start...." (25) It would seem obvious, then, that the precedent for a standard of review would be given great weight and significance by the reviewing court in its specified application. (26)

However, in actual practice, the standards of review are not often given great consideration. (27) Often this is because the application of a given standard of review is not always easily discernible. (28) As a result, standards of review "are sometimes ignored, manipulated, or misunderstood" and are frequently disregarded as a boilerplate insert in a court opinion. (29) Yet, for standards of review to function properly, they must be thoroughly understood, correctly applied, and used throughout an analysis by a reviewing court when making a judgment on the decision of a lower court. (30)

To understand and apply a standard of review properly, the appellate court must have knowledge of what the standards of review are and understand the standard of review's designated purposes. (31) Standards of review are established through a court rule, a judicial decree, a state statute, or by constitution. (32) The concept behind standards of review is that an appellate court will use the standards for guidance in approaching both a trial court's decision and the issues up for review. (33) More specifically, the standard of review applied is intended to indicate the amount of deference to be given to the lower court's procedure and decision and to set forth the proper materials that the appellate court should look to during the review process. (34) Ultimately, a standard of review answers two similar, yet different, questions: (1) "'How 'wrong' the lower court has to be before it will be reversed?'" and (2) What is necessary to overturn the [lower court's] decision? (35) When an appellate court is faced with these questions, the most common standards of review used to supply an answer (or at least a guideline) are de novo, clearly erroneous, and abuse of discretion. (36)

A. De Novo

The English translation of the Latin phrase de novo means "from the beginning" or "anew," which lends to the understanding that the de novo standard of review does not provide any deference to the lower court's procedure or decision. (37) When employing the de novo standard of review, the appellate court is placed in the same position as the lower court and is equally equipped with the materials needed to decide the issue. (38) The de novo standard of review, also referred to as "independent" or "plenary" review, is traditionally used for the review of questions of law, though this is not stated by any rule. (39) Questions of law are reviewed de novo on the theoretical basis that a reviewing court is afforded more time to research and consider such issues because they are not confronted with the fast-paced trials of the lower court. (40) Additionally, the reviewing court is considered to be at an advantage because it contains a multi-judge panel that is capable of greater amount of dialogue. (41)

Due to the appellate court's equitable footing when a lower court's decision is being reviewed de novo, the appellate court reviewing the issue is provided with substantial power to reverse the decision. (42) De novo review awards the appellate court with greater authority to reverse a decision without deference. (43) Thus, an individual bringing a case on appeal is expected to have his or her best chances staked here. (44) Accordingly, it may be most advantageous to frame an issue as a question of law. (45) However, de novo review is also occasionally applied to mixed questions, which are questions involving both those of law and fact. (46) Confusion and misuse have a higher chance of occurring when questions of fact are reviewed alongside questions of law under the de novo standard of review because questions of fact are reviewed with deference under the clearly erroneous standard. (47)

An appellate court is not equipped with the same materials as the lower court in making factual findings. (48) Reviewing mixed questions of law and fact under a "blanket de novo standard" creates the dangerous possibility that an appellate court could improperly reverse factual findings. (49) Because this could change the outcome of a case entirely, it may be wiser for reviewing courts to provide a deeper case-by-case analysis of which standard should apply to mixed questions of law and fact. (50)

B. Clearly Erroneous

When an appellate court reviews a lower court's decision for clear error, it allows a handsome amount of deference to the lower court's determinations in reaching a decision. (51) Such deference is accorded under the clearly erroneous standard of review because the trial court is considered to act as the principal fact-finder in a case. (52) Once the factual findings have been made, the trial court will apply those facts to the law to produce its ultimate determinations. (53)

The trial court is given the role of the fact-finder because the trial court is considered to be in a better position than a reviewing court to determine the facts; the trial court possesses more experience in uncovering the facts and observing witness testimony. (54) Additionally, independent review of the facts of every case by a reviewing court that was not present for witness testimony or equipped with the same materials as the trial court could lead to a greater chance of mistake. (55) Also, this would be a waste of valuable resources. (56) The trial court is naturally in a better position to view the facts; therefore, the appellate court provides deference to the trial judge's factual findings and only reviews questions of fact for clear error. (57) A reviewing court will find a trial court's decisions as clearly erroneous when, after considering the evidence as a whole, the lower court has been found, with certainty, to have made a clear mistake. (58) An appellate court cannot make a clearly erroneous finding if it would have had a different interpretation of the facts or if it does not agree with the decisions reached by the lower court. (59) On appeal, however, if the appellate court does deem a factual finding as clearly erroneous, it may not reverse the lower court's decisions and make its own findings of fact. (60) When reviewing for clear error, the appellate court is equipped only with the authority to remand the case to the lower court "for a further attempt at proper findings." (61) As a result of the considerable amount of deference given to the lower court, it is not common for an appellate court to find a trial court's decision to be clearly erroneous. (62)

C. Abuse of Discretion

When a district court's decision entails the exercise of a judge's discretion, an appellate court will review those decisions for an abuse of discretion. (63) The abuse of discretion standard of review does not (and perhaps cannot) have a singular definition; applying the abuse of discretion standard is greatly dictated by the surrounding circumstances and, as such, the application of the standard allows for flexibility accordingly. (64) While the abuse of discretion standard provides the greatest deference to the lower court's decision, the amount of deference given will always vary because the reasons are numerous for allowing a trial judge to exercise discretion. (65) Theoretically, as long as the lower court's discretion has provided a decision that falls within a range of acceptable choices, it will be allowed to stand and the appellate court will not typically find an abuse of discretion. (66) Thus, the abuse of discretion standard, at best, is a "useful generic term ... [that] more accurately describes a range of appellate responses." (67)

The situations in which an abuse of discretion occurs are often broad and overwhelming because there is no one definition for abuse of discretion. (68) Thus, in general, a reviewing court will find an abuse of discretion to exist in many different situations. The court will use an abuse of discretion standard when a judge fails to consider necessary factors, considers the wrong factors, applies incorrect or erroneous conclusions of law, applies incorrect or erroneous assessments of evidence to form a decision, or makes a completely arbitrary decision. (69)

The appellate court's attention in reviewing for an abuse of discretion is theoretically supposed to be concentrated on the process used by a lower court in making their decision, as opposed to reviewing the decision itself. (70) After finding an abuse of discretion, whether actually found in the trial court's process or not, the appellate court has the authority only to reverse and remand the decision. (71) As with the clearly erroneous standard of review, the decision made was based on the trial court's discretionary power; the reviewing court was not present when the discretionary decision was made and cannot replace that discretionary decision with one the reviewing court would have made. (72)

However, the "ideal" application of the abuse of discretion standard to the issues under review does not always play out in practice as it would in theory. (73) The abuse of discretion standard has no concrete definition or application to guide the reviewing court effectively. Thus, the circumstances in which this standard applies has broadened from examining the process used in making discretionary decisions to include even the merits of a decision. (74)

A prime example of where this occurs is within the main focus of this paper: hearsay rulings. Several states have defined the abuse of discretion standard to apply to both the interpretation of a hearsay rule, which is a matter of law, as well as to the admissibility of the hearsay, which is a matter of discretion. (75) Using the abuse of discretion standard in this all-encompassing manner forces the appellate court to review questions of law with deference, thereby placing great decision-making authority in the hands of the trial court when the appellate court is equally able, if not more able, to make legal determinations. (76)

D. Problems with Defining and Applying Standards of Review

For the standards of review to function as they were intended to, they must be understood, correctly analyzed, and applied by the reviewing courts throughout the review process. (77) The ability of the appellate court to do so has been impeded by the difficulty in concretely defining all of the standards of review, the lack of a clear line between determining issues of fact and issues of law, and the indecision over which standard is proper to apply in instances of mixed questions. (78) In light of the confusion created by these obstacles, most courts have resigned themselves to inserting boilerplate statements in their opinions by stating briefly which standard of review will be used before delving into the courts' analysis. (79) In some court systems, the confusion has created intra- and inter-circuit splits. (80) Consequently, the theory behind standards of review does not translate into practice. (81) To obtain an understanding of the uses and applications of standards of review, it is important to comprehend where the confusion is stemming from.

1. Analyzing the Definitions

Though standards of review have been in existence since the beginning of American jurisprudence, the standards, as we use them today, are "modern creatures." (82) The appearance of standards of review in court opinions is still a relatively new concept when compared to how long the standards of review have actually been used. (83) Defining standards and their specific applications, in this early stage, has been a difficult task, which has been complicated by the vague language and boundaries used in all attempts to do so. (84) As a result, standards of review, at best, provide only a guideline of how much deference a reviewing court should grant a lower court, rather than a definitive measure. (85) A clear explanation of exactly when each standard should apply is lacking. (86)

Many courts have attempted to clarify some of the vagueness on their own by creating new definitions, qualifications, or by expanding on their explanations. (87) Despite the good faith behind these attempts, most result in creating a definition that resembles more of a labyrinth than a clear path. (88) A major problem arising from this labyrinth lies in its inability to determine what an appellate court's limitations are in applying a scope of review to a particular issue. (89) The lack of solid, material definitions and application procedures for the standards of review necessarily convolutes the process for determining the appropriate amount of authority the appellate court should wield when reviewing a lower court's decision. (90) This is already occurring in the review of evidentiary matters and mixed questions of law and fact. The courts are now being faced with situations where one standard of review is applied to all of the issues presented, which allows deference where none should be given or, in the alternative, provides no deference when deference should be recognized.

2. The Law-Fact Distinction

Analyzing the definitions of each standard of review has not been a simple task and further analysis into the application of the standards of review highlights some of the difficult questions the courts have been facing. (91) Most notably among these questions is whether an issue under review is one of law, one of fact, or a mixed question of law and fact. (92)

The law-fact distinction is the "broad basis of review differences." (93) It is important to recognize that the standard of review for issues of law versus issues of fact allow varying levels of deference to the lower court. (94) Thus, understanding the law-fact distinction is especially critical when an issue can be labeled as either law or fact because the chosen standard of review will be based upon that label and will often be outcome-determinative on appeal. (95)

Deciding whether an issue is one of fact or one of law is not always a simple decision; it is one that is highly circumstantial. (96) When an issue could potentially be classified as either law or fact, the decision will usually rest on the wording or on the scope of the decisions made by the lower court. (97) Once a reviewing court determines whether an issue is one of law or fact, this decision dictates which standard of review the appellate court will apply. (98) If an issue is deemed to be one of law, the appellate court should review the issue de novo, without any deference to the lower court, by asking whether the decision made below was correct. (99) If an issue is deemed to be one of fact, the appellate court should review the lower court's decision for clear error, which provides the lower court with a great amount of deference by asking whether the decision-making process of the lower court was reasonable. (100) If an issue is neither one of law or fact and turns on the exercise of the trial judge's discretion, then the issue should be reviewed for abuse of discretion, providing the lower court with the greatest amount of deference, though, ideally, the appellate courts will put aside the fact-law distinction and their corresponding standards of review. (101)

3. Questions of Mixed Law and Fact

Correctly interpreting the law-fact distinction is often outcome-determinative because the distinction determines which standard of review should be applied and how much deference should be accorded. However, because the standards of review for issues of law and fact are very different, there is considerable difficulty involved in dictating which standard of review should apply to questions of mixed law and fact. (102) A question of mixed law and fact asks, "[w]hether the rule of law applied to the established fact is or is not violated." (103)

The confusion over which standard of review should be employed for issues of mixed law and fact arises because there is no uniform test applied to determine the proper standard of review in these instances. (104) Many circuits apply a de novo standard of review to mixed questions, whereas other circuits treat mixed questions with varying levels of deference. (105) Additionally, some circuits determine the standard of review on a case-by-case basis, while other circuits reveal no pattern in determining which standard to apply. (106) Thus, the courts have provided little guidance in applying the proper standard of review when faced with a question of mixed law and fact. (107)

4. Standards of Review as Boilerplates

Due to the lack of guidance in deciphering both the law-fact distinction and mixed questions of law and fact, as well as the confusion in finding proper standards of review, many courts have turned to using standards of review as merely a postscript, if at all. (108) Standards of review have become a "cut and paste" option for court opinions and offer little analysis regarding why a specific standard has been chosen in reviewing a particular case. (109) Yet this is no more helpful than ignoring the standards of review altogether. (110) Using standards of review as boilerplates allows the reviewing courts to present them as self-defining and, sometimes, self-applying. (111) If the previous discussion has shown anything, it shows that the standards of review are anything but self-defining and self-applying. (112) Thus, viewing standards of review as boilerplate statements propagates judicial confusion. (113)

Furthermore, a lack of proper articulation of analyzing the standard of review chosen increases the likelihood for judges to find loopholes for employing judicial discretion. (114) Standards of review are complex and rely heavily on circumstance. For there to be any real chance of clearing up the confusion surrounding standards of review, the appellate court must engage in the task of comprehensibly explaining when a standard of review applies, why it is proper, and how it is to be applied throughout their opinions when making a decision. (115)

Standards of review often sound deceptively simple. The truth is that all of the standards have "twists, in language or in practice" that distinguish them from one another and from the similar situations in which they can apply. (116) These twists reveal the complex process behind properly applying standards of review and just how tangled that process has become. (117) Nowhere has this point been made clearer then in reviewing evidence where the boilerplate standard used by the courts no longer fits the practice. (118)


The appellate court states that evidentiary rulings made by the lower court are within the discretion of the lower court and, as such, are generally to be reviewed for an abuse of discretion. (119) In fact, each Federal Circuit Court and the Supreme Court has stated that evidentiary rulings are typically reviewed for an abuse of discretion. (120) Abuse of discretion has been the go-to standard of review for evidentiary rulings because our frame of reference for the appropriate use of judicial discretion is "the trial forum, where a solitary judge rules on the admission of evidence. " (121) This discretion suggests that, in evidentiary matters, among other areas of law, the trial judge is not bound by any law to give a decision on an issue one way versus another. (122) Evidence rules allow the trial court to exercise discretion when the trial court is in a better position to make an evidentiary ruling than an appellate court. (123) The trial court is allotted further discretion regarding evidentiary questions. (124)

The appellate court must review these decisions with great deference because it better enables the trial judge to manage his or her courtroom and produce decisions that have finality. (125) Having the appellate court review evidentiary issues for an abuse of discretion enables the trial court to make decisions with necessary leeway so that the ultimate goal of "truth-determination" may be achieved. (126) Due to the great amount of deference conferred upon trial courts in evidentiary matters, the trial court is "granted a virtual shield" from reversal. (127) Generally, as long as a decision falls within an acceptable range of possible decisions, the appellate court will not overturn this decision, even if an error existed in the application of discretionary rules. (128)

However, the idea that not all evidentiary rulings should be reviewed under the unitary standard of abuse of discretion is fundamental and crucial to proper appellate review. (129) While the appellate court generally applies a generic "abuse of discretion" rubber stamp to evidentiary issues on review, the trial court's appraisal in forming a decision can be "highly variable" and sometimes requires a different, more applicable review approach. (130) A trial court's evidentiary decision as to an admissibility determination, at times, can hinge on both legal and discretionary questions. (131) When issues of interpretation and admissibility are both present in an evidentiary ruling, it is necessary for the reviewing court to distinguish whether a de novo standard, an abuse of discretion standard, or both is proper. (132) Alternatively, if the appellate court finds that an evidentiary issue within a rule did not confer any discretion to the trial judge, the appellate court should give less deference and apply a de novo standard of review. (133)

Although there is a great need for this type of in-depth reasoning and analysis for determining a proper standard of review for an evidentiary ruling, many courts still apply the "abuse of discretion" rubber stamp and ignore the different standards that may be more appropriate. (134) In fact, most courts are divided on which standard is the "appropriate" standard when reviewing evidentiary rulings. (135) While there may not be one correct answer in finding an appropriate standard in these instances, the reviewing court can help achieve some clarification "by explicitly pointing to the issue to be decided." (136) This can be achieved by first determining whether an evidentiary issue involves a trial judge's discretion, a factual decision, or a question of law to help illuminate the proper standard. (137)

When evidentiary issues are reviewed for an abuse of discretion, it would be a mistake to assume that the application of that standard has the same meaning in all cases. (138) Clarification on how the abuse of discretion standard is applied to evidentiary matters is still needed. (139) Clarification is also required on whether the abuse of discretion is applied or should be applied to all evidentiary rulings; in particular, the evidence rule that has created the most confusion for students, lawyers, professors, and judges for centuries: hearsay. (140) As already noted and as will be explored more below, courts reconsidering this question often create new tests or use de novo review for issues of hearsay. Before considering how courts have struggled with this issue, a brief introduction to hearsay is helpful for context.


"It is almost universally acknowledged that hearsay is less valuable than other forms of information." (141) Three primary reasons have traditionally been given for this. The reasons are that the statement was not given under oath, the statement was not given in the presence of the fact-finder so there is no opportunity to judge the demeanor of the person making the statement, and there was no opportunity for cross-examination to test such indicators like the perception, memory, narration, and sincerity of the person who made the statement. (142)

Figuring out if a statement is admissible over a hearsay objection involves multiple layers of inquiry. (143) Without going into a full and exhaustive description of the hearsay rule and its exceptions, which typically takes 200 pages of an Evidence textbook or might require a 250page supplemental study aid just to understand that one article in the Federal Rules of Evidence, the inquiry can be broken down to two simple steps: (1) is the statement hearsay by definition; and, (2) if so, does it meet any exceptions? (144) First, the trial court must determine if a statement fits the definition of hearsay. To do this, the court determines: (1) is it a statement, (2) is it a statement other than one made by the declarant while testifying at trial or hearing, and (3) is it being offered for the "truth of the matter asserted?" (145) The trial court examines many potential legal and factual issues with the help of these three questions. (146) For example, the decision of whether the statement was made out of court would seem to be a fairly straightforward fact inquiry, yet, it is not always clear if the statement "being offered for the truth of the matter asserted" is a factual decision requiring deference by an appellate court or a purely legal decision. (147)

On the one hand, the trial court is in the best position to listen to the witness explain what he or she thought the original statement meant when he or she heard it. The trial court is also capable of reviewing all of the circumstances that gave context to the statement, which calls for a clear error or abuse of discretion review. (148) Yet, on the other hand, the appellate court will often consider whether a statement fits the definition of hearsay as a legal question and will consequently perform a de novo standard of review. (149)

The rationale behind the de novo review is best explained in State v. Saucier, (150) whereby a Connecticut case embarked on the challenging state-by-state and circuit-by-circuit survey into the various standards of review used in the hearsay context:
   [W]hether a challenged statement properly may be classified as
   hearsay and whether a hearsay exception properly is identified are
   legal questions demanding plenary review. They require
   determinations about which reasonable minds may not differ; there
   is no "judgment call" by the trial court, and the trial court has
   no discretion to admit hearsay in the absence of a provision
   providing for its admissibility. (151)

In other words, many courts have decided that, because the definition of hearsay is a legal definition, the courts simply have to make legal determinations. However, as noted above and as will be seen in the cases discussed below, this oversimplifies the various levels of inquiry that go into figuring out merely if a statement even qualifies as hearsay. (152)

Second, if a statement does qualify as hearsay, the trial court must consider whether an exception applies to the hearsay statement. (153) These legal rules contain legal definitions that seem to call for legal determinations. (154) Yet most appellate courts recognize that there are certain concepts in the hearsay exceptions that require deference because of the call for the trial court's expertise, experience, and unique position to perceive witness testimony. (155) Examples of these hearsay exceptions from case law are detailed below, but one can simply look to the Federal Rules of Evidence for commonsense examples that might call for fact-finding, credibility determinations, and a trial judge's quick decision-making. (156)

Rule 803(2) of the Federal Rules of Evidence requires the judge to decide whether a statement was related to "a startling event or condition" and whether the declarant was under the stress and excitement caused by the event or condition. (157) Rule 803(3) asks whether the statement communicates the declarant's "then existing mental, emotional, or physical condition" and oftentimes requires a decision on whether the statement was one that shows "intent, plan, (or) motive. " (158) Both of these exceptions seem to require basic fact-finding and judgment calls that would traditionally be left to a trial judge.

In addition, some hearsay exceptions specifically call for a determination of credibility or "trustworthiness" such as Federal Rules of Evidence 803(6), 803(8), and 807. (159) It would be difficult to imagine how an appellate court could say that it would be in a similar or better position to make this determination of "trustworthiness" than the trial court. In these situations, deference should be owed to the decision of the court below. (160)

Therefore, if a trial court is determining whether a statement meets the definition of hearsay or whether a statement meets an exception to hearsay, the language of the rules does not provide any neat formula for whether a trial court ruling on the ultimate admissibility of the statement would involve purely factual determinations or purely legal determinations. (161) Traditionally deference is owed to a trial court on evidentiary rulings and the basic legal and factual inquiries that go into a trial court's hearsay ruling. Additionally, the approaches of the various courts regarding appellate review of hearsay rulings should be reviewed.


Before attempting to illustrate how various jurisdictions approach the standard of review in relation to hearsay, it must be emphasized that many of the state and federal appellate court judges are not entirely sure what standard is being used within their jurisdiction. (162) This point has been most recently and emphatically noted in two 2012 cases. (163) These cases from the Sixth and Ninth Circuit, United States v. Clay and Wagner v. County of Maricopa, respectively document a split in the circuits and the confusion and conflict in their own jurisdictions. (164)

A. Confusion in the Sixth and Ninth Circuits

At issue in Wagner was the question of whether a statement was properly excluded under the state of mind exception found in Rule 803(3) of the Federal Rules of Evidence. (165) Although the majority and dissenting opinions disagreed on whether the exception was met, the judges agreed on one thing: there was no clear rule on what standard of review applies to a hearsay ruling. (166) In his dissent, Judge N. Randy Smith begins his "Standard of Review" section by stating, "[t]his circuit's case law is not entirely clear regarding whether we review de novo a district court's decision that a statement is or is not hearsay." (167) In response, Judge John T. Noonan, writing for the majority, agreed and stated in the majority opinion: "[a]s Judge Smith points out, it is not entirely clear whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review." (168) The majority and dissenting opinions in Wagner together cited eight different cases from the Ninth Circuit between 1994 and 2011 that use different standards of review for this issue. (169)

Notably, the Ninth Circuit recognizes the uncertainty in this area, even though it chose not to resolve this uncertainty for future cases. (170)

The Sixth Circuit recently declared a broader uncertainty among the circuits regarding the various standards used by federal appellate courts to review hearsay rulings. (171) Judge Kethledge, in his dissent that urged appellate courts to use an abuse of discretion standard for all evidentiary rulings, noted several cases from the First, Second, Fifth, Sixth, and Ninth Circuits, which explain that either a de novo or abuse of discretion standard of review is used for hearsay rulings. (172) Not only is it significant that a federal appellate judge has pointed out that the circuits are in disagreement on this, but throughout his note and accompanying string cite, he also discloses that the Sixth and the Ninth Circuit have actually disagreed with itself on the issue. (173)

In the last two lines of the dissent, Judge Kethledge sums up the major problem by asserting the fact that there is no consensus on the proper standard of review: "[b]ut again the relevant point is that we have one panel after another disagreeing with each other as to which of these tests controls. The practical result should be intolerable. In our circuit even the most conscientious district-court judge cannot tell what the law is on this important issue." (174)
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Title Annotation:Introduction through IV.The Hearsay Rule and the Multiple Layers of Analysis A. Confusion in the Sixth and Ninth Circuits, p. 1-26
Author:Bruno, Todd J.
Publication:Suffolk Journal of Trial & Appellate Advocacy
Date:Feb 1, 2013
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