Volume 36:3 (Spring 2013)

Square Peg, Round Hole: Common Sense Versus Precedent in the Battle Over the Standard of Review for Hearsay Rulings


S. Bryn McDermott


Introduction: Hearsay rules have been giving law students nightmares for decades, but lately it seems that an increasing number of federal judges may be losing sleep over the topic. A long-lived circuit split regarding the standard of review for hearsay rulings has been quietly expanding. Four circuits have recently addressed the appropriate standard of review specifically for hearsay; the Second and Sixth employ de novo review, and the First and Ninth review for abuse of discretion. The topic is ripe for review by the Supreme Court in light of the accumulating, conflicting decisions. Although the split involves several different circuits, the Ninth and Sixth circuits have issued opinions creating intra-circuit inconsistencies. This Note focuses on cases out of those two appellate courts along with the Supreme Court precedent that has exacerbated the confusion.