The Bill Clinton Exception to the Hearsay Rule

Author: James J. Duane


          Hearsay is usually inadmissible at a trial, although there are exceptions for certain categories of hearsay that are deemed unusually trustworthy or necessary for ascertaining the truth.  When the Federal Rules of Evidence were enacted in 1975, they contained a hearsay exception for “Statements in Ancient Documents,” applicable to almost everything written at least two decades before the trial.  It is not known who first came up with the name for this hearsay exception, but it was most likely a teenager; not many other people would describe someone or something as “ancient” merely because that person or thing is over twenty years old.

            When first enacted, this exception provided that such a document would be admissible, regardless of whether its author was still alive and available to testify, as long as it satisfied the requirements of this definition: “Statements in ancient documents.  Statements in a document in existence 20 years or more whose authenticity is established.”  Likewise, the authentication provisions of the Federal Rules state that such “ancient documents,” if twenty years old by the time of trial, could be established as authentic merely by virtue of their age, as long as their condition and location created no grounds for suspicion concerning their authenticity.

          After four decades on the books, however, this hearsay exception underwent a dramatic revision just a few years ago.  As this Article will demonstrate, the process leading to that amendment was more than a little halting and haphazard.  It included, among other novelties, the adoption of a new rule, without the benefit of public comment, after the Advisory Committee sought and obtained widespread public input on a different plan that the Committee later abandoned.  The result of this peculiar process was a new rule that no longer matches its name or its officially stated justification, and that injects an unfortunate and unprecedented degree of terminological inconsistency into the Evidence Rules.  It has left us with a new rule that now requires a new name—a rule that can be perhaps best described as “The Bill Clinton Exception to the Hearsay Rule.”

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