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Hearsay Reform Symposium Debates Proposed Changes

BC Law professor Mark Brodin was a featured presenter at the Symposium on Hearsay Reform, part of the annual fall meeting of the Advisory Committee on the Rules of Evidence for the US federal courts held in October 2015.

Brodin presented his paper “The British Experience With Hearsay Reform—A Cautionary Tale,” which reviews the UK’s abandonment of the old common law structure of categorical exceptions and the imposition of a judicial discretion model. Brodin spoke about the lessons the United States might draw from that experience, particularly in reference to the criminal defendant’s right to confront his accusers.

The Advisory Committee is considering proposals for changes to the hearsay rules, and the symposium was designed to assist the Committee in its deliberations.

Symposium presenters included academics in the field of evidence, federal judges—including Richard Posner of the US Court of Appeals for the Seventh Circuit, an advocate for changes to the hearsay rules—as well as civil litigators, criminal defense lawyers, and public defenders. The morning session, open to the public, was followed by the annual fall meeting of the Committee to discuss the proposed changes.

The Advisory Committee on the Rules of Evidence is one of five advisory rules committees under the Federal Judicial Conference Committee on Rules of Practice and Procedure, which govern the conduct of trials, appeals, and cases under Title 11 of the United States Code. BC Law professor Daniel Coquillette, the Monan University Professor of Law at Boston College, was present at the symposium in his role as the Reporter to the Federal Judicial Conference. Coquillette is the longest-running Reporter in the Committee’s history. He was originally appointed to the role by Chief Justice Warren Burger, and then reappointed by Chief Justices Rehnquist and Roberts.

“The federal rules process, under the Rules Enabling Act, remains one of the most effective law reform vehicles in the United States today, with high credibility for a nonpartisan approach to a “level playing field” for all litigants,” Coquillette said. “This important conference was another example of the mission of the federal rules committees to meet their Congressional mandate to constantly reexamine the federal rules to ensure the best possible system of federal justice.”

Any proposed rule changes would be submitted to the Federal Judicial Conference, and if approved would be sent to the US Supreme Court, and then on to Congress.

The Advisory Committee’s proceedings at John Marshall, including Brodin’s paper, will be published in an upcoming issue of the Fordham Law Review.

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