A Short History of Hearsay Reform, with Particular Reference to Hoffman v. Palmer, Eddie Morgan and Jerry Frank

Abstract

Much of the history of the American law of evidence, including its most contentious issue, hearsay, is the story of stasis and reform. The case of Hoffman v. Palmer represents one of few cases concerning hearsay known by name, and illustrates that “false” evidence has often been used to caution against efforts proclaiming “radical reform” of the law of evidence. In this case involving a collision between a car and a train, the critical question was: Is the defendant railroad permitted to introduce into evidence the transcript of a question and answer session made two days after the accident between the engineer of the train and another railroad employee? If believed, a statement made in this session would exonerate the railroad from liability. Writing for a divided court, Judge Jerome Frank held that the absence of a motive to lie on the part of the declarant (the railroad engineer who gave the statement) was required in order for the statement to be admissible. Because such a motive could reasonably be presumed present, the engineer’s statement was therefore determined not admissible. Frank’s opinion was unanimously affirmed by the Supreme Court in an opinion written by Justice William O. Douglas. However, Edmund M. Morgan, Jr., law professor and prior member of both the Advisory Committee on the Federal Rules of Civil Procedure and the Committee on the Model Code of Evidence, vehemently disagreed with both Frank and Douglas’s opinions. Frank and Douglas’s decisions in this case, and Morgan’s opposition to the precedent those decisions set, incited considerable debate over the law of evidence and the issue of hearsay, and launched significant reform efforts. For these reasons, Hoffman v. Palmer is emblematic of the history of the American law of evidence, law reform, and the history of twentieth century American legal thought.