The Demise of the Ancient Documents Exception to the Hearsay Rule?

The federal judiciary announced the proposal to get rid of the ancient documents exception on and is accepting public comments through February. U.S. District Judge William Sessions III of Vermont, chairman of the advisory committee on evidence rules, said in a report that the foundation of the exception “has always been questionable.”

“A document does not become reliable just because it is old; and a document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20,” Sessions wrote. “The committee concluded that the exception has been tolerated because it has been used so infrequently, and usually because there is no other evidence on point.”

Liesa Richter, a professor at the University of Oklahoma College of Law who teaches evidence, applauded the proposal.

“Age is no guarantee of reliability,” Richter said. “Now that we have this flood of electronically stored information that never goes away—it doesn’t disappear ever—[there are] just so many factual assertions out there electronically that will be available for savvy lawyers to dig up and admit. I think it is a real problem and a real concern.”


Read more here.

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