Indiana Law Review


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

Jerry Frank

Michael Ariens*

"Few historians, however, hold themselves out as fictionists."

Jerome Frank, The Place ofthe Expert in a Democratic Society
1

True, no man can be wholly apart from his fellows. But, if each of us is a
promontory, yet the promontory reaches out beyond the social mainland to a

point where others cannot intrude. ... It is a no-other-man's land, for others

can't penetrate it, can't communicate with it.

Jerome Frank, Judge Learned Hand1

Introduction

On my summer vacation, I chanced upon the novel Foe by the South African writer
J.M. Coetzee.

3 Foe is a modern reworking of Daniel Defoe's Robinson Crusoe. In this

modern retelling, Coetzee presents the story of the relation of author and subject, not the

story of the adventures of a shipwrecked Englishman. In Foe, the authorial voice is that

of Susan Barton, a castaway who ended up on the same island as Cruso and Friday. She,

Cruso and Friday are "rescued" and taken by ship to England. En route, Cruso dies.

Once in London, Susan Barton takes her story of Cruso and Friday to Daniel Foe, and

finds that his interest is more in the story of her life and less in the story of Cruso 's

adventures. Foe, chased by creditors, flees his house, into which Barton and Friday move.

Barton later leaves, searching for Foe, whom she finally tracks down. Confronting Foe,
she says, "I am not a story, Mr. Foe."4 Then, after embracing a young woman who also
calls herself Susan Barton and claims to be her daughter, a claim denied by our narrator,

she continues:

In the beginning I thought I would tell you the story of the island and, being

done with that, return to my former life. But now all my life grows to be story
and there is nothing of my own left to me. I thought I was myself and this girl
a creature from another order speaking words you made up for her. But now I
am full of doubt. Nothing is left to me but doubt. I am doubt itself. Who is
speaking me? Am I a phantom too? To what order do I belong? And you: who
are you?

5

* Professor, St. Mary's University School of Law, San Antonio, Texas. Permission to quote from

the Edmund M. Morgan Papers at the Harvard Law School Library was kindly given by Harvard Law School

Archivist David de Lorenzo, whose assistance on this and other projects is here gratefully acknowledged.

1

.

Jerome Frank, The Place ofthe Expert in a Democratic Society, reprinted in A Man's Reach: The
Philosophy of Judge Jerome Frank 31 (Barbara Frank Kristein ed., 1965).

2. Jerome Frank, Judge Learned Hand, reprinted in A MAN'S REACH: THE PHILOSOPHY OF JUDGE

Jerome Frank 49 (Barbara Frank Kristein ed., 1965).

3. J.M. Coetzee, Foe (1987).

4. Id. at 131.

5. Mat 133.



184 INDIANA LAW REVIEW [Vol. 28:183

My story is about the history ofhearsay (and, more broadly, evidentiary) reform. My
story more particularly is about a case involving two major figures in American law. For

evidence scholars, the case of Palmer v. Hoffman
6
represents one of a few cases

concerning hearsay known by name.7 The two major figures are Jerome N. Frank and
Edmund M. Morgan, Jr., whose stories I have both appropriated, and, I hope, treated with
honor and respect.

Jerome Frank remains well known in legal academia as a symbol of American legal
realism during the interwar years. His 1930 book, Law and the Modern Mind, 8 became
one of the foremost works of legal realism. Frank's work and influence in American law

and legal thought has been the subject of several books,
9
and his influence on American

legal thought is a prominent feature ofrecent works on the history of American law.
10

In

contrast, although Morgan was an important figure in the history of legal reform and the

professionalization of legal education, he is remembered today only by evidence and

procedure scholars.
11 Even here, his influence has been undervalued. I2

6. 3 1 8 U.S. 1 09 ( 1 943), ajfg Hoffman v. Palmer, 1 29 F.2d 976 (2d Cir. 1 942). Because the plaintiff

Hoffman was successful in the Second Circuit, the defendant Palmer, a trustee of the railroad, was the petitioner

before the Supreme Court and thus the first named party. My interest, however, is in the Second Circuit

decision, not the decision of the Supreme Court.

7. Others include the English case of Wright v. Doe d. Tatham, 7 Ad. & E. 3 1 3, 1 1 2 Eng. Rep. 488

(1 837) (defining hearsay in broad terms, thus extending the reach of the rule); Shepard v. United States, 290 U.S.

96 (1933) (holding inadmissible as a dying declaration a statement by defendant's deceased wife shortly before

she died that "Dr. Shepard has poisoned me."); Donnelly v. United States, 228 U.S. 243 (1913) (holding

inadmissible to prove defendant's innocence to murder charge a confession by another, deceased at the time of

trial); and Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892) (holding admissible as exception to hearsay rule

letter written by Adolph Walters concerning his future travel plans with plaintiffs allegedly deceased husband

to show Walters, and not plaintiffs husband, was the decedent).

8. Jerome Frank, Law and the Modern Mind ( 1 930). This book went through 6 printings by 1 948,

and in 1985 was reprinted in the Legal Classics series.

9. Julius Paul, The Legal Realism of Jerome N. Frank ( 1 959); J. Mitchell Rosenberg, Jerome

Frank: Jurist and Philosopher (1970); Walter E. Volkomer, The Passionate Liberal: The Political

and Legal Ideas of Jerome Frank (1970); Robert Jerome Glennon, The Iconoclast as Reformer:

Jerome Frank's Impact on American Law (1985). Interestingly, none of these works is a biography.

Although the milestones of Frank's life are briefly noted, it is Frank's work that is analyzed, not his life. This

is somewhat surprising given Frank's view of the importance of understanding a judge's personality in order

to understand the legal process. A collection of Frank's writings is A Man's Reach: The Philosophy of

Judge Jerome Frank (Barbara Frank Kristein ed., 1965). A bibliography of articles about and memorial

tributes to Jerome Frank is found in Marvin Schick, Learned Hand's Court 362-63 (1970). See also J.

Mitchell Rosenberg, Frank, Jerome, in DICTIONARY OF AMERICAN BIOGRAPHY 1956-60, at 21 5 (John A. Garraty

ed., Supp. VI 1980).

1 0. Bernard Schwartz, Main Currents in American Legal Thought 482-9 1 ( 1 993); Morton

J. Horwitz, The Transformation of American Law: 1870-1960 at 175-79(1992). See generally Kermit

L. Hall, The Magic Mirror: Law in American History 270-71 (1989); Lawrence M. Friedman, A

HISTORY OF AMERICAN Law 688, 692 (2d ed. 1985). See also Neil Duxbury, Jerome Frank and the Legacy of

Realism, I8J.L.&S0CY 175(1991).

1 1

.

One example ofthe fact that Morgan is undeservedly forgotten is the absence of an entry on Morgan



1 995] HEARSAY REFORM 1 85

The issue in the case ofHoffman v. Palmer was relatively simple: In a case involving

a collision between a car and a train, was 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 employee of the railroad? If

believed, this statement exonerated the railroad from liability. Although a federal statute
13

enacted in 1936 appeared to permit (and maybe even require) the trial court to admit the

statement, the court excluded the statement. On appeal, writing for a divided court, Judge
Jerome Frank held that the statute implicitly required the absence of a motive to lie on the

part of the declarant (the railroad engineer who gave the statement) in order for the
statement to be admissible. His opinion was unanimously affirmed by the Supreme Court

in an opinion written by Justice William O. Douglas.
14 Morgan vehemently disagreed

with both Frank and Douglas's opinions. Hoffman v. Palmer is emblematic of the history

of the American law of evidence, of law reform, and, because of the people involved, of

the history of twentieth century American legal thought.

I. The Idea of Hearsay Reform

Much of the history of the American law of evidence, including its most contentious
(and difficult) issue, hearsay, is the story of stasis and reform. In 1810, the first compiler

of the American law of evidence, Zephaniah Swift, wrote:

For a long time, the rules of evidence were uncertain, and contradictory, and in

some instances, were not adapted to the discovery of truth. But, by a course of

modern decisions, founded on the most liberal principles of policy, they are

reduced to a precision, and certainty, susceptible of little further improvement,

in the Dictionary ofAmerican Biography. A second example is the absence of Morgan's name from any of the

four books cited in supra note 1 0.

1 2. I have written a history ofthe codification ofthe American law of evidence in which Morgan plays

a central role. Michael Ariens, Progress Is Our Only Product: Legal Reform and the Codification ofEvidence,

1 7 Law & SOC INQ. 213(1 992). Although I am indebted to his excellent work, I am convinced that a prominent
historian of evidence, William Twining, has marginalized Morgan's role in his study of the "Anglo-American"

history of evidence. See generally William Twining, Theories of Evidence: Bentham and Wigmore

(1985).

13. 28 U.S.C. §695(1936):

Admissibility. In any court of the United States and in any court established by Act of Congress,

any writing or record, whether in the form of an entry in a book or otherwise, made as a

memorandum or record of any act, transaction, occurrence, or event, shall be admissible as

evidence of said act, transaction, occurrence, or event, if it shall appear that it was made in the

regular course of any business, and that it was the regular course of such business to make such

memorandum or record at the time of such act, transaction, occurrence, or event or within a

reasonable time thereafter. All other circumstances of the making of such writing or record,

including lack of personal knowledge by the entrant or maker, may be shown to affect its weight,

but they shall not affect its admissibility. The term "business" shall include business, profession,

occupation, and calling of every kind.

14. 318 U.S. 109(1943).



1 86 INDIANA LAW REVIEW [Vol. 28: 1 83

and may now be considered as placed on a basis, that will endure as long as truth
and justice shall be revered.

15

Thirty years later, Harvard Law School Professor Simon Greenleaf16 published the
first volume of his three-volume Treatise on the Law ofEvidence. At the close of this
volume, Greenleaf wrote:

The student will not fail to observe the symmetry and beauty of this branch

of the law, under whatever disadvantages it may labor from the manner of
treatment; and will rise from the study of its principles, convinced, with Lord

Erskine, that "they are founded in the charities of religion—in the philosophy of
nature—in the truths of history—and in the experience of common life." 17

Ofthis first major American evidence treatise, Charles Sumner wrote, "[Greenleafs] aim
has been to expound the law as it is, and not to enter into the entangled discussion of the

various questions of its reform."
18 One area in which "the law as it is" was not to be

disturbed was hearsay. In Greenleafs view, "considerations of public interest and

convenience" "are considerations of too grave a character to be overlooked by the court

or the legislature" to change the rule.
19

Possibly because this work attempted merely to

"expound the law as it is," Greenleafs Treatise was enormously successful, going through

sixteen editions, the last published in 1 899 under the partial editorship of John Henry

Wigmore.

The most prominent proponent of evidentiary reform during the antebellum era was

John Appleton,
20

later a Supreme Court justice in the state of Maine. Appleton's essays,

most of which were written in the 1830s, roundly criticized the rules of evidence for

hampering the search for the truth. When Appleton's articles were collected and printed
in book form in I860,

21
he claimed in the Preface that rules of evidence designed to

protect themselves by "knaves and criminals great and small" could not "have materially

improved upon the existent law."
22 Among the rules of greatest concern to Appleton were

1 5

.

Zephaniah Swift, A Digest of the Law of Evidence, in Civil and Criminal Cases x ( 1 8 1

Arnorepr. 1972).

16. On Greenleaf, see H.W. Howard Knott, Greenleaf, Simon, in 7 Dictionary of American

Biography 583 (Allen Johnson & Dumas Malone eds., 1931); Charles Warren, 1 History of the Harvard
Law School and of Early Legal Conditions in America 480-543 (1908); 2 id. at 1-46; The Centennial

History of the Harvard Law School, 1 8 1 7- 1 9 1 7 at 2 1 5- 1 9 ( 1 9 1 8). Professor Alfred Konefsky is writing

a biography of Greenleaf.

1 7. Simon Greenleaf, 1 A Treatise on the Law of Evidence § 584 (1 842) (footnote omitted).

1 8. Charles Sumner, Greenleafon Evidence, 27 Am. JURIST & L. Mag. 379, 388 (July 1 842).
19. Greenleaf, supra note 17, at § 124.

20. On Appleton, see David M. Gold, The Shaping of Nineteenth-Century Law: John Appleton

and Responsible Individualism (1990), a study of Appleton's work. A fond personal reminiscence by

Charles Hamlin is found in John Appleton, 5 Great AMERICAN LAWYERS 4 1 (William Draper Lewis ed., 1 908).

See also Robert Hale, Appleton, John, in 1 DICTIONARY OF AMERICAN BIOGRAPHY 328 (Allen Johnson ed.,

1928).

2 1

.

John Appleton, The Rules of Evidence Stated and Discussed ( 1 860).

22. Id. at 9-10.



1995] HEARSAY REFORM 187

the rules excluding as incompetent witnesses interested parties and atheists.
23

Also of

concern were the rules protecting privileged communications.
24

Appleton later turned to

the rules regulating hearsay.
25

In an article titled Hearsay Evidence, Appleton made a

case for the admission ofhearsay evidence if the declarant was dead.
26

Although hearsay

is "an inferior species of evidence," "when the witness is dead, his declarations in

whatsoever form attainable should be received."
27

After Appleton's essays were reprinted

in book form, two of the handful of reviews, while praising the work, deemed some of

Appleton's proposed reforms "radical."
28

Both Appleton and defenders of the rules of evidence in nineteenth century America

believed the goal of the rules was to produce the truth. At his retirement dinner in 1883,

Appleton stated his view of the role of the judge:

He should seek for the truth. He should present facts as they exist. . . . [H]e
would be derelict of his duty if he omitted to clearly state to them the evidence

and its bearings on the rights of parties—thus aiding the jury in arriving at the

truth. One side of every litigation is in the right and the other in the wrong.29

Whether one accepted or disparaged the current state of the law of evidence, the rules of

evidence were based on the premise that the trier of fact (usually a jury) was to hear

evidence which allowed it to determine what really happened.

In 1898, Harvard Law School Professor James Bradley Thayer's book, A Preliminary
Treatise on the Law ofEvidence, was published. In his Treatise, Thayer preached that
because of the manner in which the rules of evidence were created and developed, "there

has resulted plenty of confusion."
30 The "greatest obstacle to be overcome"31 in the

23. John Appleton, Incompetency ofParties as Witnesses at Common Law, 8 AM. JURIST & L. MAG.
5 (July 1 832); John Appleton, Incompetency ofWitnessesfrom Interest, 6 AM. JURIST & L. Mag. 1 8 (July 1 83 1 );
John Appleton, Incompetency oj Witnessesfrom Infamy of Character, 5 AM. JURIST & L. MAG. 101 (Jan. 1831);
John Appleton, OfIncompetency of Witnesses on account ofReligious Opinion, 4 AM. JURIST & L. MAG. 286
(Oct. 1830).

24. John Appleton, Attorney and Client, 1 7 Am. Jurist & L. Mag. 304 (July 1 837); John Appleton,
The Admission ofHusband and Wife, 15 AM. JURIST & L. MAG. 274 (July 1836).

25. John Appleton, Hearsay Evidence and Confessions or Admissions ofthe Party, 20 AM. JURIST &
L. MAG. 68 (Oct. 1838); John Appleton, Hearsay Evidence, 24 AM. JURIST & L. MAG. 118 (Oct. 1840)
[hereinafter "Hearsay Evidence"].

26. Hearsay Evidence, supra note 25.

27. Hearsay Evidence, supra note 25, at 1 20-2 1

.

28. Review ofCurrent Literature, 70 CHRISTIAN EXAM. 1 50, 1 5 1 -52 (Jan. 1 86 1 ) ("Judge Appleton rests

his argument on the very startling and radical proposition—which the reader will find assumed on every
page—that the object ofevidence is to get atfacts "); 24 Monthly L. Rptr. 450 (May 1 862) ("While there
are now, probably, few persons who would assent to all of his conclusions—some of which are, in a legal sense,
extremely radical . . . .").

29. Hamlin, supra note 20, at 77 (quoting retirement speech of Chief Justice John Appleton).

30. James Bradley Thayer, A Preliminary Treatise on the Law of Evidence 4 (1 898). On
Thayer, see Samuel Williston, Thayer, James Bradley, in 1 8 DICTIONARY OF AMERICAN BIOGRAPHY 405

(Dumas Malone ed., 1936); James Parker Hall, James Bradley Thayer, in 8 GREAT AMERICAN LAWYERS 343

(William Draper Lewis ed., 1909); James Bradley Thayer, 15 Harv. L. Rev. 599 (1902). See also Jay Hook,



1 88 INDIANA LAW REVIEW [Vol. 28: 1 83

reform of the law of evidence were lawyers. However, by emulating the statutory reform

of civil procedure in Massachusetts, legislative reform of the law of evidence was
possible.

32
If the law of evidence were to be reformed, the result should be that "[w]e

should have a system of evidence simple, aiming straight at the substance ofjustice, not

nice or refined in its details, not too rigid, easily grasped and easily applied."33

Thayer briefly considered the problem ofhearsay in the final chapter of the Treatise.

For Thayer, "[a] true analysis would probably restate the law so as to make what we call
the hearsay rule the exception, and make our main rule this, namely, that whatsoever is
relevant is admissible."

34
In 1898, the Massachusetts legislature, at Thayer's behest,

passed an act barring hearsay objections to declarations made by a "deceased person" "if

it appears to the satisfaction of the judge to have been made in good faith before the
beginning of the suit and upon the personal knowledge of the declarant."35

Then, in 1904-05, Thayer's former student and friend, John Henry Wigmore,

published his four-volume Treatise on Evidence?
6

Wigmore's work was one of

conservative reform. "That our law of Evidence can be improved upon, no one doubts.

That the improvement must be gradual, yet unremitting, is equally certain . . . ,"
37

Like

A BriefLife ofJames Bradley Thayer, 88 Nw. U. L. REV. 1 (1993). Hook is currently working on a biography

of Thayer.

3 1

.

Thayer, supra note 30, at 532.

32. THAYER, supra note 30, at 532-533. Thayer approvingly judged this reform as "a careful but radical

change." THAYER, supra note 30, at 533.

33. Thayer, supra note 30, at 529.

34. Thayer, supra note 30, at 522.

35. 1898 Mass. Acts ch. 535:

No declaration of a deceased person shall be excluded as evidence on the ground of its being

hearsay if it apears to the satisfaction of the judge to have been made in good faith before the

beginning of the suit and upon the personal knowledge of the declarant.

This act was later amended to read:

A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the

court finds that it was made in good faith before the commencement of the action and upon the

personal knowledge of the declarant.

Mass. Gen. L. ch. 233, § 65 (Mass Ter. ed. 1932).

John Appleton suggested a similar revision of the rule against hearsay in his 1 840 article. See Hearsay

Evidence, supra note 25, at 120-21.

36. John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law

(4 vols. 1904-05) [hereinafter Treatise I]. On Wigmore, see William R. Roalfe, John Henry Wigmore:

Scholar and REFORMER (1977); Stephen Botein, Wigmore, John Henry, in DICTIONARY OF AMERICAN

BIOGRAPHY 1941-45 at 820 (Edward T. James ed., Supp. Ill 1973); John Henry Wigmore, 38 III. L. Rev. 1

(1943); John Henry Wigmore: A Centennial Tribute, 58 Nw. U. L. REV. 443 (1963).

37. 1 TREATISE, supra note 36 at xii. See also JOHN HENRY WIGMORE, A TREATISE ON THE SYSTEM

of Evidence in Trials at Common Law at § 8c (2d ed. 1923) [hereinafter Treatise II]. ("Our system of

evidence is sound on the whole"). Wigmore seemed pained by the accusation that "the rules of Evidence, over

and above all others have come to bear, even within the profession itself, the stigma of technical arbitrariness

and obstructive unreason." Treatise I, supra note 36, at vii-viii. For Wigmore, this was not true: "The rules

of Evidence, as recorded in our law, may be said to be essentially rational." Treatise I, supra note 36, at viii.



1 995] HEARSAY REFORM 1 89

Appleton's earlier effort for evidentiary reform, Wigmore's Treatise focused on the

relation between the rules of evidence and the search for the truth. "What the law of

Evidence, and of Procedure, nowadays most needs is that the men who are our judges and
our lawyers shall firmly dispose themselves to get at the truth and the merits of the case

before them."
38

Unlike Appleton, Wigmore noted that this relation was hampered by the

professional inclination to appeal evidentiary issues rulings on evidence. "The partisan

spirit of the bar, contesting desperately on each trifle, and the unjust doctrine ofnew trials,

tempting counsel to push up to the appellate courts upon every ruling of evidence,

increased this tendency."
39 By 1908, however, Wigmore had concluded that only the

opinion rule, which barred witnesses other than experts from testifying to "opinions"

instead of "facts," was "radically discreditable."
40

For evidence progressives like Thayer and Wigmore, the prospect of reform faced

several hurdles. Although the era of the great court lawyer as symbol of the lawyer as

professional was coming to a close by the beginning of the twentieth century, the era's

ethos of the sporting theory ofjustice predominated.
41

Progressives also believed reform

efforts were blocked by incompetent and often corrupt state legislatures and local trial

judges.

Until his death in 1943, Wigmore was the brooding omnipresence of the law of

evidence. Any effort to reform the law of evidence needed to pass Wigmore's muster if
it were to have any chance ofjudicial or legislative acceptance. Even with his blessing,

prospects for reforming the law of evidence were severely limited by professional inertia

and complacence.

The first major effort to reform the law of evidence began in 1920. A Legal Research
Committee sponsored by the Commonwealth Fund appointed a Committee to Propose

Specific Reforms in the Law of Evidence. The chairman ofthe Evidence Committee was
Edmund M. Morgan, then a professor at Yale Law School. The report was finally
published in 1 927, and did not propose a model code of evidence, because, according to

the Committee, "[o]ur system of evidence is sound on the whole."
42

Instead, the

38. Wigmore, Code of Evidence at xiii (2d ed. 1 935).

39. 1 TREATISE I, supra note 36, at § 8. Wigmore was echoing a comment made by Thayer in his

Treatise: "In our own administration of the law of evidence too many abuses are allowed, and the power of the

courts is far too little exercised in controlling the eager lawyer in his endeavors to press to an extreme the

application of the rules." The result was that the American judicial process tended "thus to foster delay and

chicane." THAYER, supra note 30 at 528-29. Two years after Wigmore's book was published, Roscoe Pound,

then Dean at the University of Nebraska Law School, excoriated the profession at the annual meeting of the

American Bar Association for its attachment to the "sporting theory ofjustice." Roscoe Pound, The Causes of

Popular Dissatisfaction in the Administration ofJustice, 29 A.B.A. REP. 395, 405 (1906), and cited Wigmore

for the proposition that this view inaccurately depicted the adversary system. The next year Wigmore hired

Pound to teach at Northwestern. He also returned the favor, approvingly citing Pound's speech as "diagnosing"

the causes of the defects of American procedural law, including the law of evidence. Wigmore, SUPP. to

Treatise v/7 (1908).

40. Wigmore, Supp. to Treatise vi.

41

.

I have discussed this change in the professional elite in Michael Ariens, Know the Law: A History

ofLegal Specialization, 45 S.C. L. Rev. 1 103 (1994). See also supra note 39.

42. Edmund M. Morgan, et al. , The Law of Evidence: Some Proposals for Its Reform xii n. 1



1 90 INDIANA LAW REVIEW [Vol. 28: 1 83

Committee's report contained five specific proposals, including two proposals to admit

statements otherwise excluded by the rule barring hearsay evidence. The first permitted
the introduction of a hearsay statement if made by a person who died before the trial. This
reform proposal was based on a Massachusetts law enacted in 1898.43 The second was

a proposal to liberalize the admission ofbusiness records, otherwise classified as hearsay

statements.
44

This latter proposal was enacted the next year in New York.45 In 1930, in Johnson
v. Lutz*

6
the New York Court of Appeals concluded that a police report of an accident,

which included statements made to the officer by bystanders, who may not have had
personal knowledge of the accident, was not within the operation of the Act because those

bystanders were under no duty to make any statement to the officer. On June 20, 1936,
based on a four-page report from the Senate Judiciary Committee

47
and without any

recorded debate, Congress passed the Commonwealth Fund Evidence Committee's

proposal concerning business records.
48

Two additional evidentiary reform efforts were undertaken in the 1930s. The first
was an effort led by Wigmore under the auspices of the American Bar Association.49

Among the twenty specific proposals made by the ABA Committee on Improvements in
the Law of Evidence was a proposal to amend the common law rule concerning the
admissibility ofbusiness records as an exception to the hearsay rule.

50
Additionally, the

Committee recommended adoption of the "Massachusetts" rule permitting the

introduction ofhearsay statements made by persons who had died by the time of the trial,
as long as the statements were made in good faith before the controversy arose.51

However, the Committee noted "a probable lack of united professional support for any

radical, or even any substantial changes."
52

(1927). This language constituted Wigmore's opinion, and was actually taken from a statement of his in his

Treatise. See Treatise II, supra note 37, at § 8c.

43. MORGAN, supra note 42, at 37-49.

44. MORGAN, supra note 42, at 5 1 -63.

45. 1928 N.Y. Laws, ch. 532. This law was codified as § 374-a of the Civil Practice Code of New

York.

46. 170 N.E. 517 (N.Y. 1930).

47. Senate Judiciary Committee Report, Admissibility in Evidence of Certain Writings and

Records, 74th Cong., 2d Sess., Rep. No. 1965, April 24, 1936 [hereinafter Committee Report].

48. 28 U.S.C. § 695.

49. Report of the Committee on Improvements in the Law ofEvidence, 63 A.B.A. Rep. 570 (1938)

[hereinafter Report].

50. Id. at 582-83. This was the second of twenty proposals offered. The Committee preferred the

adoption ofthe Uniform Laws Conference Draft of 1936, because it was an "improvement" ofthe language used

in the Commonwealth Fund reform proposal, but recommended both proposals, as well as a a third proposal by

a Northwestern University Law School student, Roscoe L. Barrow, in a 1937 article. See Roscoe L. Barrow,

Comment, Business Entries Before the Court, 32 ILL. L. REV. 334 (1937).

5 1

.

Report, supra note 49, at 584-85.

52. Report, supra note 49, at 570.



1 995] HEARSAY REFORM 1 9

1

The second and most thorough effort to reform the law of evidence was the American

Law Institute's Model Code of Evidence.53 The Institute's reporter was Morgan, whose
reputation in the field of evidence was second only to Wigmore's. Unlike Wigmore,

Morgan was not content to draft a code embracing incremental reform. In the first of four

articles published in the American Bar Association Journal concerning the Model Code

of Evidence, Morgan declared, "It is time, too, for the radical reformation of the law of

evidence."
54 Much of the radical reformation of the law of evidence consisted in giving

greater discretion to trial judges to admit or exclude evidence. In Morgan's view,

however, the most "radical" provision concerned reform of hearsay.
55 The Code

specifically proposed the adoption of a broad hearsay exception for business records
56
and

an exception admitting hearsay statements made by persons no longer alive at the time of

trial.
57

At the same time the American Law Institute formally approved the Model Code
of Evidence,

58
Judge Jerome Frank was authoring an opinion that would assist in halting

the efforts to promote evidentiary reform.

II. The Origins of Hoffman v. Palmer

On Christmas Day, 1940, at about 3:15 p.m., newlyweds59 Howard Hoffman, a
twenty-four-year old graduate of Rensselaer Polytechnic Institute (RPI) and recently

employed construction engineer, and his twenty-three-year old wife Inez T. Spraker

Hoffman, a Vassar graduate, began their trip back home to Hartford, Connecticut from the

home of Inez's parents in Cooperstown, New York. On Route 41 in West Stockbridge,
Massachusetts, at about 6:10 p.m., on a "dark, pitch black"

60
yet "clear"

61
night, a Ford

coupe, driven by Howard, collided with a train of the New York, New Haven, and

53. Model Code of Evidence (1942).

54. Edmund M. Morgan, Jr., The Code ofEvidence Proposed by the American Law Institute, 27 A.B.A.

J. 539, 540 (Sept. 1941). This was the first of four consecutively published articles with the same title. See also

Edmund M. Morgan, Foreword to Model Code OF Evidence 6 (1942).

55. See Morgan, Code ofEvidence, supra note 54, at 595 ("Consequently it is in the chapter on Hearsay

that the code departs most widely from the common law."); Charles T. McCormick, The New Code ofEvidence

ofthe American Law Institute, 20 TEX. L. REV. 661, 671 (1942) ("The draftsman [Morgan] describes Rule 503

as the most radical departure from the common law in the whole Code.") (footnote omitted).

56. Model Code of Evidence Rule 5 1 4.

57. Model Code of Evidence Rule 503(a).

58. 19 A.L.I. PROC. 74, 257 (1942).

59. According to the complaint, the Hoffmans were married on August 10, 1940. Hoffman v. Palmer,

Record at 12; Complaint at 9 [hereinafter Record] (on file with author). This, along with the following

statements of Howard Hoffman's testimony and the testimony of the other witnesses, is taken from the record

filed in Hoffman v. Palmer, United States Court of Appeals for the Second Circuit and from the Brief for

Plaintiff-Appellee and Brief for Appellants (on file with author). The original record of the case is retained at

the National Archives-Northeast Region, and a printed Transcript ofRecord to the Supreme Court (Palmer v.

Hoffman, No. 300, October Term 1942) is also available on microfiche.

60. Brief for Plaintiff-Appellee at 3; Record, supra note 59, at 49 (testimony of Howard Hoffman that

it was "pitch black" at the time of the accident).

61. Record, supra note 59, at 215 (testimony ofNorma Mary Gennari); Brief for Appellants at 4.



192 INDIANA LAW REVIEW [Vol. 28:183

Hartford Railroad Company. Inez died, and Howard was "severely and permanently"62

injured.

Howard Hoffman filed suit in the United States District Court for the Eastern District
ofNew York, claiming residence in "the Borough of Brooklyn, County of Kings, City and
State ofNew York."63 The railroad was incorporated in Connecticut, and maintained its
principal office in New Haven, which created diversity of citizenship between the
parties.

64
Because the railroad was bankrupt and undergoing reorganization in federal

district court in Connecticut, Hoffman obtained permission to file suit against Howard S.
Palmer, Henry B. Sawyer and James Lee Loomis, all trustees of the Railroad.65 Hoffman

alleged on his own behalf and as administrator for the estate of his wife that the railroad
violated its statutory duty of care under Massachusetts law as well as its common law duty
of care.

66

Hoffman testified that he came to a stop fifteen to twenty feet from the Elkey-

Buckley railroad crossing, looked both ways, and saw no light and heard no bell. He then
started up in first gear, travelling between three and five miles per hour as he approached

the grade crossing. As he was just about over the near rail, he saw a dark mass closely
approaching from his left. He still saw no light. The next thing he knew, he was a patient
at the Pittsfield, Massachusetts hospital.

67 To prove that no light was at the head of the

train and that no warning sound by bell or whistle was made, Hoffman's counsel called

several other witnesses. A car driven by Laurence Bona and including as passengers his
wife Lillian and his siblings Arthur and Edna was on Route 41 travelling the opposite

direction from the Hoffmans. Because they had seen "a" train go by three-fourths of a

mile southeast of the crossing where the accident took place, the Bonas all testified that

they knew a train might be coming. They heard no bells or whistles as they approached

the crossing. Arthur heard a crash and Laurence was the first person to reach the

Hoffmans after the accident. The other witness for the plaintiff, Norma Gennari, testified

62. According to the complaint, his injuries included "a compound comminuted fracture of the right

leg[,] . . . comminuted fracture of the left femur," several lacerations on his head and face, a concussion and a

two inch puncture ofthe right femur. Record, supra note 59, at 6; Complaint at 3. In testimony, Hoffman stated

that he remained in the hospital from the time of the accident until the end of May 1942, a six month period.

Record, supra note 59, at 56-58.

63. Record, supra note 59, at 4; Complaint at 4. At the trial, Hoffman stated that he was temporarily

residing in Troy, New York, taking graduate engineering classes at RPI, but continued to claim permanent

residence in Brooklyn. Records at the Alumni Office at RPI indicate that Hoffman never received a master's

degree. Hoffman died on May 18, 1982.

64. Record, supra note 59, at 19; Answer at 1. If Hoffman had continued to maintain his residence in

Hartford, as it was before the accident, the case could not have been filed in federal court.

65. For simplicity's sake, I will refer to defendants as "the railroad."

66. That civil cases are resolved much more slowly today than in the past is indicated by the speed with

which this case was concluded. Suit was filed on July 17, 1941 , and final judgment was rendered on November

25, 1941. The opinion of the United States Court of Appeals for the Second Circuit was released on June 23,

1 942 (an amended opinion was released on July 31,1 942), and the Supreme Court decided the case on February

1 , 1 943. If you're counting, that means that the entire case, from filing to judgment by the Supreme Court, took

just slightly more than 1 8 months.

67. Record, supra note 59, at 49-55.



1 995] HEARSAY REFORM 1 93

that as she walked home that evening, about 600 feet from the site of the accident, she
heard no whistle or bell, but did hear the crash.

The train, consisting of an engine with a tender and a caboose, was backing up. The

caboose was attached to the nose of the engine. Thus, the tender of the engine was the

"front" of the train, and was the first part of the train to cross the Elkey-Buckley

intersection.

The Railroad claimed its agents acted with due care and asserted that Hoffman was

contributorily negligent. To prove a whistle blew and a bell sounded, the defense offered

the testimony of the conductor, a brakeman and flagman riding in the caboose, the sister

and brother of the conductor, and five other witnesses.
68 The defense also offered the

testimony of Harry Meach, the fireman, who testified he saw the Hoffman's car approach
the crossing, slow down about eighteen to twenty feet from the crossing, and then speed

up as the head of the tender arrived at the crossing.
69 Meach did not see the tender hit the

car, turning his head "so that I couldn't see what happened when we got by. I didn't care
to witness it, in other words."

70
Additionally, Norma Gennari testified that the coupe was

travelling between thirty and thirty-five miles per hour when it disappeared from her view.

The defendant noted that the point at which the coupe would have disappeared from

Norma Gennari 's view was between twenty and seventy feet from the railroad track.71

The Railroad also offered testimony regarding inconsistent statements made by the Bonas

and Norma Gennari that cast doubt on whether they had not heard a whistle or bell,72 as

well as a statement by Laurence Bona in which he described his encounter with Hoffman

in the hospital after the accident. Bona claimed that "[Hoffman] said he stopped for the

crossing and what he saw was the back of the train. He thought the train was gone by and

he started up and it hit him and that is all he could remember. He was in tough shape."73

At trial, Bona denied making this statement.
74

The Railroad argued that Hoffman had mistakenly believed the "front" of the train,

that is, the tender, was actually the "end" of the train. The mistake led him to think the

train had crossed the intersection when it had actually just entered the intersection. The

jury evidently disagreed with the Railroad's theory of the case, finding for the plaintiff in

both his individual and administrative capacities.
75 On November 25, 1941, an order was

entered granting judgment to Howard Hoffman in the amount of $25,077.35 and to him

68. See generally Record, supra note 59, at 263-421 . Two of those witnesses, the engineer's widow

Bertha McDermott, and her son's friend, Francis James Hoerman, testified more about the engineer's actions

before coming upon the Elkey-Buckley intersection than what happened as the train approached the intersection.

A sixth defense witness, fifteen-year old Amenio Selva, testified that he saw a light but heard no whistle from

his vantage point about 1500 feet from the crossing. Record, supra note 59, at 396-400.

69. See Record, supra note 59, at 329-53.

70. Record, supra note 59, at 339.

7 1

.

Brief for Appellants, supra note 59, at 7.

72. Record, supra note 59, at 373-80; 409- 1 0.

73. Record, supra note 59, at 376 (testimony of stenographer Henry R. Hunt).

74. Record, supra note 59, at 1 1 6- 1 7.

75. Record, supra note 59, at 441

.



1 94 INDIANA LAW REVIEW [Vol. 28: 1 83

as the Administrator of the estate of Inez in the amount of $9000.
76

The Railroad
appealed.

On appeal, the Railroad listed four errors. One claimed error was placing the burden
of proof of contributory negligence on the defendant. The other three claimed errors

were evidentiary. In order, the claimed errors included: (1) the refusal of the trial court

to permit the testimony, on direct examination, of the observations of a defense witness

concerning the line of sight at the Elkey-Buckley crossing; (2) the exclusion of an

interview of the engineer of the train, Harold McDermott, who died before the trial, by
J.W. Cuineen,

77
Assistant Superintendent of the Railroad, which occurred in the presence

of E.J. Conley of the Legal Department of the Railroad, W.E. Christie of the

Massachusetts Public Utilities Commission
78
and S. Byrne, lieutenant of railroad police;

and (3) the court's ruling permitting the plaintiff to introduce in evidence a written

statement given by Laurence Bona to Hoffman's lawyer if defense counsel requested to

see the statement.

The Railroad's brief consisted of twenty-one printed pages, of which thirteen were

dedicated to the four claims of error. On the issue that made this case famous, the
exclusion of the engineer's statement, the Railroad used less than two pages to make its
argument.

79
While acknowledging the finality of the jury's verdict on disputed issues of

fact, the attention given to the facts by the appellant was apparently designed to highlight

the claimed error concerning burden of proof on the issue of contributory negligence.
80

76. As evidence that the award in favor of Howard Hoffman was a substantial verdict for the era, note

that seven years after the verdict, in 1948, in the first volume of the NACCA Law Journal, a publication of the
National Association of Claimants' Compensation Attorneys, included was a section titled "Verdicts or Awards

exceeding $50,000." See 1 NACCA L.J. 99 (1948). After detailing several verdicts, the two page section
concluded with, "NACCA is interested in reporting large verdicts or compensation awards because of their

manifest interest to members of the bar. Please report those in excess of $50,000 . . . ." Id. at 100. Under

Massachusetts wrongful death law, see Mass. Gen. L. ch. 229 § 3 (Ter. ed. 1932), the measure of damages was

"not less than five hundred nor more than ten thousand dollars, to be assessed with reference to the degree of

culpability" of the Railroad, so the award to the estate of Inez Hoffman was nearly the maximum allowed by

law.

77. In the Brief for Plaintiff-Appellee, Cuineen's name is spelled "Cuneen." Brief for Plaintiff-

Appellee, supra note 59, at 9.

78. After Cuineen finished questioning McDermott, Christie asked three questions ofthe engineer. See

infra note 117.

79. The "argument" consisted of a quotation ofthe statute, an indented citation to three Second Circuit

cases interpreting the statute, and a conclusory statement that, "A reading of engineer McDermott's statement

shows its relevancy and materiality on all the issues of negligence submitted to the jury-headlight, whistle, and

bell." Brief for Appellants, supra note 59, at 14.

80. At the close of its discussion ofthe facts, the brief for appellant concluded, "Naturally the trial court

said it could not substitute its opinion for the opinion of the jury. Burden of proof as to contributory negligence

became a very practical consideration. We shall discuss other aspects ofthe evidence under the appropriate law

points." Brief for Appellants, supra note 59, at 7. Hoffman claimed that the Railroad violated both

Massachusetts statutory law as well as the common law. The possibly differing bases of these claims raised

problems under the rule in the then recently decided case of Erie Ry. Co. v. Tompkins, 304 U.S. 64 (1938). The

emphasis on the issue of burden of proof was in part a consequence of the Supreme Court's decision in Klaxon



1 995] HEARSAY REFORM 1 95

In response, the plaintiffs brief was largely occupied with the issue of the burden of

proof of contributory negligence. More than eight pages of this twenty page brief were

dedicated to that issue, and less than one-and-a-halfpages discussed the exclusion of the

business records.
81

Appellant's reply brief discussed only the issue of the allocation of

the burden of proof of the issue of contributory negligence.
82

The reply brief for the appellant railroad was filed with the Second Circuit clerk on

May 11, 1942.83 The court's decision was first released on June 23, 1942. An amended
opinion dated July 31, 1942 was published in the West Federal Reporter.

84

III. The Cast of Characters

The case ofHoffman v. Palmer was heard before a panel consisting of Thomas W.
Swan,

85
Charles E. Clark,

86
and Jerome N. Frank. Both Swan and Clark had formerly held

the position ofDean at Yale Law School. Swan was Dean from 1916 through 1926, when
he was appointed to the court. Swan was conservative in an age that equated liberal with

progressive, had married into wealth, yet was considered "a first-rate professional"
87

whose work as Dean had made Yale Law School a better and more progressive school.
Swan remained on the bench until the late 1950s, and was noted for his work in

commercial law.
88

Swan appointed Clark to the Yale Law School faculty in 1919. Ten years later, Clark
was appointed Dean, after the whirlwind deanship of Robert M. Hutchins, and remained

Dean until 1939, when he was made a judge of the Second Circuit. Clark is best known

for his reform work as Reporter to the Advisory Committee on the Federal Rules of Civil

Procedure.
89

His affection
90

for the rules of procedure resulted in Learned Hand

v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941), decided less than six months before the trial in Hoffman v.

Palmer, which interpreted Erie to require federal courts in diversity cases to apply the conflict of laws rule of

the state in which they sit.

8 1

.

Brief for Plaintiff-Appellee, supra note 59. The discussion of the exclusion of the business record

began at page 9 and concluded approximately a quarter down the next page. The burden of proof issue began

at page 12 of the brief and concluded at page 20. The first five-and-one-half pages of the Brief were devoted

to a recitation of the pleadings and facts.

82. Reply Brief for Appellants, supra note 59. The reply brief was six pages in length.

83. See Reply Brief for Appellants, supra note 59, at first page (date-stamp of receipt of brief).

84. Hoffman v. Palmer, 1 29 F.2d 976 (2d Cir. 1 942).

85. On Swan, see Learned Hand, Thomas Walter Swan, 57 Yale L. J. 167 (1947); Eugene V. Rostow,

Thomas W. Swan, 1877-1975, 85 YALE L.J. 1 59 ( 1 975); Arthur L. Corbin, The Yale Law School and Tom Swan,

Yale L. Rep., Spring 1958, at 2; Schick, supra note 9, at 19-23.

86. On Clark, see Judge Charles Edward Clark (Peninah Petruck ed. 1991); Eugene V. Rostow,

Judge Charles E. Clark, 73 YALE L.J. 1 (1963). A bibliography of articles about Clark is found in SCHICK,
supra note 9, at 361 . See generally LAURA Kalman, LEGAL REALISM AT YALE, 1927-60, at 1 15-40 (1986).

As is the case with Morgan, there is no entry on Clark in the Dictionary ofAmerican Biography.

87. Gerald Gunther, Learned Hand: The Man and the Judge 282 ( 1 994) (noting comment made
to Hand by Ned Burling).

88. John P. Frank, The Top Commercial Court, FORTUNE, Jan. 1951, at 92.

89. On the history of the Federal Rules of Civil Procedure, see Stephen N. Subrin, How Equity



1 96 INDIANA LAW REVIEW [Vol. 28: 1 83

frequently, and sarcastically, referring to him as "The GLAPP," or "The Greatest Living
Authority on Practice and Procedure."

91
Unlike Swan, Clark was a long-time political

liberal and progressive reformer.

Frank, who assumed office on May 5, 1941, was the author ofLaw and the Modern
Mind and a controversial New Dealer.92 He was educated at the University of Chicago
and practiced law in that city for many years before moving to New York to practice on
Wall Street. He was an indefatigable reader, curious about almost everything, and a
prolific writer of a number ofbooks and law review articles. Although he was considered

brilliant by colleagues and acquaintances and found by nearly everyone to be "warm and
personable,"

93
Frank was sensitive to criticism,94 and apparently "unable to concede a

point to an intellectual opponent."
95

In contrast to the stellar abilities and accomplishments of the members of the panel

hearing the appeal, the lawyers for the parties were nondescript. Hoffman's counsel of

record,
96

Benjamin Diamond, was a 1930 graduate of the law school at St. Lawrence

University in Canton, New York, and a sole practitioner in Brooklyn.97 The trial and
appellate arguments were conducted, however, by William Paul Allen. Allen, born in

1883, was a member of the firm of Fearey, Allen and Johnston until 1942, when he and

Conquered Common Law: The Federal Rules in Historical Perspective, 1 35 U. Pa. L. Rev. 909 (1 987); Peter

Charles Hoffer, Text, Translation, Context, Conversation: Preliminary Notesfor Decoding the Deliberations

ofthe Advisory Committee that Wrote the Federal Rules ofCivil Procedure, 37 Am. J. LEG. HlST. 409 (1993).

See also Stephen B. Burbank, The Rules Enabling Act of1934, 130 U. Pa. L. Rev. 1015 (1982).

90. Professor Gunther, Learned Hand's biographer, calls it Clark's "passion." Gunther, supra note

87, at 522.

9 1

.

Gunther, supra note 87, at 300, 522. Gunther notes that Hand sent a ditty to his colleague Harrie

Chase about Clark's devotion to the "wules," as Clark apparently pronounced them.

Dare we construe any wule sans Charles? I submit the following verses:

There once was a fellow named Clark

Who thought it a Hell of a lark

To discuss about wules,

And then call us fools,

Because we were so in the dark.

GUNTHER, supra note 87, at 522 (quoting Letter from Learned Hand to Harrie Chase (April 24, 1940)). Clark's

impression on Hand must have been strong, for when this letter was sent, Clark had been a member of the court

only slightly more than a year.

92. On Frank's firing from the Agriculture Adjustment Administration, see PETER N. IRONS, The NEW

Deal Lawyers 173-80 (1982); Glennon, supra note 9, at 98-101.

93. GLENNON, supra note 9, at 24 (including in the group the philosopher Morris Cohen, with whom

Frank engaged in lengthy intellectual disagreement in the early 1 930s).

94. GLENNON, supra note 9, at 24. See also GUNTHER, supra note 87, at 527 ("[W]hile [Frank] himself

was quite sensitive to perceived slights, he was uninhibited in inflicting wounds on his adversaries.").

95. GLENNON, supra note 9, at 23.

96. By the time the case reached the Supreme Court, William Paul Allen was listed as the counsel of

Howard Hoffman, and Diamond was listed as "of counsel." See Brief for Respondent, Palmer v. Hoffman, No.

300, October Term 1942 (on file with author).

97. 1 Martindale-Hubbell Law Directory 1 1 37 (72d ed. 1 940).



1 995] HEARSAY REFORM 1 97

Eugene P. Fitzpatrick formed the firm of Allen and Fitzpatrick.
98 On appeal to the Second

Circuit," Diamond and Allen were joined by Edward H. Wilson and Milton Dombroff.

Wilson, sixty-six years old, was a graduate ofNew York Law School, and Dombroffwas
a 1931 graduate of St. John's University Law School. Both men were sole practitioners,
and Allen, Wilson and Dombroff all practiced law at 70 Pine Street in New York City. 100

Counsel for the Railroad throughout this litigation was Edward R. Brumley, whose brief

listing in Martindale-Hubbell noted only his location at Grand Central Terminal.
101

Only

Wilson, who received an "a v" rating, was rated by Martindale-Hubbell. Presiding at the
trial was Matthew Abruzzo, the least respected federal district judge within the Second

Circuit.
102

Finally, there is Morgan,
103 known to friends and acquaintances as Eddie. Morgan

was a short, thin, quite handsome man, and, as a longtime member of the American Law
Institute, professor at Harvard Law School (1925-50) and editorial director of the
University Casebook series of Foundation Press, a prominent member of the legal

establishment. Morgan was also stubborn and argumentative, traits he traced to his Welsh

heritage, a heritage of which he was quite proud. In mid- 1942, at the age of sixty-three,

with the departure of James Landis to Washington, Morgan was appointed Acting Dean

of Harvard Law School, a position he would hold for the remainder of World War II.
After the third call from his alma mater, Morgan became a member of the Harvard Law

98. See id. at 1068 (listing in Biographical Section firm of Fearey, Allen and Johnston); 1

Martindale-Hubbell Law Directory 1 137 (74th ed. 1942) (listing in Biographical Section firm of Allen

and Fitzpatrick). The Brief for Plaintiff-Appellee in the Second Circuit, supra note 59, makes no mention of

either "firm," and these organizations may have been office arrangements more than partnerships. Allen also

argued the case before the United States Supreme Court. Palmer v. Hoffman, 3 1 8 U.S. 1 09, 110(1 943).

99. The Brief for Respondent filed in the Supreme Court lists only Allen and Diamond.

1 00. All this information is taken from the 72d edition of the Martindale-Hubbell Law Directory.

Neither Wilson nor Dombroff placed a listing in the Directory's Biographical Section. Instead, each was simply

given a one-line summary. See 1 Martindale-Hubbell Law Directory 1355, 1446 (72d ed. 1940).

101

.

This listing is the same for the years 1938-42. See id. at 1342. Listed as of counsel to the trustees

for the Railroad in the petition for certiorari were B.J. Seifert and A.G. Kuhbach, and in the petition for

rehearing A.G. Kuhbach and R.W. Rickard. As Frank noted in his opinion, Brumley represented the Railroad

in previous litigation. See Hoffman v. Palmer, 129 F.2d 976, 998 (2nd Cir. 1941).

1 02. SCHICK, supra note 9, at 1 37-38 ("While Learned Hand was chiefjudge none of the several dozen

district judges within the Second Circuit was as lowly regarded or criticized so often in print by the appellate

court as was Abruzzo."). One district judge who came close, however, was Judge Robert A. Inch, also a district

judge in the Eastern District ofNew York, disparagingly called "Judge Millimeter" by Hand. See GUNTHER,

supra note 87, at 302.

103. In addition to the cast of characters noted above, I could include Justice William O. Douglas, who

wrote the opinion for the Supreme Court unanimously affirming the decision of the Second Circuit. Douglas

was a friend of Frank's from the earliest days of the New Deal. See William O. Douglas, Foreword to A Man's

Reach: The Philosophy of Judge Jerome Frank, supra note 1 , at xvii. Clark was Dean when William O.

Douglas was hired as a professor at Yale. He also was Dean when Jerome Frank received an appointment in

1934 as research associate at Yale, although this appointment apparently meant little, for Frank did not spend

any time in New Haven then. Frank began teaching at Yale as an adjunct professor after World War II, and thus

well after Clark had left Yale for the Second Circuit.



198 INDIANA LAW REVIEW [Vol. 28:183

School faculty in 1925.
104

Before Harvard, Morgan taught at the University of Minnesota
and Yale, respectively. Morgan knew Swan105 and Clark quite well from his years at
Yale. After five years at the University of Minnesota, Morgan was hired by Dean Tom
Swan to begin teaching at Yale in the fall of 1917, although he did not arrive until 1919,
after two years in Washington in the Judge Advocate Corps. During the six years Morgan

taught at Yale, he was a colleague ofboth Charles E. Clark, who also joined the Yale law
faculty in 1919, and Tom Swan, who was Dean throughout Morgan's years at Yale. In
addition to Evidence, Morgan taught Civil Procedure and Practice Court at Yale. Clark
also taught Civil Procedure.

In 1935, Clark was named Reporter for the Advisory Committee on the Federal Rules

of Civil Procedure. One of the most influential members of the Committee was Morgan,
the author of a casebook on Pleading. In 1939, Morgan was appointed Reporter of the

American Law Institute's (ALI) Committee on the Model Code of Evidence. In an
attempt to avoid an initial attack on the Committee's competence, as well as to prevent

interference with its work, the unchallenged authority on the American law of evidence,

John Henry Wigmore, was named Chief Consultant. 106 Morgan and Wigmore's wary

relationship dated back over twenty years, to their work at the Judge Advocate Corps in

Washington during World War I. 107 In 1940, when Wigmore attacked the structure of the
proposed Model Code, claiming it was not specific enough, it was Clark who suggested

1 04. See Corbin, supra note 85, at 25.

105. Swan graduated from Harvard Law School in 1903, and Morgan graduated from there in 1905. I

do not know whether they knew each other as students.

1 06. In a letter dated December 6, 1 938 to William Draper Lewis, Executive Director ofthe ALI, Morgan

wrote asking "whether any group drafting a code of Evidence can be formed without including Wigmore. To

include him would doubtless extend the time required to get the job done. To exclude him would, I should

suppose, require an explanation which it would be rather embarrassing to make." Letter from Edmund M.

Morgan to William Draper Lewis (December 6, 1938) (Edmund M. Morgan Papers, Harvard Law School

Library, Box 1 , Folder 2) [hereinafter Morgan Papers]. The decision to give the seventy-five-year old Wigmore

the title of Chief Consultant (along with a salary of $100 per month) but exclude him from the Committee was

intended to both placate Wigmore and allow Morgan to draft a code as he desired.

107. In early 1919, a dispute over the fairness of the system of military justice erupted. A military

general in the judge advocate corps and Acting Judge Advocate General, Gen. Samuel T. Ansell, promoted

reform. His superior, Judge Advocate General Enoch H. Crowder, rejected Ansell' s call for reform and demoted

him to his prewar rank of Lieutenant Colonel. Supporting players chose sides: Morgan, a major, publicly

supported Ansell, and Wigmore, promoted to colonel during the War, supported Crowder. In June, 1919,

Morgan and Wigmore engaged in public debate before the Maryland State Bar Association about the system

of military justice. See Address by Col. John H. Wigmore before the Maryland State Bar Association (June 28,

1919), in 24 Md. St. B. Trans. 183 (1919); Address by Col. Edmund M. Morgan before the Maryland State

Bar Association (June 28, 1919), in 24 Md. St. B. Trans. 197 (1919). I plan to write about this event in greater

detail, for I believe it offers some insight into the relatively chilly relationship between Wigmore and Morgan

and may help to explain their differences of opinion concerning specific rules and the general structure of the

rules of evidence. On the Crowder-Ansell debate, compare Terry W. Brown, The Crowder-Ansell Dispute: The

Emergence ofGeneral Samuel T Ansell, 35 Mil. L. Rev. 1 (1967) (concluding Ansell's position was right) with

Frederick Bernays Wiener, The Seamy Side ofthe World War I Court-Martial Controversy, 123 MIL. L. REV.

109 (1989) (blaming Ansell for the dispute).



1 995] HEARSAY REFORM 1 99

the proposed draft was too specific. As Morgan later put it, the choice was "between a

catalogue, a creed, and a Code. The Institute decided in favor of a code."
108

In the 1930s, Morgan and Frank began a fitful exchange ofcorrespondence. It started

after Frank's article, Why Not a Clinical Lawyer-School?,
m was published. Morgan,

whose work developing "Practice Court" at both the University of Minnesota and Yale

was something of which he was very proud, wrote Frank a letter criticizing some of

Frank's proposals. Frank replied in defense of his proposal, Morgan responded defending

his criticism, and the pattern of future exchanges was set.
110

On May 26, 1942, Frank wrote Morgan,

Dear Eddie:

We have a question of evidence which might interest you. The issue is the
admissibility of a report made to his employer by a railroad engineer following

a collision between his train and an automobile. I'm especially interested to

know whether, if such reports were customarily made after accidents, you would

call them entries made in the regular course of business, and whether you have

considered the problem in your various capacities as Commonwealth Fund

Expert, A.L.I. Restater, etc.
111

Morgan replied, "The inquiry in your letter of May 26 seems to me to admit of an
easy answer. I should classify the reports made in the regular course of duty by the

108. Edmund M. Morgan, Foreword to MODEL Code OF EVIDENCE 13 (1942). The story of the Model

Code of Evidence is detailed in Ariens, Progress Is Our Only Product, supra note 1 2, at 229-37. Clark declined

an invitation to serve as a consultant to the Model Code Committee due to his "real concern over the product."

His concern was that the code was too particularized, the "great bane of the law of evidence today" and

something which was "against the modern trend." Letter from Charles Clark to William Draper Lewis (February

23, 1940) (Morgan Papers, supra note 106, at Box 2, Folder 2). Clark would later air his disagreement with the

drafters of the Code at the Annual Meeting of the ALI in May 1940. See 17 A.L.I. PROC. 66, 80-84 (1940).

1 09. Jerome N. Frank, Why Not a Clinical Lawyer-School?, 8 1 U. PA. L. Rev. 907 ( 1 933).

1 10. See Letter from Morgan to Frank (July 5, 1933); Letter from Frank to Morgan (July 11, 1933);

Letter from Morgan to Frank (August 11, 1933). All correspondence between Frank and Morgan is found in

the Jerome N. Frank Papers, Sterling Memorial Library, Yale University, Box 14, Folder 166 (1933, 1935

correspondence), Box 61, Folder 631 (1941-45, 1947-48, 1952 correspondence) [hereinafter Frank Papers], and

Edmund M. Morgan Papers, supra note 106, at Box 5, Folders 4, 8, 9, 10, and Box 6, Folder 1. Frank's

sensitivity to criticism is well displayed in his July 1 1, 1933 letter to Morgan. Frank claimed that Morgan, in

reviewing a book titled A Judge Takes the Stand, had implicitly attacked Frank and had accused him of being

"some kind of brash publicity seeker" and of writing Law and the Modern Mind "in a lurid fashion in order to

make it sell." Letter from Jerome Frank to Edmund M. Morgan (July 11, 1938) (Frank Papers, supra, at Box

14, Folder 166; Morgan Papers, supra note 106, at Box 5, Folder 4). Morgan denied making such charges and

claimed, "Indeed, I have a strong suspicion that the differences in our views would settle down to differences

in emphasis." Letter from Edmund M. Morgan to Jerome Frank (August 1 1 , 1933) (Frank Papers, supra, at Box

14, Folder 166: Morgan Papers, supra note 106, at Box 5, Folder 4).

111. Letter from Jerome N. Frank to Edmund M. Morgan (May 26, 1 942) (Frank Papers, supra note 1 1 0,

at Box 61, Folder 631; Morgan Papers, supra note 106, at Box 5, Folder 8).



200 INDIANA LAW REVIEW [Vol. 28: 1 83

engineer as statements or entries made in the regular course of business." 112 Later in the
same letter, Morgan wrote,

The case which you suggest is clearly distinguishable from Johnson v. Lutz, 253

N.Y. 124, for there was no duty on the by-standers to report to the policemen,

and I take it that in your case there was a duty on the engineer to make the
investigation and report what he found . . . ."

3

Frank responded ten days later by writing, "As to my views—well, I'd better say nothing
until our opinion is published."

114

IV. Hoffman v. Palmer

A. The Opinion

Frank's opinion is masterful. For a lawyer who spent nearly all of his career as a
private lawyer in corporate reorganization work and most of his career in public service

creating the administrative state, his use of sources is amazingly broad. He was given
little help by the parties' briefs, no help at all by the trial court's decision,"

5
and still

managed to write an opinion covering nearly twenty pages of the Federal Reports in

approximately a month's time. Although ajudge for just slightly over a year, the opinion

is crafted in Frank's peculiar style; it is an essay of an autodidact about both law and the

human condition, captured in the framework of an opinion.

Frank's opinion affirmed the judgment in favor of the plaintiff Hoffman. On the
issue the lawyers believed most important, the issue of the burden of proof concerning

contributory negligence, the panel unanimously (and quite briefly) agreed that the trial

112. Letter from Edmund M. Morgan to Jerome N. Frank (May 29, 1 942) (Frank Papers, supra note 1 1 0,

at Box 6 1 , Folder 63 1 ; Morgan Papers, supra note 1 06, at Box 5, Folder 8).

113. Letter from Edmund M. Morgan to Jerome N. Frank (May 29, 1 942) (Frank Papers, supra note 1 1 0,

at Box 61 , Folder 63 1 ; Morgan Papers, supra note 106, at Box 5, Folder 8).

1 14. Letter from Jerome N. Frank to Edmund M. Morgan (June 8, 1942) (Frank Papers, supra note 1 10,

at Box 61 , Folder 63 1 ; Morgan Papers, supra note 106, at Box 5, Folder 9). Frank then continued his letter by

asking Morgan a number of questions concerning the ALI's Model Code of Evidence, whose Reporter was

Morgan.

115. The record in the case indicates the following colloquy concerning the admissibility of the

engineer's statement:

Mr. Brumley: The defendants offer in evidence the statement of the engineer, who the proof

indicates is now dead, a statement taken in the regular course of business, the defendant claims, after the

accident happened.

The statement was signed by the engineer, and is marked for identification as Exhibit J, under

Section 695 USCA 28.

The defendants offer the proof also that this statement was signed in the regular course of any

business, and that it was the regular course of such business to make such statement.

Mr. Allen: I object to the statement.

The Court: Mr. Allen objects to the introduction of this statement in evidence, and the Court

sustains the objection and grants an exception to the defendant.

Record, supra note 59, at 42 1

.



1995] HEARSAY REFORM 201

court had properly assigned the burden of proof to the railroad.
116

Although only

perfunctory attention was paid the issue of the admissibility of the engineer's report"
7
by

1 16. Hoffman v. Palmer, 129 F.2d 976, 998, 1002 (2d Cir. 1942). In the Supreme Court, the issue was

not dismissed quite so summarily. Although the trial court may have correctly placed the burden of proving

contributory negligence on the defendant concerning the Massachusetts statutory claim, the court probably erred

in placing this burden on the defendant regarding the common law claim. However, because the defendant did

not differentiate between the statutory and common law claims in his request for an instruction placing the

burden concerning contributory negligence on the plaintiff, the defendant's general exception to the court's

decision to place the burden on the defendant was not specific enough to "obtain a new trial." Palmer v.

Hoffman, 318 U.S. 109, 116-20(1943).

1 1 7. The "statement" of the engineer, Harold D. McDermott, is as follows:

Q. [by Mr. J.W. Cuineen, Assistant Superintendent of the Railroad]: How long employed by the

New Haven Railroad?

A. 33 years.

Q. In what capacity? A. Fireman and Engineer.

Q. How long an Engineer? A. 22 years.

Q. You are qualified on the characteristics of the Railroad between Pittsfield, Great Barrington, and

State Line? A. Yes, Sir.

Q. You were engineer on engine 438 with Conductor Johnson on December 25th? A. Yes, Sir.

Q. What time did you leave Daly's? A. 5:45 P.M.

Q. What did you have? A. Engine and caboose.

Q. You were headed south? A. Backing up.

Q. You had a back-up headlight on the tender? A. Yes, sir, a good one.

Q. Where did you light it? A. Daly's.

Q. Where was the caboose? A. On the nose of the engine.

Q. Then the tender of the engine was the first vehicle out? A. Yes, sir.

Q. How many cars did you have leaving Pittsfield? A. I really don't know.

Q. Did you use your air brakes between Pittsfield and Daly's? A. I don't remember.

Q. Had you used your air brake before the accident? A. No.

Q. When you coupled onto the caboose at Daly's did you test your air? A. No.

Q. Why not? A. Just didn't, cut the air in and doubled the pressure.

Q. Did you make a running test? A. No, sir.

Q. Aproaching Weststockbridge, the first highway crossing north of the station what whistle signals

were given for that crossing? A. Regulation crossing whistle two long two short repeated.

Q. Where? A. Whistling post and repeated to finish just as the engine hit the crossing.

Q. You have an automatic bell ringer? A. Yes.

Q. When did you start it? A. It was gong all the way from the whistling post at the first crossing

until after the accident happened.

Q. What was the weather condition? A. Clear.

Q. How fast were you running between W. Stockbridge and where the accident occurred? A. 1

5

m.p.h.

Q. When did you last observe that the light on the tender was burning? A. When I put it out at State

Line.

Q. It was burning after the accident? A. Yes.

Q. When you were backing up did you notice any automobiles on your side ofthe crossing? A. Yes,



202 INDIANA LAW REVIEW [Vol. 28:183

there was one on the hill approaching the crossing.

Q. Did you notice any on the other side? A. No, I can't see the crossing on account of the tender.

Q. You only seen that one car standing there? A. Yes. Just the one.

Q. What was the first intimation you had of the accident? A. I heard this peculiar noise and the

fireman hollered that we have got a car. I put the brakes in emergency.

Q. Give her sand? A. Yes.

Q. When the engine stopped how far was the engine north of the crossing? A. 1 XA to 2 pole lengths.

Q. What was the weather condition at that time? A. Clear.

Q. After you stopped did you get off the engine? A. I went back to see what damage was done.

Q. What did you find? A. This Ford Coupe down the bank.

Q. Was it on its side? A. I would say it was it was tipped at a ninety degree angle.

Q. Which way was the auto traveling? A. Toward West Stockbridge pretty near due east.

Q. Assuming that the Railroad is north and south as your time table says which way would the

automobile be traveling? A. Coming from the east going west.

Q. When you got back there what did you find? A. This overturned Ford Coupe with this lady and

gentleman in it.

Q. Where was the lady when you seen her? A. On the ground laying down. The door was open.

Q. Was she conscious? A. No.

Q. Did you help to take her out of the car? A. No.

Q. Was she alive? A. Yes, she was breathing but unconscious. I don't know how she got out on the

ground.

Q. Did you help take the man out? A. No, I did not.

Q. What was his position in the car? A. He was pinned in by the steering wheel.

Q. Did you make any inspection of the engine? A. Yes.

Q. What did you find? A. The step on the tank bent and the step on the engine broken.

Q. That would indicate that he ran into the side of the tank and was not dragged or pushed by the

front of the tank? A. No, he hit with force to throw him against that pole and down the bank.

Q. Did you notice any marks on the telephone pole? A. No, I did not.

Q. Do you drive an automobile? A. Yes.

Q. Have you driven over that crossing? A. Every day going to work and going home daily as much

as anyone.

Q. What kind of a road is it? A. State Road, rough it isn't cement, macadam.

Q. In your experience in driving over that crossing how far back on the highway could you see a

headlight of an approaching train? A. Why half a mile right near that house up there.

Q. There is a little bridge down there how far is that from the tracks? A. 100 feet.

Q. You would be able to see a train from there and stop in time for it? A. Yes, sir, if you had any

brakes at all.

Q. Assuming that you were traveling 15-18 m.p.h. how long would it take you to stop? A. About

a car length.

Q. When you applied the brakes did they function perfect? A. Yes, sir, 100%.

Mr. Christie [of the Massachusetts Public Utility Commission]:

Q. From what you saw the man was the driver of the car? A. Absolutely he was behind the wheel.

Q. Where was your engine when you applied the brakes? A. I was over the crossing. I put the

brakes on after he hit. It was all simultaneous. I heard the noise, the fireman hollered and I put the

brakes on. Even if the fireman did not holler the action would have been the same.



1995] HEARSAY REFORM 203

either party, Frank began his discussion with this issue.

Because Frank's opinion was an effort to affirm the judgment, it was structured to

close off all avenues ofescape from the sanction ofthe hearsay rule. Frank first assessed

whether there was any applicable exception to the hearsay rule in the common law of
evidence. Ofcourse, the reason for the reform statute was precisely because the common
law prohibited the introduction of the business report, so the conclusion to Frank's

assessment was foregone.
118

Because the statement was "so plainly barred at common
law," the only question remaining was whether the federal statute made the statement

admissible.
119

What was crucial, according to Frank, was the court's interpretation of the words

"regular course ofbusiness" as used in the statute. These words, "twice employed in the

legislation, are not colloquial words, but are words of art, with a long history."
120 As a

term of art, this phrase, which might to a layman "seem to mean any record or paper

prepared by an employee in accordance with a rule established in that business by his

employer," actually meant in the "jargon of lawyers and judges" only those records made

in which there were "some safeguards against the existence of any exceptionally strong

bias or powerful motive to misrepresent."
121

Because the common law history of the
business records exception was rooted in the requirement of an absence of a motive to

misrepresent, any statute using the phrase "regular course ofbusiness" "would, therefore,

require unequivocal expressions in the statute or its legislative history to yield an

interpretation of those words, defying their history, which would render admissible a

memorandum made in circumstances that disclose the strongest likelihood ofthe existence

of a motive to misrepresent."
122

To prove that the statute did not include this "unequivocal expression," Frank looked

at the history of the reform statute, including its implementation and interpretation in New
York. New York's interpretation was important in understanding the federal act because
it was a "general rule that where a statute has been previously enacted in another

jurisdiction, interpretations ... in another jurisdiction are to be followed."
123

These

constructions were "peculiarly persuasive where the statute is designed to be

Q. Your engine was in good mechanical condition? A. Yes, sir.

I have read my statement consisting of4 pages and it is true and correct.

Signed HAROLD D. MCDERMOTT.

Record, supra note 59, at 496-99 (Defendants' Exhibit J for Identification).

118. In so holding, Frank concluded that the common law exception for business records was dependent

on the declarant having "no peculiarly powerful motive to misrepresent; such a motive, if it exists must be

relatively minimal and marginal." Hoffman, 129 F.2d at 980. In Frank's view, "the absence of any vigorous

motive to misrepresent ... is inherent in virtually all the exceptions to the hearsay rule, such as declarations

about private boundaries, statements or records concerning family history, spontaneous declarations, and dying

declarations." Id. at 981.

119. Mat 983.
120. Id.

121. Id. at 984 (emphasis in original).

122. Id.

123. Mat 985.



204 INDIANA LAW REVIEW [Vol. 28:183

'uniform.'"
124

Although the most well known New York precedent appeared to be
Johnson v. Lutz,

n5 Morgan had already noted a crucial difference between Lutz and

Hoffman: Unlike the bystanders in Lutz, who "voluntarily" provided the information to
the police officer whose report was offered as evidence, the engineer McDermott was
under a duty to make a statement concerning the accident. Avoiding Lutz, Frank turned
instead to a decision of the Appellate Division of the New York Supreme Court, Needle
v. New York Railways Corp.* 26 Needle was decided shortly before the decision of the
Court of Appeals in Lutz. In Needle, the Appellate Division reversed the trial court and

held inadmissible a police blotter which contained statements made to the officer by
bystanders as well as the conductor of the trolley car which struck the plaintiff as she was

crossing Lexington Avenue in New York City. According to Frank, the court held the
police blotter inadmissible in part because "his report was based on the oral statement of

others, including, as the court said, that 'ofthe interested motorman, who, instead ofbeing

so placed as to be presumed to be without a motive.to falsify in helping to make the
record, had every reason to give a biased andfalse report.'"

121 When Congress passed
the reform statute in 1936, "[n]o change in its verbiage was suggested or was made to
indicate an intention to deviate from that reasonable New York interpretation." 128 A "not
inflexible" rule of statutory construction required courts to follow the "reasonable"

interpretation of a statute previously interpreted in another state, so Frank concluded that

"the Needle case . . . should be followed as entirely reasonable."
129

To prove that Needle reasonably interpreted the reform statute and the phrase "regular

course of business," Frank developed four lines of attack. First, he suggested the main

reason for the statute may simply have been a dissatisfaction with the authentication
requirement of the common law. 130 Second, he concluded that it was "without doubt" that
the sponsors of the Model Act, Wigmore and Morgan, "did not intend to abolish the

exception and to substitute another, by giving thatphrase a meaningprecisely opposite

to that which they well knew was its recognized meaning."
131

Third, "[i]t is our function

to find out what Congress intended," and "we must not allow our personal preferences for

124. Id

125. 170N.E. 517 (N.Y. 1930).

1 26. 237 N.Y.S. 547 (N.Y. App. Div. 1 929).

1 27. Hoffman, 1 29 F.2d at 984-85 (quoting Needle, 237 N.Y.S. at 549) (emphasis added by Frank).

128. Id. at 985.

129. Id.

1 30. Frank noted that the Commonwealth Fund Evidence Committee criticized the common law rule for

requiring the testimony of every person who was involved in the transaction, so "[o]ne reading the report of the

Committee might, therefore, reasonably assume that perhaps its chief purpose was the desire to avoid the

necessity of proving each link of such a chain." Id. at 986.

131. Id. (emphasis in original). At a slightly later point in the opinion, Frank wrote:

It is suggested that Morgan and Wigmore have said that it was intended that such reports should be

admissible. But we have been unable to find that either of them has ever published any such

comments, i.e., that they have ever discussed the problem which is here before us, in a case arising

under the statute, either vis a vis the Needle case or otherwise.

Id. at 990. But Frank had corresponded privately with Morgan, and knew Morgan's opinion regarding the

"problem . . . here before us," something he did not share publicly.



1995] HEARSAY REFORM 205

a more extensive reform to govern our decision."
132

Because Congress chose to use rather

than omit the phrase "regular course of business," and because those words enjoyed a

specific historical meaning, "[w]e must assume that Congress used them deliberately with

recognition of their history."
133

Fourth, Frank concluded that even assuming the Lutz case

was erroneously decided/
34
Needle was clearly distinguishable from Lutz. I35

In conclusion, then, engineer McDermott's statement was not admissible, because it

"by its very nature, is dripping with motivations to misrepresent."
136

After canvassing and

distinguishing any possible precedent in the Second Circuit, Frank concluded, "to repeat,

we know of no case in any court holding, or even intimating, that such an obviously
motivated record as that here before us is admissible under that Act."

137

To close the circle, and as if he were attempting to persuade Morgan, Frank noted the

following: (1) The element of an absence of a motivation to misrepresent did not return

the state of evidence law to the primitive days of a century ago, for both Wigmore, in his

Treatise, and Learned Hand, in a recent decision, had noted the importance of a motive

to speak the truth in admitting statements otherwise barred by the hearsay rule; (2) the

requirement of an absence of motive to misrepresent did not create an unworkable

standard, for like all questions of degree, it did not leave "the extent of the disqualifying

motive under § 695 at large." For Frank, it was clear that the statute did not permit the

introduction of accident reports "where the primary purpose of the employer, obvious

from the circumstances, in ordering those accidents is to use them in litigation involving

those accidents";
138

(3) the railroad never argued that the presence of the Massachusetts

Utilities Commision representative made the report admissible as a public record,

although in dictum Frank declared this a futile effort;
139

and (4) the death of engineer

McDermott before trial made no legal difference. There existed no common law

1 32. Id. at 987. These quotes are in the reverse of Frank's order.

1 33. Id. at 986. Frank then quoted extensively from the COMMITTEE REPORT, supra note 47, concluding

that the "limited objective at which Congress was in fact driving" was to eliminate the onerous authentication

requirement. Hoffman, 129 F.2d at 987. This material was added to the opinion after it was first released.

134. Frank apparently did not share this assumption, for he used a classic appeal to authority for the

correctness ofthe Lutz decision, noting that it was "unanimous," written by Judge Lehman, "who had previously

indicated that the regular entry exception ought to be liberally construed," and joined by Judge Cardozo, "who

had not only written in a similar vein, but was also a member of the Legal Research Committee of the

Commonwealth Fund, which sponsored the Model Act." Hoffman, 129 F.2d at 990 (footnotes omitted).

135. Among the differences between the two cases were that, apparently unlike the bystanders in Lutz,

the motorman in Needle possessed personal knowledge of the accident and "was probably under a duty to state

the facts to the investigating policeman." Id. For my criticism of this interpretation, see infra text

accompanying notes 191-206.

136. Hoffman, 129 F.2d at 991.

137. Mat 993.
138. Id. The Supreme Court relied on this formulation of Frank's decision in affirming the Second

Circuit decision. "In short, it is manifest that in this case those reports are not for the systematic conduct of the

enterprise as a railroad business. . . . [T]hese reports are calculated for use essentially in the court, not in the

business. Their primary utility is in litigating, not in railroading." Palmer v. Hoffman, 318 U.S. 109, 114

(1943).

1 39. Hoffman, 1 29 F.2d at 993-94.



206 INDIANA LAW REVIEW [Vol. 28:183

exception to hearsay based on the death before trial of the declarant,
140

and the reform

statute was worded without regard to the availability of the maker of the statement.

Additionally, Rule 503(a) of the ALI's Model Code of Evidence, which permitted the
introduction of hearsay statements upon a showing of the declarant's unavailability, was,

as Frank noted, merely "a proposed statute," which "gives courts no authority."
141

Thus

closed, the exclusion of the engineer's statement did not constitute error.
142

Clark wrote a blistering, and blustery, dissent. Because the decision "seems to me
directly opposed to the intent of the statute, as shown by its plain terms as well as its

history and background," and because the decision "originates a process of restrictive

interpretation of the statute which we have hitherto unanimously repudiated,"143 Clark
dissented. Above all, Clark noted, "zeal against reform is as much to be guarded against
as zeal for reform."

144

After quoting pertinent parts of the statute, Clark noted that the engineer's statement

was "direct relevant testimony of the kind which any court ofjustice ought to desire to

admit."
145

Not only was the fear of a motive to misrepresent "a reason which went out of

favor a century ago," but "if the turning point is the degree of possible motivation, then

we have a hopelessly unfair subjective test depending upon the intial brusque reactions
of the trier."

146 As for the argument that creating a record for use in a lawsuit made it

1 40. This is why Appleton, unsuccessfully, and later Thayer, successfully, suggested reforming the rules

to admit a statement made by one who died before trial. Frank did not note the Massachusetts law, originally

passed in 1 898 at Thayer's behest, which permitted the introduction ofhearsay statements made by persons who

had died before trial, as long as the statement was made in good faith before commencement of the litigation.

See Mass Gen. L. ch. 233, § 65 (Ter. ed., 1932). Because the case was tried in federal court, all "procedural"

rules, including all "procedural" rules of evidence, were based on federal, not state, law. See Erie Ry. Co. v.

Tompkins, 304 U.S. 64 (1938). Had the case been tried in Massachusetts, the statement might have been

admissible under Massachusetts law. Cf. Nagle v. Boston & N. St. Ry., 73 N.E. 1019 (1905) (holding
admissible a self-serving statement of a motorman offered by his estate in the action arising from the conduct

which the statement favorably explained).

141. Hoffman, 1 29 F.2d at 995.

142. Both of the other two claims of evidentiary error were troublesome as well, although reversal was

not required. The decision of the trial judge permitting the plaintiff to introduce into evidence a statement

written by a witness before trial if defense counsel requested to peruse it was error, but not reversible error, for

two reasons. One reason was waiver, for Brumley had not requested the trial court to certify the statement to

the court of appeals, so it was not in the record. The second reason was that Brumley, representing the same

party in a case two years earlier, had successfully argued in favor of the rule he was now complaining about!

Id. at 997-98. (This part of Frank's opinion is noteworthy for his facility in citing Santayana, Vaihinger,

Montaigne, Maitland, Henry Maine, Roger Bacon and Herbert Spencer, among others, in a mere two pages).

The refusal of the trial court to permit a defense witness to testify to certain observations made by him was

apparently not in error because the conditions about which the witness was to testify were not "identical" or

"comparable" (Frank uses both standards) to the circumstances at the time of the accident. Id. at 998.

143. Id. at 999 (Clark, J., dissenting).

144. Id.

145. Id.

146. Id. at 1000. Clark reiterated this point at the end of his dissent: "Stress is laid on the existence of

a powerful motive to misrepresent; but what constitutes such a motive is left at large, seemingly to the hasty



1995] HEARSAY REFORM 207

unreliable, Clark noted that the Second Circuit had already rejected that in United States

v. Mortimer™
1
and suggested that "the purpose and the value of records were their use in

future disputes—to prevent many, to settle others." 148 Most importantly to Clark, the
majority's narrow interpretation ofthe business records reform statute was flawed because

it failed to recognize "what the trend of the times is,"
149

a trend of liberal interpretation of

the rules of evidence.

B. The Dispute Among Frank, Clark and Morgan

At about the same time Frank was soliciting advice from Morgan, he was doing the

same with the other members of the Second Circuit, Senior Circuit Judge 150 Learned

Hand,
151

Learned's cousin Augustus Hand,
152

and Harrie Chase.
153 From Frank's

appointment in May 1941, until Learned Hand's retirement in 1951, the membership of
the court remained the same. During that time, the court's reputation as the second most

important court in the country was solidified.
154

However, as one scholar of the Second

Circuit has noted, "From not long after Jerome Frank took his seat on the Second Circuit

discretion of the trier, in the midst of a case." Id. at 1002.

147. 118 F.2d 266, cert, denied, 314 U.S. 616 (1941). In Mortimer, decided a little over a year before

Hoffman, the Second Circuit permitted the government to introduce several charts showing defaults by

defendants of mortgaged properties, even though the charts were made in preparation for the trial. Id. at 270.

The decision was written by Judge Clark for a panel that included Learned and Gus Hand. Because his

conclusion was not solely based on the fact that the statement "was made after litigation was imminent," Frank

considered Mortimer distinguishable. Hoffman, 129 F.2d at 991-92. Clark also noted that the decision of the

majority "sets aside quite peremptorily the reasoning of several unanimous decisions of this court." Hoffman,

129 F.2d at 999 (citing, in addition to Mortimer, Hunter v. Derby Foods, Inc., 1 10 F.2d 970 (2d Cir. 1940)

(death certificate of coroner indicating death from ptomaine poisoning), Ulm v. Moore-McCormack Lines, 1 15

F.2d 492 (2d Cir. 1940), reh g denied, 1 17 F.2d 222 (2d Cir. 1941), cert, denied, 313 U.S. 567 (1941) (hospital

records offered by defendant to prove plaintiffs injury a result of drug use); and Reed v. Order of United

Commercial Travelers, 123 F.2d 252 (2d Cir. 1941) (hospital record of diagnosis of plaintiff indcating "still

apparently well under influence of alcohol") (cases in the order given by the court)). In each of these cases,

Clark was a member ofthe panel, and in each case the court found the business record was admissible under the

federal business records statute. In addition to his opinion in Mortimer, Clark also wrote both opinions in Ulm.

Frank was a member only ofthe panel that decided Reed, a per curiam opinion. Frank believed all ofthese cases

were distinguishable, either because there existed no "impelling motives to misrepresent" or because the records

involved in those cases were more "trustworthy," or because the Second Circuit followed Lutz or failed to

distinguish (or cite) Needle. Hoffman, 129 F.2d at 991-92.

148. Hoffman, 129 F.2d at 1000 (Clark, J., dissenting).

149. Id. (footnote omitted).

1 50. In 1948, the term "senior circuit judge" was replaced by "chiefjudge." SCHICK, Supra note 9, at

5n.l.

151. On Learned Hand, see GUNTHER, supra note 87.

1 52. On Augustus Hand, see Charles Wyzanski, Augustus Noble Hand, 61 Harv. L. Rev. 573 ( 1 948).

153. See Schick, supra note 9 at 26-29; Jeffrey B. Morris, Federal Justice in the Second Circuit

143(1986).

1 54. Wyzanski, supra note 1 52; Frank, supra note 88. A later appraisal by a former law clerk is Philip
Kurland, Jerome N. Frank: Some Reflections and Recollections ofa Law Clerk, 24 U. CHI. L. REV. 66 1 ( 1 957).



208 INDIANA LAW REVIEW [Vol. 28:183

until the retirement of Learned Hand a decade later, the outstanding feature of the court's
work—except for the decisions handed down—was the virtually uninterrupted friction
between Judges Clark and Frank, the court's junior members."

155
The actions taken by

Frank and Clark in the Hoffman case played some role in the deterioration of their
relationship.

Shortly before the court's decision in Hoffman was first released, Frank and Clark

exchanged letters accusing each other of improper action concerning the case.
156

During

the course of writing his opinion, Frank wrote to Clark on June 22, 1942 that he had

discussed the question with Learned and Gus. Both of them disagreed with me.

I, therefore, suggested that I ascertain how Harrie felt; I said to Learned and Gus
that, if four of the six of us agreed with you, I felt it unwise that Tom and I
should decide the question. Learned said No.

157

Frank then claimed that after he and Clark discussed the matter with the Hands, Clark sent

his dissent to them, which forced Frank to "show Gus mine." In Frank's view, Gus's

reaction was, "He had previously felt the evidence admissible; my opinion made him less
sure." Frank also told Harrie Chase about "both sides" and Harrie's "inclination was

toward my views of the question." 158 Clark, a supporter of en banc decisionmaking,
responded: "Under the circumstances ... I do not believe it is proper to say that Gus has

shifted ground or that Harrie has passed upon the matter. All that it is possible to say is

155. Schick, supra note 9, at 219.

156. See Letter from Jerome Frank to Charles E. Clark (June 22, 1942); Letter from Charles E. Clark to

Jerome Frank (June 23, 1942) (Frank Papers, supra note 1 10, at Conference Memoranda File, Box 92, Folder

766). Clark, who did most of his work in New Haven, apparently preferred written exchanges to face-to-face

conversations, in large part because he did not consider himself a felicitous debater. As noted above, Frank was

a delightful, combative and persuasive conversationalist. But Clark apparently decided to try to see Frank

regarding their disputes over Hoffman and the Corning Glass cases. See Letter from Charles E. Clark to Jerome

Frank (July 1 , 1942) (Frank Papers, supra note 1 10, at Box 120, Folder 1 158) ("I stopped in to see you after our

conference Monday, but we did not get through until late and you had gone.").

157. Letter from Jerome Frank to Charles E. Clark (June 22, 1942) (Frank Papers, supra note 1 10, at

Conference Memoranda File, Box 92, Folder 766). See also Letter from Jerome Frank to Charles E. Clark (July

6, 1942) (Frank Papers, supra note 1 10, at Box 120, Folder 1 158), in which Frank writes:

As I've told you before, I then said to Gus and Learned (before you knew anything about their

views) that I thought I should ascertain how Harrie would view the matter and that, if he agreed with

you, the decision should go your way, as then Tom and I would be a minority of two out of six.

Learned said, No. Then, when you came to town, you, Learned, Gus and I discussed the matter at

lunch and Learned said he was opposed to a six-judge court. Then you sent Gus and Learned your

dissent. Only then did I give Gus my draft of opinion. He said it made him somewhat less sure of

his earlier disagreement with me. Learned didn't see my opinion (unless he's read it since it's been

printed) and I don't know his reaction. I chatted with Harrie who said he thought he'd probably

agree with me, but I told him to wait until my and your opinions were published.

Learned Hand opposed en banc decisions. SCHICK, supra note 9, at 102, 105.

158. Letter from Jerome Frank to Charles E. Clark (June 22, 1942) (Frank Papers, supra note 1 10, at

Conference Memoranda File, Box 92, Folder 766).



1995] HEARSAY REFORM 209

that the court is seriously divided on the question, and it is one which certainly ought to

have gone before the full court."
159

By asserting that Chase's "inclination" tended toward Frank and Swan's position,
Frank was now able to claim he was no longer in a position of arguing a minority view.
The additional claim that Augustus Hand was "less sure" of his initial position made

Frank's position even more tenable. For someone as sensitive to criticism as Frank, his

efforts to informally persuade the members not on the panel to his position may have been
important, particularly because he knew that the criticism voiced in Clark's dissent was

likely to be joined by Morgan.

Part of Frank's problem concerning his emendation of the business records exception

was that both Hands served as members of the Advisory Committee to the Model Code

of Evidence,
160

which Committee proposed a business records rule "based upon the Act

recommended by the Commonwealth Fund Committee, which has been enacted by

Congress."
161

This was, of course, the Act at issue in Hoffman v. Palmer. Additionally,

Frank's predecessor on the Second Circuit, Robert P. Patterson, was also a member of the

Committee on Evidence.
162

Finally (and speculatively), the fact that the case came from

Abruzzo's court would not have aided Frank's cause, although the practice of the Second

Circuit at this time was not to name the trial judge in its opinion,
163

and it is unclear

whether the Hands were aware that Abruzzo was the trial judge.

Apparently looking for support, Clark sent the slip opinion to Morgan. Morgan

angrily wrote to Frank:

Charlie Clark has sent me the opinions in the Hoffman case. I must say that
you have done a fine job in statutory emasculation. If we should have a few
more decisions like yours construing the business entry statute, we should get
back almost to the common law rule. The idea that a business entry is
inadmissible because the entrant had a motive to misstate, is the idea which

made the English common law courts reject all business entries except when
made by a servant in the course of duty. It played almost no part in the

development ofthe modern rule in the United States, and was not regarded as an

essential element of the rule in the great majority of cases. Every business entry

charging another with an obligation to the entrant or to the entrant's employer

has some of the characteristics of a self-serving statment, but I do not want to

argue the matter with you. I merely want to point out that in emphasizing this

uncertain element in the common law rule, you have totally disregarded the
language of the statute. The decision is all the more surprising to me coming,
as it does, from a man whom I had always regarded as a liberal thinker in the
law. Perhaps your liberalism is confined to substantive matter and perhaps your

1 59. Letter from Charles E. Clark to Jerome Frank (June 23, 1942) (Frank Papers, supra note 1 10, at

Conference Memoranda File, Box 92, Folder 766).

160. See Model Code OF Evidence at III (1942) (listing members of the ALI's Committee on

Evidence).

161. Id. at 271 (comment to Rule 514, entitled "Business Entries and the Like").

162. Id. at III.

163. Schick, supra note 9, at 138-39.



210 INDIANA LAW REVIEW [Vol. 28:183

faith in the common law processes of adjudication does not equal your faith in
the administrative process.

164

Frank's response to Morgan's one-page letter was an eight-page missive. 165

Beginning with "[i]f a judge says something with which E.M. Morgan disagrees, he's a
reactionary, who doesn't take the judicial process seriously, and who is a careless,
unscholarly, worker,"

166
Frank continued with several different defenses of both the

decision and his actions. He became a judge only because he took the judicial process
seriously, and although there was room for "judicial legislation," "we'll give the judiciary

a black eye" "if we judges go to construing statutes so as to achieve results we like,
without regard to the intention of Congress."

167
Even though Frank believed "the hearsay

rule should probably be abolished," it was his duty to follow Congress's intentions, which

were ascertainable from the Senate Judiciary Committee Report on the business records

statute.
168 As the author of the Commonwealth Fund Committee proposal, on which the

federal business records act was based, Morgan was probably the '"worst person'" to

construe the statute. And Frank noted that Morgan himself had published nothing which
"hinted" that the statute (or its predecessor reform proposals) was intended to go beyond

eliminating the common law requirement that each entry maker authenticate his entry.
Frank then cited Wigmore's Treatise for support that the motive to misrepresent was

clearly a part of the history of the rule concerning the admissibility of business records.

Penultimately, Frank used his abhorrence of the jury trial to defend his interpretation:

"Except in criminal cases, I think the jury should be eliminated. It is, to my mind, the

164. Letter from Edmund M. Morgan to Jerome Frank (July 3, 1942) (Frank Papers, supra note 1 10, at

Box 6 1 , Folder 63 1 ; Morgan Papers, supra note 1 06, at Box 5, Folder 1 0). Morgan also wrote a short note that

day to Clark, telling him that he had also written Frank and that, "you took him to town in your dissent, and I

am puzzled to know why Tom Swan agreed with him." Letter from Edmund M. Morgan to Charles E. Clark

(July 3, 1942) (Morgan Papers, supra note 106, at Box 5, Folder 10).

165. Letter from Jerome Frank to Edmund M. Morgan (July 8, 1942) (Frank Papers, supra note 1 10, at

Box 61, Folder 631; Morgan Papers, supra note 106, at Box 5, Folder 10). All quotations in the paragraph that

follow are taken from this letter.

1 66. In the final version ofthe Hoffman opinion, Frank wrote, "[o]ur decision here is no less liberal than

the decisions of other state or federal courts interpreting the Model Act." Hoffman, 129 F.2d at 993. This

passage was written before Frank received the July 3 letter from Morgan, but I believe it is reasonable to

speculate that this was Frank's attempt to justify to Morgan, with whom he had earlier corresponded, as well

as to himself (and maybe Clark) that he was not a "reactionary," but remained a "liberal."

1 67. Frank continued: "And we so-called 'liberals' ought to be singularly careful in that respect. We've

beefed about the way the 'reactionaries' on the bench killed off legislation by excessive use of judicial

legislation. We ought not now use the same devices with reverse English." That liberals feared being charged

with excessive use of judicial legislation after the constitutional revolution of 1937 is discussed in Michael

Ariens, A Thrice-Told Tale, or Felix the Cat, 107 Harv. L. Rev. 620, 667-74 (1994).

1 68. Frank extensively quoted the Report to Morgan, and noted that he had failed to discuss the Report

when defining "regular course of business" in his initial opinion. Possibly because of Morgan's response to

Frank, the Hoffman opinion was revised and when released for official publication on July 31, 1942, included

the information from the Senate Judiciary Committee Report in order to show the intent of Congress concerning

the business records statute. See Hoffman, 129 F.2d at 987-90.



1 995] HEARSAY REFORM 2 1

1

worst possible means of factfinding. More than any other factor, it tends to emphasize the

trial as a mere game of wits."
169

Special verdicts might bring some "sense" to the "jury

system," but opposition to this, as well as to "juries of experts" led to "a hopeless mess."

To prove that he was not a stickler for antiquated rules of evidence, including hearsay

rules, Frank concluded, "As emotions—and not evidence or the court's
instructions—determine verdicts, without possibility of control, I see little harm in letting
in anything. For, the more you let in, the more there is for the jury to disregard." Finally,

in a postscript, Frank again made an appeal to authority, noting that Cardozo joined the

unanimous opinion of the New York Court of Appeals in Johnson v. Lutz, and asserted,
as he had with Clark, support from the other Second Circuit judges: "[D]on't be too sure

that the judges of this court, other than Charlie, wouldn't go along with the majority

opinion in Hoffman v. Palmer."

In a brief response,'
70 Morgan disclaimed calling Frank "either a reactionary or a

fool," but reiterated his belief that the "opinion seemed to me to over-emphasize the
statements in business entry cases and to rely upon what seemed to me outworn
cautionary generalizations instead of accepting the general attitude of the forward-looking

courts."
171 Morgan promised a longer reply, which was sent on August 15, 1942.

172

Morgan again criticized Frank for "taking the traditionally conservative attitude toward

procedural reform," unlike the "forward-looking" approach Frank had "as an

administrative officer and on questions] of social policy." Morgan agreed that the author

of a statute is "the last man to interpret it," but still thought that a reasonable interpretation

of the Act was broader than Frank's interpretation. After disagreeing with Frank's

recitation of the history of the phrase "regular course of business" and its relation to the

absence of a motive to misrepresent, he wrote, "I do not think as badly of the jury as you

do, or as you think that I do." For Morgan, although the jury was "a poor instrument for

fact finding" in complex commercial cases, it was "likely to reach a socially just result"

in tort cases. But "sensible decisions" were less likely as long as the rules of evidence

1 69. He then cited as support for this statement parts of his Law and the Modern Mind. Frank did not

make clear why the jury was helpful to the criminally accused, particularly when it based its decision on

"emotions." In his 1949 book Courts on Trial, Frank was more equivocal about the jury in criminal cases.

Jerome Frank, Courts on Trial: Myth and Reality in American Justice 136 (1949).

170. Letter from Edmund M. Morgan to Jerome Frank (July 10, 1942) (Frank Papers, supra note 1 10,

at Box 61, Folder 63 1 ; Morgan Papers, supra note 106, at Box 5, Folder 10). All quotations following are taken

from this letter.

171. Morgan professed "great doubts" whether the report would have altered the jury's verdict, and was

more concerned that an "elaborate opinion by the Second Circuit, which is probably the best court in the

country," gave life to a discredited approach to the rules of evidence. He concluded: "Let me assure you, Jerry,

I am really flattered that you would pay so much attention to my opinion on a question of this sort." In response,

Frank sent an opinion that he asked Morgan to read, and wrote, "It will serve to show that I'm not a hopeless

reactionary in the field of so-called adjective law." Letter from Jerome Frank to Edmund M. Morgan (July 15,

1942) (Frank Papers, supra note 1 10, at Box 61, Folder 631; Morgan Papers, supra note 106, at Box 5, Folder

10).

1 72. Letter from Edmund M. Morgan to Jerome Frank (August 1 5, 1 942) (Frank Papers, supra note 1 1 0,

at Box 61, Folder 631; Morgan Papers, supra note 106, at Box 5, Folder 10). This letter was three pages in

length. All quotations following are from this letter.



212 INDIANA LAW REVIEW [Vol. 28:183

were based on "the notion that a lawsuit is a contest between adversaries who can limit
the issues .... The less ofa game you make of a lawsuit, the better job a jury will do." 173

As might be expected, Frank gave it one more try. 174 After informing Morgan that
he was not "unaware" that the "'intent of the legislature is, at times,' a fiction," Frank

again argued that there was no need to rely on the fiction in Hoffman, for Congress meant

what it said. Further, Frank's evaluation of pre-statutory precedent in the Second Circuit

proved that the "element of motive" played a role in the history of the common law rule.
Morgan's response was brief: "Thanks a lot for your letter of August 25. 1 suppose we
might as well agree at this point to disagree."

175

In the November 1942 issue of the Harvard Law Review, a note about the case was
published.

176
Initialled "J.M.M." for Morgan's colleague and Cases on Evidence co-

author John M. Maguire, who was also the Assistant Reporter to the Model Code of
Evidence Committee, the note began with a summary of the case. Maguire then

complained, "Transgressors tread no harder way than do those who seek to liberalize the
law of evidence."

177
After years of effort, reformers accomplished only little change, in

part because "an ameliorative act may find itself more or less strait-jacketed by strict
judicial interpretation." Hoffman v. Palmer was another "manifestation of aversion to

change."
178

For the next several years, apparently in an effort to regain Morgan's favor, Frank

occasionally sent copies of his opinions to Morgan. In November 1943, Frank sent

Morgan his opinion in Zell v. American Seating Company, l79 and in the cover letter wrote:

"Perhaps you'll consider the enclosed opinion ... as some indication that I'm not a 100%

1 73. Morgan's response to Frank's claim that his hands were tied (Holmes's "can't helps") was to the

point: "In short, Jerry, humility is a gown which fits you and your court very badly." Morgan concluded:

"Notwithstanding this long letter, and my continued disagreement with the Hoffman opinion and with much in

Law and the Modern Mind, I continue to be very fond of you, and am rejoiced in your progress in the public

service." See supra note 1 72.

1 74. Letter from Jerome Frank to Edmund M. Morgan (August 25, 1 942) (Frank Papers, supra note 1 1 0,

at Box 61 , Folder 63 1 ; Morgan Papers, supra note 1 06, at Box 6, Folder 1 ). This was merely a four page letter.

All quotations following are from this letter.

175. Letter from Edmund M. Morgan to Jerome Frank (August 31,1 942) (Frank Papers, supra note 1 1 0,

at Box 6 1 , Folder 63 1 ; Morgan Papers, supra note 1 06, at Box 6, Folder 1 ).

176. J.M.M. , Note, Hoffman v. Palmer: Admissibility at Common Law and Under the Model Act of

Business Records Made by a Third Party with Incentive to Misrepresent, 56 Harv. L. Rev. 458 (1942).

177. Id. at 459.

1 78. Id. Nearly two decades later, in a symposium issue of the Vanderbilt Law Review honoring Eddie

Morgan, Maguire contributed an essay on the "thicket" of the "hearsay system," and while praising reform of

the law concerning the admissibility of business records, remarked, "Such wet blankets as Palmer v. Hoffman,

3 1 8 U.S. 109 (1943), are fortunately rare." John M. Maguire, The Hearsay System: Around and Through the

Thicket, 14 Vand. L. Rev. 741, 774 n. 104 (1961).

1 79. 1 38 F.2d 641 (2nd Cir. 1943). Frank's opinion in Zell is a fascinating, and discursive, essay about

the history of the parol evidence rule and its limited value and application in modern litigation. A by-product

of this essay was the court's conclusion that the trial court's decision to grant summary judgment was

erroneously based on its broad interpretation of the parol evidence rule.



1 995] HEARSAY REFORM 2 1

3

reactionary."
180

In the next two years, Frank sent his opinions in Buckminster's Estate v.

Commissioner,
l81

and Doehler Metal Furniture Co. v. United States}*
1
remarking in the

cover letter included with the latter case, "In the enclosed, I've tried to learn from the best

minds."
183

In 1 946, Morgan discussed the developments in the law of evidence during World

War II. 184 Near the end of this lengthy survey, Morgan criticized both Frank's opinion in

Hoffman and Justice Douglas's opinion for the Supreme Court in Palmer v. Hoffman ,
185

Morgan's criticism of Frank's opinion was relatively mild: "The least that can be said is

that [Frank's] approach to the interpretation of such an enactment is extremely

unfortunate."
186 Morgan was much more critical of the Supreme Court's opinion, in

180. Letter from Jerome Frank to Edmund M. Morgan (November 19, 1943) (Frank Papers, supra note

1 10, at Box 61, Folder 631). If Frank was asking to be forgiven, Morgan was willing to accommodate. But

Morgan was not going to forget: "You did not need to send me this opinion to convince me that you are not

100% reactionary. I know full well your liberal tendency, but I still can't get over the shock of your distorting

the statute and excluding a statement made in the course of duty in the Hoffman case." Letter from Edmund M.

Morgan to Jerome Frank (November 23, 1 943) (Frank Papers, supra note 1 1 0, at Box 6 1 , Folder 63 1 ). Frank's

plaintive reply: "You have a hard heart. Isn't it an extenuating fact that nine Supreme Court justices similarly

'distorted' the statute?" Letter from Jerome Frank to Edmund M. Morgan (November 27, 1943) (Frank Papers,

supra note 1 1 0, at Box 6 1 , Folder 63 1 ).

181. 147 F.2d 331 (2d Cir. 1944). At the outset of his opinion, Frank held admissible pursuant to the

federal business records statute a hospital record containing the conclusion that the taxpayer suffered a cerebral

hemorrhage. Frank then criticized New York Life Ins. Co. v. Taylor, 147 F.2d 297 (D.C. Cir. 1 944), which held

inadmissible hospital records containing information concerning the insured's death (the issue was whether the

death was suicide or accident). "We do not agree with the way in which Hoffman v. Palmer was interpreted in

the Taylor case." Buckminster's Estate, 147 F.2d at 334. Morgan also criticized Taylor, and cited Frank's

opinion in Buckminster's Estate for support. See Edmund M. Morgan, The Law ofEvidence, 1941-45, 59 HARV.

L. Rev. 48 1 , 565 ( 1 946) ("[The Taylor Court's] reliance on the opinion ofJudge Frank in the Palmer case seems

to have been in error, for the Court of Appeals for the Second Circuit expressly disapproved the Taylor case in

Buckminster 's Estate v. Commissioner.") (footnote omitted). Interestingly, the opinion in Taylor was written

by another famous legal realist, Thurman Arnold, then an Associate Judge of the United States Court of Appeals

for the District of Columbia, and also a critic of the rationality of trials. See Thurman Arnold, The Symbols

OF GOVERNMENT ch. 8 (1935) (naming chapter "Trial by Combat"); Thurman Arnold, The Role ofSubstantive

Law and Procedure in the Legal Process, 45 HARV. L. Rev. 617 (1932); THURMAN ARNOLD AND FLEMING

James, Cases and Materials on Trials Judgments and Appeals (1936).

182. 149 F.2d 130, 137 n. 10 (2nd Cir. 1945) (citing with approval Morgan's work on the law of

presumptions).

1 83. Letter from Jerome Frank to Edmund M. Morgan (May 9, 1 945) (Frank Papers, supra note 1 1 0, at

Box 61, Folder 631).

1 84. Morgan, supra note 181.

1 85. Morgan, supra note 1 81 , at 565-67.

186. Morgan, supra note 181, at 565-66. Morgan then opined that Frank erroneously assumed "the

inherent validity of . . . the common law instead of regarding the entire hearsay rule as an exception to the

principle that a trier of fact should have the advantage ofconsidering all available relevant data." Morgan, supra

note 181, at 566.



214 INDIANA LAW REVIEW [Vol. 28:183

which the business records statute "fared much more badly." 187 After criticizing
Douglas's interpretation of the historical basis of the business records statute, and his

wrongly "taking judicial notice" of the fact that the reports were not part of the business

of the railroad, he concluded: "It is said that James B. Thayer once remarked in effect that

the greatness of the Supreme Court was not revealed in its decisions on questions of
evidence. Elaboration would be superfluous."188

V. The Meaning of it All

A. The Opinion

Two aspects of Frank's opinion deserve some extended comment: 189 first, his
reliance on Needle v. New York Railways Corporation'™ and second, his apparent refusal
to assess the statement made by the engineer McDermott.

1. Needle v. New York Railways Corporation.—In Frank's opinion, the federal
business records statute was borrowed from the New York act. Consequently, to
understand the meaning of the federal act, the court was required to ascertain the meaning

of the New York act, and the meaning of the New York act was dependent on judicial
interpretation of that act. Even assuming that one accepts the first premise, 191 why rely
on Needle, an intermediate appellate decision, as the proper case to interpret the New
York act, rather than the much more famous case ofJohnson v. Lutz, 192 decided by the
New York Court of Appeals, New York's highest court?

187. Morgan, supra note 181, at 566. Eighteen months after the Supreme Court released its Palmer

opinion, Morgan wrote to Douglas complaining, "Now see what you went and done in the Palmer case, New

York Life v. Taylor, 143 F.2d 14!" Letter from Edmund M. Morgan to William O. Douglas (August 31, 1944)

(Edmund M. Morgan Papers, Vanderbilt University) [hereinafter Morgan Papers, Vanderbilt University] (copy

on file with author). The Morgan Papers at Vanderbilt are not yet archived by box and folder number. Douglas

replied, "It is tough to be held responsible for all progeny of a case. What principle of liability is that?" Letter

from William O. Douglas to Edmund M. Morgan (November 1 , 1944) (Morgan Papers, Vanderbilt University),

supra.

188. Morgan, supra note 1 81 , at 567. Five years later, apparently at the request of Charlie Clark, Morgan

sent a reprint of this and other evidence articles to him. Clark then wrote a thank-you letter, concluding, "And

of course I love your criticisms of Palmer v. Hoffman." Letter from Charles E. Clark to Edmund M. Morgan

(September 17, 1951) (Morgan Papers, Vanderbilt University, supra note 187).

1 89. Frank's interpretation of the phrase "regular course of business" was subject to a searing comment

in J.M.M., Note, supra note 176, at 462-65.

190. 237 N.Y.S. 547(1929).

191. It seems at least as accurate to say that both the federal and New York acts were borrowed from the

Commonwealth Fund proposal, which would thus require some understanding of the intent of the framers of

that proposal, in particular Morgan and Wigmore. Judge Clark had so interpreted the federal act in 1 940 in Ulm

v. Moore-McCormack Lines Inc., 115 F.2d 492, 495 (2d Cir. 1940) ("[T]his act did not come from the New

York statute. Both in fact derive from the activities of a committee of experts on the law of evidence appointed

by the Commonwealth Fund . . . ."). Frank ignored Clark's assertion, see Hoffman, 129 F.2d at 985, and later

attempted to defuse this problem through his explanation ofMorgan and Wigmore's views ofNeedle. Hoffman,

129F.2dat991.

192. 170N.E. 517 (N.Y. 1930).



1 995] HEARSAY REFORM 2 1

5

As Frank noted, both Morgan and Wigrnore had criticized the Lutz decision. 193 But
this was of no consequence, for Frank claimed that "we may, arguendo, assume [Lutz],

to have been wrong. . . . [I]t has no bearing whatever on the case at bar."
194

Instead,

because the crucial precedent was Needle, the criticism ofLutz by Morgan and Wigrnore

was of no consequence.

In both Needle and Lutz, the dispute concerned the admissibility of a police blotter,

in both cases the evidence was offered by the defendant as evidence exculpating the

defendant, and in both cases the information recorded on the blotter was based on hearsay

statements from third parties. And, finally, both cases were tort actions alleging negligent

conduct on the part of an employee of the defendant. Frank noted only one factual

difference, which he believed made Lutz "clearly distinguishable from the Needle case." 195

In Needle, "the report was excluded because of the motorman's probable bias even though

(a) he was, ofcourse, familiar with the facts, (b) he was probably under a duty to state the

facts to the investigating policeman, and (c) the policeman, acting officially, was

disinterested."
196

Therefore, Needle turned upon the issue of bias, rather than, as in Lutz,

the issues of either the lack of personal knowledge of witnesses,
197

or lack of duty to

report their observations. These differences, as Frank noted in his opinion, were

"crucial," for Needle thus demonstrated that the motive to misrepresent was a crucial

underpinning of the business records exception to hearsay.

The problem with Frank's analysis is that it "plays fast and loose" with the Appellate

Division's opinion in Needle. Yes, the Needle court did note that the "interested

motorman . . . had every reason to give[] a biased and false report," and Frank accurately

quoted this part of the court's opinion. The first half of the statement, however, which

Frank omitted from the Hoffman opinion, stated:

In the case at bar, to show that this record is inadmissible, it is only necessary to

point out that the statements made to the policeman, upon which he based his

report, were not made by any person in the regular course of any business, but,

on the contrary, the report of the policeman was made upon the irresponsible

193. Hoffman, 129 F.2d at 990 & n.27.
194. Id. at 990.

195. Id.

196. Id.

197. In Lutz, the Court of Appeals merely stated: "It does not appear [from the police blotter] whether

they saw the accident and stated to him [the police officer] what they knew, or stated what some other persons

had told them." Lutz, 170 N.E. at 5 18. Frank interpreted Lutz as holding it error to admit:

a written hearsay report made by A who is under a duty to make it, where (1) A has no personal

knowledge of the facts and (2) bases his report on the statement of B who himself has no knowledge

of the facts and (3) who, not in the regular course of business of B's business, states what was told

him by C who (4) had personal knowledge of the facts but did not state them to B in the regular

course of B's or C's business.

Hoffman, 129 F.2d at 990, n.28. Element (2) of Frank's construction is not necessarily part of the Lutz

holding, but simply indicates the Lutz court's awareness of another possible gap in the proof. A lay witness is
rarely permitted to testify without personal knowledge of the testimonial matter. See Fed. R. Evid. 602.



216 INDIANA LAW REVIEW [Vol. 28:183

gossip of bystanders and the even more unreliable conclusion of the interested

motorman.
198

With the addition of this language to the "holding" in Needle quoted by Frank, at least

three possibilities emerge. First, the interested motorman was not believed by the court

to have been under any duty to speak with the police officer, for the statements in the

blotter "were not made by any person in the regular course of any business."199 This
undermines Frank's conclusion that Needle was distinguishable from Lutz because the

conductor "was probably under a duty to state the facts to the investigating policeman."200

Second, the court was as concerned with "the irresponsible gossip ofbystanders," that is,

with the witnesses' lack of personal knowledge, as with the fact that these were out-of-

court statements offered as true, and thus hearsay. This again undercuts any factual

distinction between Lutz and Needle. Third, the court may have considered the
"conclusion" of the motorman an opinion rather than a statement of fact, and thus

inadmissible because lay witnesses were limited to testifying to facts.
201

With Needle distinguished from Lutz, and thus the proper authority to interpret the

federal business records act, Frank then turned to Morgan and Wigmore's views of

Needle. Frank first noted that Morgan had never publicly criticized Needle. 202 Although

Wigmore had criticized Needle, he had "overlooked entirely the crucial

fact—differentiating Needle sharply from Lutz—that among 'the various persons' in
Needle was the highly 'interested motorman.'"

203
Consequently, Frank could make the

remarkable assertion that "[i]t is difficult to believe that, had [Wigmore] noted that

distinguishing factor, he would have criticized the decision."
204

Needle thus stood both

unbloody and unbowed.

Frank lastly suggested another reason for relying on Needle: Because Needle "was

decided before the Court of Appeals decided Johnson v. Lutz . . . there can be no doubt

that the court which decided the Needle case . . . would be even more ready to exclude the

company's document here."
205

Indeed, the Needle court did not decide "because of the

reasons given in the Lutz case, and criticized by Wigmore and Morgan, but because of the

1 98. Needle, 237 N.Y.S. at 549.

199. Id.

200. Hoffman, 1 29 F.2d at 990.

20 1

.

The court noted earlier in its opinion that the police blotter "contained the statement, 'Responsibility

Pedestrian,'" which was based in part on the motorman's statements. The court may have believed that the

statement "Responsibility Pedestrian" was an inadmissible conclusion of the officer, a lay witness without

personal knowledge of the facts. Needle, 237 N.Y.S. at 548.

202. Hoffman, 1 29 F.2d at 99 1

.

203. Id.

204. Id. I doubt it, for Wigmore was critical not just ofLutz but of any judicial interpretation limiting

the admissiblity of business records under the reform acts, and Wigmore championed this reform proposal as

a member of the Commonwealth Fund committee and as chariman of the ABA reform committee. There is no

private correspondence between Wigmore and Frank in the Wigmore papers at Northwestern, and I know of no

published criticism of Hoffman by Wigmore before he died.

205. Hoffman, 129 F.2d at 990.



1 995] HEARSAY REFORM 2 1

7

existence of that strong motive to misrepresent."
206

Again, Frank's statement is true but

inaccurate. Yes, it was true that Needle was decided before the New York Court of
Appeals decided Lutz. However, Needle was decided after the Appellate Division

decided Lutz. Not only did the Appellate Division decide Lutz before Needle, the case

was quoted in its entirety in Needle and was the only precedential case cited by the Needle

court in support of its decision.
207

For Frank to suggest that Lutz and Needle were

distinguishable on grounds that the latter did not rely on the former stretches credulity.

2. The Engineer's Statement.—Possibly the only thing missing from Frank's
exhaustive opinion is the text of the statement at the heart of the dispute.

208
The format

of the statement, a series of questions by an Assistant Superintendent of the Railroad

answered by the engineer, could have suggested a misrepresentation of the facts.

However, the statement itself refutes that suggestion. Frank's decision not to include the

text of the statement in his opinion was made, in my view, because the statement did not
include assertions "dripping with motivations to misrepresent" and thus did not support

his conclusion.

Frank made two decisions concerning his evaluation of the engineer's statement. I

believe both were mistaken. He made a behavioral claim without assessing the truth of
the claim in light of the case, and he failed to assess the statement in context.

Not once in the opinion did Frank give an example ofthe bias in the statement. Frank

apparently cared not at all about the statement itself. Because the statement was made

after the accident, and because it was made by someone who was "very likely, in a
probable law suit relating to that accident, to be charged with wrongdoing as a participant

in the accident,"
209

the maker was "almost certain, when making the memorandum or
report, to be sharply affected by a desire to exculpate himself and to relieve himself or his

employer of liability."
210

This is a behavioral claim.
211

Frank gives no citation here to

empirical work on human behavior. This claim is simply a given. As a theory of human

nature, it may be true. And, if accepted as true and applied to law, this behavioral claim
might have given rise to a rule requiring the trial court to assess the extent of the bias of

206. Id.

207. Needle, 237 N.Y.S. at 549. Before quoting Johnson v. Lutz, 234 NY.S. 328 (App. Div. 1929) in

full, the Needle court stated: "This holding is also in accord with that of the Appellate Division, Second

Department, in sustaining the exclusion of a police blotter under circumstances similar to those in the case at

bar . . . ." Needle, 237 N.Y.S. at 549. The only other case cited in the entire opinion is Vosburgh v. Thayer, 12

Johns. 461 (1815), cited as the first New York case producing a "limited 'Shop Book' rule." Needle, 237 N.Y.S.

at 548-49. See also Note, Admissibility ofBusiness Entries: A Comparison ofthe Federal and New York Rules,

11 Brook. L. Rev. 78, 85 (1941) (concluding that Needle "reified] primarily" on Johnson v. Lutz); Note,

Judicial Interpretations ofSection 374a ofthe Civil Practice Act, 4 ST. JOHN'S L. REV. 271, 272 (1930) (stating

that Lutz and Needle presented situations that "were practically identical").

208. See supra note 1 1 7 for the text ofthe statement. The reader can speculate as well as I about Frank's

reasons for not setting forth the engineer's statement.

209. Hoffman, 1 29 F.2d at 99 1

.

210. Id.

211. Frank is also making a behavioral claim regarding the nature in which human beings would receive

this information. That is, he is suggesting that a human beings sitting as members of a jury could not

understand, and thus properly discount, such a statement.



2 1

8

INDIANA LAW REVIEW [Vol. 28: 1 83

a particular statement offered before admitting it into evidence or admitting the evidence

and instructing the jury to receive the statement cautiously. But Frank made no effort to
persuade the reader that his theory of human behavior was borne out in the statement.
Instead, he simply relied on the "fact" that the statement "by its very nature, is dripping

with motivations to misrepresent."
212

In his 1949 book Courts on Trial, Frank wrote, "The basic aim of the courts in our

society should, I think, be the just settlement of particular disputes, the just decision of

specific law-suits."
213 To achieve this, courts must "strive tirelessly to get as close as is

humanly possible to the actual facts of specific court-room controversies. Courthouse

justice is, I repeat, done at retail, not at wholesale."
214

But Frank failed to heed his own
advice. The Hoffman opinion is decided only at the wholesale level. Although Frank

notes that the engineer's statement was given "two days after the accident,"215 he never

ties this fact to his conclusion of the engineer's bias. To do so would require some
evidence that the purpose of the interview was to perpetuate the engineer's testimony, and

that requires that the railroad knew or had reason to know both that it would be sued and
that McDermott would die before trial.216 Frank also never assessed, nor suggested that

the trial court assess, McDermott's belief as of Friday, December 27, 1940, that his

statement was being given at a time when an impending lawsuit was shortly to "charge"

him with "wrongdoing." As with the motorman in Needle, McDermott's motive to

misrepresent apparently arose immediately after the accident occurred and never

dissipated.

One way in which to assess McDermott's motive to misrepresent is to look at what

he said. Before the lawsuit was a twinkling in any plaintiffs eye,
217 McDermott claimed

that the bell and whistle were sounded, and that the tender of the engine had a "good"

back-up light attached to it. He also claimed that the back-up light was burning after the
accident and was put out by him at some point after the accident. All of this information

is exculpatory and thus subject to Frank's motive to misrepresent.
218

However,

McDermott also stated that he had not made a "test" of his air brakes before beginning to

back up; that he could see out only one side of the engine; that after the accident Inez

Hoffman was unconscious but breathing; that he did not help Howard Hoffman, who was

212. Hoffman, 1 29 F.2d at 99 1 . The quotation of the wordfact earlier in the sentence is mine.

213. Frank, supra note 1 69.

2 1 4. Frank, supra note 1 69.

215. Hoffman, 1 29 F.2d at 979.

216. I speculate that, if at all possible, Brumley would have called McDermott as a witness, which would

have vitiated any need to introduce the written statement. My speculation serves to counter Frank's view that

in this type ofcase it was "the primary purpose ofthe employer ... to use [the statements] in litigation involving

those accidents." Id. at 993. Additionally, unless Frank knew or suggested the likelihood that Cuineen and

McDermott had rehearsed McDermott's "testimony" and that McDermott and the fireman Meach had rehearsed

their stories, it is unclear how the railroad primarily intended to use McDermott's statement in any ensuing

litigation. Meach was not cross-examined on this subject, and Cuineen was not called as a witness.

217. Howard Hoffman was unconscious and Inez Hoffman was dead. I suppose that Hulda Hoffman,

the owner of the Ford coupe, might have thought about a lawsuit.

218. All of this is also cumulative in the sense that similar testimony was given by the fireman Meach.

See Record, supra note 59, at 329-39.



1 995] HEARSAY REFORM 2 1

9

pinned against the steering wheel, out of the car; and that he was backing up at between
fifteen and eighteen miles per hour. He also denied questioner Cuineen's suggestion that
the car "ran into the side of the tank," and, in response to Mr. Christie of the

Massachusetts Public Utility Commission, stated that he did not put his brakes on until
he "was over the crossing" and that he "put on the brakes after he [Hoffman] hit." All of
this information can be perceived as harmful to the railroad's case.

219
However, because

no lawsuit had been filed, I fail to see how McDermott could have known that the
particular claims of negligence decided by the jury would be failure to sound bell and
whistle, or failure to light a proper backup light, rather than say, excessive speed or failure

to look out.
220

Frank did not attempt to get as close to the facts as humanly possible. He chose
rather to make broad assertions, assertions the record does not bear out.

B. Hoffman and the Visions ofMorgan and Frank.

In the summer of 1942, when Morgan and Frank were exchanging correspondence
about Hoffman, Frank sent Morgan eight unpublished pages of a draft of the Hoffman
opinion.

221
Frank's purpose in writing was to challenge directly the efficacy of Morgan's

efforts to reform the rules of evidence. The result made relatively clear both the

differences and similarities of Frank's and Morgan's visions about law and the legal

process.

Morgan did not believe that the existence of the jury system fully explained the

hearsay rule or other exclusionary rules of evidence,
222

although the existence of the jury

was "in part responsible for a portion of the law creating and governing exceptions to the

hearsay rule."
223 The traditional view connecting the jury with exclusionary rules of

evidence led to the reflexive claim that hearsay reform was unnecessary or even harmful.

Morgan's contrary view was that many exclusionary rules, including the rules on hearsay,

were based on the mistaken (and contradictory) notions of widespread perjury, combined

219. See supra note 117. I suppose one could argue that McDermott was intentionally throwing these

"harmful" facts into his statement to hide his motivation to misrepresent. Cf. Williamson v. United States, 1 1

4

S. Ct. 2431, 2435 (1994) (holding that Federal Rule of Evidence 804(b)(3), permitting the introduction of

statements against interest, "does not allow the admission of non-self-inculpatory statements, even if they are

made within a broader narrative that is generally self-inculpatory").

220. In fact, the complaint did allege that defendants "ran the said locomotive and the cars attached

thereto at a high and unlawful rate of speed at a place where it knew that special care should be exercised and

[was negligent] in failing to keep a proper and vigilant lookout." Record, supra note 59, at 10; Complaint at

8. These issues were not, however, submitted to the jury.

22 1

.

Hoffman, excerpt of draft opinion, in Frank Papers, supra note 1 1 0, at Box 6 1 , Folder 63 1 . Frank

requested Morgan return the draft, which he did, and thus it is found only in the Frank Papers. Much in this

essay, and in Frank's letters to Morgan in 1942, is explored in greater depth in Frank's 1949 book, Courts on

Trial. See FRANK, supra note 169, at 14-36, 80-102, 108-45.

222. Edmund M. Morgan, The Jury and the Exclusionary Rules of Evidence, 4 U. CHI. L. Rev. 247

(1937). Morgan thus took issue with the work of James Bradley Thayer. See id. at 258 ("But the dictum of the

great Thayer that the English law of evidence is 'the child of the jury' is, it is suggested with the greatest

deference, not more than a half-truth." (footnotes omitted)).

223. Id. at 256.



220 INDIANA LAW REVIEW [Vol. 28: 1 83

with the belief that exclusionary rules would prevent the jury from hearing false evidence.

The result of the application of those rules at trial was that the trial was not a rational
proceeding designed for the settlement of disputes between litigants. The radical reform

of hearsay was necessary to make trials more rational.

Frank considered the jury to be an incompetent fact-finding body largely because of

its lack of training in the difficult "art" of fact-finding and its predilection for deciding

cases based on emotion and sympathy, rather than the evidence. Frank believed several

consequences flowed from this. Due in part to its lack of training, the jury was "a
hundred times" less capable of accurately finding the facts than a judge. Because, in

truth, the jury decided cases on emotion,
224

the exclusionary rules of evidence were

unimportant,
225

and a relaxation of those rules would simply give the jury more to

disregard.
226

Ultimately, the preferred solution was to amend the Constitution and abolish

the jury in civil trials.

Both Frank and Morgan were proud to be "liberals" and "reformers." Both men were
harsh critics of the sporting theory ofjustice.

227
In this, they followed a path well trod by

Thayer, Wigmore and Pound.228 Both desired a "rational" process for resolving disputes,

and both believed the present system was in many respects "irrational." Finally, both
agreed the goal of the legal system was to effectuate justice. However, their assent on

these issues led to quite different conclusions. Morgan desired radical evidentiary reform

liberalizing the admission of evidence. Frank desired the elimination or radical

restructuring of the jury.

In his draft opinion, Frank accused Morgan of "acknowledging that a jury trial is not

and cannot be converted into a 'proceeding for the discovery of truth by rational

processes.'"
229

The foundation of Morgan's reform efforts, then, was not to produce better

224. In his Hoffman draft, Frank wrote, "[E]veryone who has talked to those who have served on juries

knows that the evidence often plays but a small role in jurors' deliberations." Hoffman, partial draft opinion, in

Frank Papers, supra note 1 10, at Box 61 , Folder 63 1 . He cited no empirical data for this claim, instead citing

Morgan's caustic review of the book Trial Technique by Irving Goldstein. Edmund M. Morgan, Book Review,

49 HARV. L. Rev. 1387 (1936). Goldstein suggested, among other things, that the plaintiffs lawyer in a tort

case seek jurors who will respond to an emotional appeal. Frank noted that Morgan acknowledged that

Goldstein's conclusions were the product ofreal trial work. Frank should have known (and probably did know)

better than to conclude that one man's experience proved his point. He was trying (not very successfully, in my

view) to attack Morgan with Morgan's own words. For the same point, using the same example, see Frank,

supra note 1 69, at 121.

225. Frank may have modified his views on this by the time he wrote Courts on Trial. See FRANK, supra

note 169, at 123 ("[Exclusionary rules] limit, absurdly, the court-room quest for the truth."); id. at 144 ("[I]f we

have to have the jury, let us abolish, or modify, most (not all) of the exclusionary rules, since they often shut

out important evidence without which the actual past facts cannot be approximated."). This sounds just like

Morgan.

226. Hoffman, partial draft opinion, in Frank Papers, supra note 1 10, at Box 61 , Folder 631

.

227. See, e.g., Morgan, Foreword, supra note 54, at 1 1 ; FRANK, supra note 169, at 80-102.

228. See supra note 39.

229. Hoffman, partial draft opinion, in Frank Papers, supra note 1 10, at Box 61, Folder 631 (quoting

Morgan, supra note 224, at 1389 (reviewing Irving Goldstein, Trial Technique (1935))). It was this

statement in the HarvardLaw Review which revived the Frank-Morgan correspondence in 1 94 1 . Frank wanted



1 995] HEARSAY REFORM 22

1

factfinding by the jury, but to reduce the waste of time the rules brought to the trial and
appellate courts. This is not quite accurate. Morgan was well aware that "the jury is often
swayed by sympathy and prejudice"

230
and also was quite well aware of the immense

difficulty of finding the truth of "what actually happened, in a case where the facts are in

dispute."
231

But he believed a lawsuit could be made a "rational proceeding," and the only
way in which to do that was to reform the rules of evidence. Frank is more accurate about
Morgan's belief in "truth." After reading Frank's unpublished essay, Morgan's response

was not to defend the trial as a search for the truth, but merely to claim that "[t]he less of
a game you make of a lawsuit, the better job a jury will do. It is nonsense to say that a
jury cannot with the aid ofjudges and counsel put a fair value upon hearsay."232 Although

the probabilities of ascertaining the truth were more likely once evidence reform was in

place, no guarantees could be made.

Frank travelled in a different direction. Frank proposed eliminating the jury because

it was incapable of discovering the "true facts."
233

In Courts on Trial, Frank claimed that

"[m]any experienced persons believe that of all the possible ways that could be devised

to get at the falsity or truth of testimony, none could be conceived that would be more

ineffective than trial by jury."
234

The existence of the jury "helps to keep alive this fight-

theory"
235

at the expense of Frank's preferred "truth theory." Frank accepted that the trial

process, because human, was fallible. Mimicking Morgan, he concluded that the trial

"can never be a completely scientific investigation for the discovery of the true facts."
236

But because the goal of the trial was the truth, the judicial process should rely on experts

to ascertain the truth. Such experts included judges and administrative experts.
237

to quote this statement in his book If Men Were Angels and wrote "Professor Morgan," asking to publish

material from an article in Volume 49 of the Harvard Law Review. After some confusion (apparently Morgan

clearly distinguished "articles" from "book reviews") and after chiding "Jerry" for not calling him "Eddie,"

Morgan granted permission.

230. Edmund M. Morgan, Book Review, 46 Harv. L. Rev. 1 203 ( 1 933) (reviewing JOSEPH N. Ulman,

A Judge Takes the Stand ( 1 933)).
23 1

.

Edmund M. Morgan, Book Review, 2 J. LEGAL EDUC. 385, 386 ( 1 950) (reviewing FRANK, supra

note 1 69).

232. Letter from Edmund M. Morgan to Jerome Frank (August 1 5, 1 942) (Frank Papers, supra note 1 1 0,

at Box 61, Folder 631; Morgan Papers, supra note 106, at Box 5, Folder 10). See also Morgan, Code of

Evidence, supra note 54, at 539 ("A lawsuit is not a means of making a scientific investigation for the

ascertainment of truth; it is a proceeding for the orderly settlement of a controversy between litigants.").

233. For Frank's use of this phrase, see, e.g., Hoffman, 129 F.2d at 996; Zell v. American Seating Co.,

138 F.2d 641, 645 (2d Cir. 1943); and Frank, supra note 169, at 102.

234. FRANK, supra note 169, at 20. Included in the "many experienced persons" was Frank himself.

See Frank, supra note 169, at 108-25.

235. Frank, supra note 169, at 1 36.

236. Frank, supra note 1 69, at 99.

237. Hoffman, partial draft opinion, in Frank Papers, supra note 1 10, at Box 61 , Folder 63 1 ; Frank,

supra note 169, at 126-27. Frank knew eliminating the jury was impossible and suggested jury reforms

including the use of the special verdict, expert juries in commercial and other complex cases, intermediate fact-

finders, eliminating most exclusionary evidence rules, recording jury-room deliberations, and training for jury

service, Frank, supra note 169, at 141-45, as well as "testimonial experts" to give opinions whether the witness



222 INDIANA LAW REVIEW [Vol. 28: 1 83

This seems a curious conclusion for one who proclaimed he was an "original"
member of a sub-group of legal realists Frank called "fact-skeptics."238 The difference lay
in a misunderstanding of the phrase. Frank's self-stylization as a fact-skeptic was not a

claim that he was a cognitive relativist, for he believed devoutly in "true facts." As often
as he placed the word facts in quotes, he spoke of getting as close as possible to what

really happened. As Morgan noted in his review of Frank's book, there was an
"overemphasis" on the "possibility of mistake and perjury" in litigation.

239
Frank's

"overemphasis" on mistake and perjury was a result of his desire to make the trial a search
for truth.

What does Hoffman tell us? In terms of the law of evidence, it tells us that the fear
of "false" evidence has always been used to caution against efforts proclaiming "radical

reform." In terms of the legal thought ofJerome Frank, it suggests a caution to the picture

of Frank as a "relativist." For all the difficulties in achieving it, the goal of the trial was

truth, a goal that seems incompatible with the portrait of Frank as a cognitive relativist.

It also suggests that Frank's reform proposals, based on the idea that truth is the goal of

the trial, fit squarely within the tradition of evidence reformers like Appleton, Thayer and

Wigmore. This also suggests that Morgan was more comfortable than Frank in living

with the uncertainty of the adequacy of the jury's search for the truth. This also makes

Morgan less a pillar of the legal establishment and more a radical reformer. Finally, it

suggests a much shallower divide, a "difference in emphasis"240 as Morgan put it, between

"realists" as exemplified by Frank, and "progressives" as exemplified by Morgan.

C. The Effect on Hearsay Reform

One recurrent theme of the work of evidence reformers is optimism that the future

will bring about a better day. From Thayer's The Present and Future of the Law of
Evidence

241
to McCormick's Tomorrow 's Law ofEvidence

242
to Morgan's The Future of

the Law of Evidence
24Z

the criticism of the present state of the law was leavened by

suggestions for its future improvement. Among Thayer, McCormick and Morgan, the last

was lying, Frank, supra note 1 69, at 1 00. Well before Courts on Trial was published, Morgan voiced his

skepticism of the ability ofjudges to decide free of sympathy and prejudice. See Morgan, supra note 230, at

1 203 ("To be sure, the jury is often swayed by sympathy and prejudice; but are trial judges motivated solely by

intellectual impulses?").

238. Frank, supra note 169, at 74. Included in this group as "perhaps" a fact-skeptic was Morgan.

Frank, supra note 169, at 74.

239. Morgan, supra note 23 1 , at 387. Morgan continued: "[T]here is no solid ground for the conclusion

that the perjured evidence is credited and that the result in the majority of litigated cases is not in accord with

the essentials of the actual facts." Morgan, supra note 231, at 387. Frank did not limit this assertion to his

books: "Perjury, of course, is pernicious and doubtless much of it is used in our courts daily with unfortunate

success." Zell v. American Seating Co., 138 F.2d 641, 645-46 (2d Cir. 1943).

240. Letter from Edmund M. Morgan to Jerome Frank (August 1 1 , 1 933) (Frank Papers, supra note 1 1 0,

at Box 14, Folder 166; Morgan Papers, supra note 106, at Box 5, Folder 4).

24 1

.

James B. Thayer, The Present and Future ofthe Law ofEvidence, 1 2 HARV. L. Rev. 71(1 898).

242. Charles T. McCormick, Tomorrow's Law of Evidence, 24 A.B.A. J. 507 (July 1938). On

McCormick's career, see the tributes found at 28 Tex. L. Rev. 3-22 (1949) and 40 Tex. L. Rev. 176-92 (1961).

243

.

Edmund M. Morgan, The Future ofthe Law ofEvidence, 29 Tex. L. Rev. 587 ( 1 95 1 ).



1995] HEARSAY REFORM 223

was the most pessimistic. Although Thayer claimed that the "rules are thus in a great
degree ill-apprehended, ill-stated, ill-digested,"

244
if lawyers and judges kept in mind "a

few comprehensive, fundamental principles . .
.

, our system might be vastly improved."
245

McCormick, writing shortly before the ALI began its work on the Model Code,
concluded: "In actual jury trials the machinery of evidence rules, devised to filter the

testimony for the untrained minds ofthe jurymen, has become too complex for use except

to the limited extent
"246

But the future held the opportunity for a "rational, simplified

code of evidence."
247

After the Model Code failed to be enacted in any state, Morgan was less sanguine.

After quoting Greenleafs extravagant praise of the law of evidence
248

and summarizing

the numerous defects of the law of evidence, he wrote: "The picture I have painted is

dark. To be sure, it is not, on the whole, so black as that which seemed a rosy pink to
Greenleaf. A lawsuit much more nearly approaches a rational investigation than it did a
hundred years ago. . . . But the entire subject needs revision."

249

Ofparticular concern to Morgan was the lack ofprogress concerning the application
of the hearsay rule. He praised Wigmore for bringing "order out of a chaos of
decisions"

250
concerning hearsay but believed that this order created the appearance of "a

consistency and rationality which I believe non-existent."
251

This appearance led the bar

to accept the hearsay rules as the "'crystalized wisdom ofthe ages,'" a perception that led

to opposition to any reform.
252

After applying a number of hearsay rules in a hypothetical

(but not farfetched) case, Morgan concluded:

I submit that the combination of these rulings makes a demonstration that the

hearsay rule as applied is not only illogical but absolutely irrational. It cries

aloud for reexamination not only of its details but of its justification for

existence. Its progress in the last century has been not forward but backward,

and on the road to irrational nonsense.
253

244. Thayer, supra note 24 1 , at 74.

245. Thayer, supra note 241 , at 72, 93-94.

246. McCormick, supra note 242, at 508.

247. McCormick, supra note 242, at 58 1 . McCormick believed that hearsay was one doctrinal area in

which optimism was warranted. He approvingly cited the Massachusetts rule admitting hearsay declarations

of persons deceased at the time of trial and saw a future in which the rule would be treated "in terms of

discretion which needs only to be limited by some requirement of fair notice and to be guided by a general

standard." McCormick, supra note 242, at 512.

248. See Morgan, supra note 243, at 587. In 1898, Thayer also quoted Greenleaf and then wrote: "I

think that it would be juster and more exact to say that our law of evidence is a piece of illogical, but by no

means irrational, patchwork, not at all to be admired, nor easily to be found intelligible, except as a product of

the jury system ...'." Thayer, supra note 241, at 72.

249. Morgan, supra note 243, at 598.

250. Morgan, supra note 243, at 593.

25 1

.

Morgan, supra note 243, at 593-94.

252. Morgan, supra note 243, at 594.

253. Morgan, supra note 243, at 597.



224 INDIANA LAW REVIEW [Vol. 28:183

But there was hope on the horizon. If "a frontal attack on the entire field is foredoomed

to failure at present,"
254

a flank attack, lessening the "sporting features of a lawsuit,"
255

was much more likely to succeed.
Nearly a decade after the decision in Hoffman, a Kansas City lawyer and Chairman

of the Evidence Code Committee of the Missouri Bar, Charles L. Carr, discussed the

proposed Missouri Code of Evidence.
256 By this time, the Model Code of Evidence was

a dead letter, killed by, among other causes, World War II, Wigmore's opposition,257 and
professional resistance to "radical" reform.

258
That resistance was due, in some part, to

the Model Code's "radical reform" of hearsay was made clear in Carr's essay. Carr
couched the proposed Missouri Evidence Code, also never enacted, as not embracing

reform, much less radical reform, but as an effort to "clarif[y], condense[], and simplify]"
the existing rules of evidence.

259 The Model Code was "too radical for adoption as a

whole in Missouri,"
260

and "[t]he most revolutionary part of the Model Code" was its

work concerning hearsay.261 The hearsay rules proposed by the Model Code departed

from (or ignored) experience, and left the administration of justice "without any real

limitation or safeguard with regard to hearsay evidence."
262

Morgan's efforts to radically reform the rules of evidence failed, although two later,

much less radical, efforts generated some reform.263 Any momentum to radically reform
hearsay, however, was lost. The Uniform Rules of Evidence were consciously less

"radical" than the Model Code, According to its Committee Chairman, Spencer Gard,

"Sensible change without shock is an underlying policy of the Rules. That is the reason

254. Morgan, supra note 243, at 599.

255. Morgan, supra note 243, at 605.

256. Charles L. Carr, The Proposed Missouri Evidence Code, 29 Tex. L. Rev. 627 ( 1 95 1 ). This article

originally was presented at the Benjamin Dudley Tarlton Institute on the Law of Evidence at the University of

Texas on December 9, 1950.

257. See John Henry Wigmore, The American Law Institute Code ofEvidence Rules: A Dissent, 28

A.B.A. J. 23(1942).

258. See Report ofCommittee on Administration ofJustice on Model Code ofEvidence, 19 J. St. B.

Calif. 262 (1944) (rejecting Model Code because it was designed to "entirely revolutionize our present rules

of evidence and to substitute for them the rules of evidence that are generally in force in continental Europe").

This resistance was also based, in part, on Morgan's controversial claim that, "A lawsuit is not a means of

making a scientific investigation for the ascertainment of truth." Morgan, Code ofEvidence, supra note 54, at

539. See Ariens, supra note 12, at 234-37, 242-45.

259. Carr, supra note 256, at 635.

260. Carr, supra note 256, at 641

.

26 1

.

Carr, supra note 256, at 640. See also Carr, supra note 256, at 638 ("The most revolutionary feature

of the Model Code is that it does away with the hearsay exclusion rule and its exceptions . . . without any real

limitation.").

262. Carr, supra note 256, at 640.

263. The Uniform Rules of Evidence, promulgated by the National Conference of Commissioners on

Uniform State Laws in 1953, were adopted in four jurisdictions, Kansas, New Jersey, Utah and the Virgin

Islands. The Federal Rules of Evidence, enacted by Congress and implemented in 1975, have been adapted by

nearly forty states. On the background of both sets of rules, see Ariens, supra note 12, at 245-53.



1995] HEARSAY REFORM 225

why the Rules take a somewhat conservative approach to the problem of hearsay."264 The
Advisory Committee to the Federal Rules of Evidence also rejected any radical reform of
the rules concerning hearsay. As for the 1898 Massachusetts law admitting the hearsay
declarations of persons deceased at the time of trial, the Committee concluded that was
"unconvinced ofthe wisdom ofabandoning the traditional requirement ofsome particular
assurance of credibility as a condition precedent to admitting the hearsay declaration of

an unavailable declarant."
265 The modest goal of the Advisory Committee was to

"encourage growth and development in this area of the law, while conserving the values

and experience ofthe past as a guide to the future."
266

The result, depending on how you
want to count, is between twenty-eight and thirty-seven "exceptions" to the rules on
hearsay.

267

Included as one of those exceptions was an exception for business records.268 The
Advisory Committee explicitly took issue with Frank's conclusion that the exception

implicitly required the absence of a motive to misrepresent. It concluded that "absence

ofmotive to misrepresent has not traditionally been a requirement of the rule; that records

might be self-serving has not been a ground for exclusion."
269

But the rule itself

capitulated to the long extant fear of false evidence. As drafted and as enacted, the Rule
permitted exclusion if "the source of information or the method or circumstances of

preparation indicate lack of trustworthiness."
270

In the early twentieth century, Wigmore

had tried to make the subject of hearsay cohere by "discovering] in each of the

exceptions something which he calls a guaranty of trustworthiness," an effort Morgan

believed disastrously wrong.
271 A circumstantial guarantee of trustworthiness amounted

to "nothing more than a situation in which the ordinary person in making the declaration

would usually desire to tell the truth or would have no motive to falsify."
212

But the

danger of insincerity was only one of three important hearsay dangers, and the least

important. Most importantly, trustworthiness was not guaranteed simply because the

declarant had no motive to falsify; determining trustworthiness required an assessment of

the declarant's perception and memory, and Wigmore's unified theory of hearsay

264. Spencer Gard, The Uniform Rules ofEvidence, 3 1 TULANE L. Rev. 1 9, 23 ( 1 956).

265. Committee on Rules of Practice and Procedure, Preliminary Draft ofProposed Rules ofEvidence

for the United States District Courts and Magistrates, March 1969, 46 F.R.D. 161, 326 (1969) [hereinafter

Proposed Rules]. The Committee was thus rejecting a proposal advocated at one time or another by John

Appleton, James Bradley Thayer, John Henry Wigmore (in the Commonwealth Fund proposal), Eddie Morgan,

John M. Maguire, and Charles T. McCormick.

266. Id. at 328.

267. There are twenty-four exceptions to the hearsay rule in Fed. R. Evid. 803 and five exceptions in

Fed. R. Evid. 804. Because one exception is duplicated in Rules 803 and 804, one can count a minimum of

twenty-eight exceptions. If you count, in addition to all of the exceptions in Rules 803 and 804, the

"exceptions" (the Federal Rules simply define them as not hearsay) found in Fed. R. Evid. 801(d), you reach

thirty-seven exceptions.

268. Fed. R. Evid. 803(6).

269. Proposed Rules, supra note 265, at 360-61 (citation omitted).

270. Proposed Rules, supra note 265, at 346; FED. R. Evid. 803(6).

27 1

.

Morgan, Code ofEvidence, supra note 54, at 694.

272. Morgan, Code ofEvidence, supra note 54, at 694 (emphasis added).



226 INDIANA LAW REVIEW [Vol. 28: 1 83

exceptions failed by emphasizing the element of sincerity at the expense ofperception and

memory.
273

Morgan believed Wigmore's effort to find a guarantee of trustworthiness in
each recognized exception to hearsay was undertaken in the fallacious belief that the

cause for the rules of hearsay, and more generally, the exclusionary rules of evidence, was

the existence of the jury.
274

For all its talk about the historical derivation of the rule, the

Advisory Committee's inclusion in Rule 803(6) of the "trustworthiness" guarantee

element accepted Frank's view that the jury could not be trusted to assess evidence in

which there was some motive to falsify. Thus was reform strangled.

Conclusion

Thayer's desire for a "system of evidence simple, aiming straight at the substance of

justice, not nice or refined in a its details, not too rigid, easily grasped and easily applied

simple rules"
275

is no closer to us than it was to lawyers practicing in Thayer's day. It

may be that such rules are beyond the law of evidence, particularly in an age in which
insights from economics, game theory, probability theory and communication theory are

suggested for the reform ofhearsay and other aspects of the law ofevidence. We may do
no better than Learned Hand: "The truth is that no rules in the end will help us."

276

To end as I began, I quote Judge Abruzzo, in his instructions to the jury in Hoffman

v. Palmer. After summarizing the testimony of the parties, Abruzzo concluded: "Those

are the stories, gentlemen. Both ofthem can't be true, can they? Either one of the stories

must be true, and the other one not. It will become your duty to reconcile the testimony,

to analyze it, and put your fingers on where the truth is."
277

273. Morgan, Code ofEvidence, supra note 54, at 694.

274. Morgan, Code ofEvidence, supra note 54, at 694. See also Morgan, supra note 222; Edmund M.

Morgan, The Hearsay Rule, 12 WASH. L. REV. 1,1,11-19 (1937).

275. THAYER, supra note 30, at 529. Both McCormick and Morgan also wished for simple,

understandable rules of evidence. See McCormick, supra note 242, at 581 ("The final yield will be the

acceptance by national and state courts of the task of embodying in rules of court a rational, simplified code of

evidence."); Morgan, supra note 243, at 609 (suggesting the drafting of evidence rules like the "harmonious,

simple and easy of application" rules of civil procedure).

276. Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter, in 3 LECTURES ON

Legal Topics 87, 104 (1926) (published address given on November 17, 1921, by Hand, then a United States

District Judge).

277. Record, supra note 59, at 424.