The Hearsay Rule and the Hillmon Exception

By Marianne Wesson
University of Colorado Law School


The hearsay rule is nearly as old as the law of evidence. Observed nearly everywhere in the United States and the U.K., the rule prohibits the use of statements made outside of court as evidence that the statements are true. Here’s how it works: suppose a party to a lawsuit wants to prove that the stop sign at Fourth and Main was obscured by a tree branch on June 3rd, 2004 . It would be perfectly proper for the party to call as a witness Carol, to testify under oath that she inspected the intersection on that date and saw that the stop sign was obscured by a tree branch. It would, however, violate the hearsay rule for the party to call as a witness Susan, to testify that she has never seen the intersection, but Carol told her that she examined it on June 3rd and noted that the stop sign was obscured by tree branches. In federal courts in the United States , the hearsay rule is found at FRE (Federal Rule of Evidence) 802. (Hearsay is defined in Rule 801.)

The hearsay rule is notorious, however, for its exceptions. For example, if in the suit about the stop sign, the defendant wants to introduce the plaintiff’s statement (generally known as an admission) that the sign was obscured by a tree branch on the pertinent day, this evidence is allowed, on the theory that a party’s own statements are admissible again him or her even if they are made out of court. (In the Federal Rules of Evidence, this exception is found at FRE 801(d)(2)(A).)

There are numerous other exceptions, most of them resting either on some variant of the admission exception or (the most numerous category) on the presumed trustworthiness or reliability of the out of court statement. For example, most dying declarations statements by persons who know or believe they are about to die, about the circumstances surrounding their death are admissible, on the theory that (as the Victorians put it) no man would meet his Maker with a lie upon his lips. (FRE 804(b)(2)). Statements against the interest of the person who made them (for example confessing to a crime, or admitting that the out-of-court declarant owed a debt or had injured someone) are often an exception to the hearsay rule, on the premise that a speaker would have no incentive to make a false statement so much to his or her disadvantage. (FRE 804(b)(3)). Most regularly kept business records are admissible despite their hearsay nature, because no business could long remain operational if its records were not kept accurately and truthfully. (FRE 803(6)).

But the exception that the Supreme Court invented in the Hillmon case an exception for statements, made out of court, that describe the speaker’s or writer’s intentions’ does not seem to me to qualify for this presumption of trustworthiness or reliability. On the contrary, in my opinion it is very easy to lie about one’s intentions– statements about the speaker’s intentions are not especially trustworthy, but rather particularly unreliable. Why then would the Court have invented a rule that has so little justification in logic or policy?

It has been my theory that the Court acted as it did in the Hillmon case because it felt a tremendous pressure to come up with a reason to make the famous letters, ostensibly from Frederick Adolph Walters to his sister and to his fiance, Alvina Kasten, admissible. The letters were undoubtedly hearsay they were written outside of court, and offered to prove that their contents (I expect to leave Wichita on March 5 with a certain Mr. Hillmon) truly represented the intentions of the writer. The suggestion put forth by the insurance companies that the letters were business records was rightly rejected out of hand by the Court. If they were to be admissible, then some new exception to the hearsay rule must be found. And I believe the Court wanted them to be admissible because it believed (as do most who read the Court’s opinion) that the letters proved that John Hillmon was still alive, and that he and his wife were seeking to defraud the insurance companies after having murdered Frederick Adolph Walters.

From this stew of mystery and indignation and (as I believe) mistake, the Court created a rule of evidence that is still with us today. In the Federal Rules of Evidence, it is (part of) Federal Rule 803(3). It makes admissible an out-of-court statement about the speaker’s or writer’s intentions, a rule that makes no sense except as an effort to stop Sallie Hillmon’s lawsuit from succeeding.

But what if the Court were wrong? What if it is after all John Hillmon who rests in the grave? What would this discovery mean for the law of evidence?