Madeline Smedley
87 Geo. Wash. L. Rev. 207
The Advisory Committee on the Federal Rules of Evidence is considering amending Federal Rule of Evidence 801(d)(1)(A) to make prior inconsistent statements captured on audiovisual devices admissible for their substantive value rather than solely for impeachment purposes. Although this proposed change allows litigants to leverage the benefits of digital technology, the proposal lacks the reliability guarantee inherent in the current hearsay rule, meaning that there is little or no indication that the declarant was speaking seriously or accurately. This Note proposes that any amendment to Federal Rule of Evidence 801(d)(1)(A) include a requirement that the declarant expressly consented to being recorded. Because people are less likely to be joking and more likely to speak precisely when they know that they are being recorded, such an express-consent provision would help ensure that the substance of any statements admitted under the amended rule is sufficiently reliable. By imposing such a requirement, this Note’s proposal preserves the hearsay rule’s primary purpose while allowing the rule to evolve in recognition of the advantages of modern technology.
