Defense Introduced Mornings Times Article written approximate 58
It was an unsigned article.
Described a fire that occurred at two in the morning on June 9,
1901, while the courthouse was under construction.
The unfinished dome was in flames, but the courthouse itself was
Newspaper article was hearsay.
It was not a business record not an ancient document, nor was it
admissible under any recognized exception to the hearsay
Admitted The Article.
Rule 43(a) carries out that purpose by enabling federal courts
to apply a liberal, flexible
rule for the admissibility of evidence, unencumbered
by common law archaisms
G. & C. Merriam Co. v. Syndicate Pub. Co., 2
Controversy between dictionary publishers over the use of the
title 'Webster's Dictionary' when the defendant's dictionary
allegedly was not based upon Webster's dictionary at all.
The bone of contention was
whether a statement in the preface to the dictionary was
admissible as evidence of the facts it recited.
The requisites of an exception to the hearsay rule are
necessity and circumstantial guaranty of trustworthiness.
Wigmore Necessity Requirement
This requisite means that unless the hearsay statement is
admitted, the facts it brings out may otherwise be lost, either
because the person whose assertion is offered may be dead or
unavailable, or because the assertion is of such a nature that
one could not expect to obtain evidence of the same value from
the same person or from other sources.
Necessity is not to be interpreted as uniformly demanding a
showing of total inaccessibility.
But that necessity exists where otherwise great practical
inconvenience would be experienced in making the desired proof.
- Necessity In This Case
The newspaper article referred to an fire that occurred 58 years
before THIS trial.
Any witnesses would either be dead or have dimmed faculties.
Seems impossible that a witnesss testimony would not be as
accurate and reliable as a contemporary newspaper article.
Ancient Document Exception
After a long lapse of time, ordinary evidence regarding
signatures or handwriting is virtually unavailable, and it is
therefore permissible to resort to circumstantial evidence.
Here, the Selma Times-Journal article is almost two generations
The principle of necessity, not requiring absolute impossibility
or total inaccessibility of first-hand knowledge, is satisfied
by the practicalities of the situation before us.
Wigmore Trustworthiness Requirement
There are three sets of circumstances when hearsay is
trustworthy enough to serve as a practicable substitute for the
ordinary test of cross-examination:
Where the circumstances are such that a
sincere and accurate statement would
naturally be uttered, and
no plan of falsification be formed;
Where, even though a desire to falsify might present itself,
other considerations, such
as the danger of easy detection on
the fear of punishment, would probably counteract its
Where the statement was made under
such conditions of publicity that an error, if it had
occurred, would probably have been
detected and corrected.
Trustworthiness In This Case (Not conceivable)
It is inconceivable to us that a newspaper reporter in a small
town would report there was a fire in the dome of the new
courthouse -- if there had been no fire.
Without Motive to Falsify
He is without motive to falsify, and a false report would have
subjected the newspaper and him to embarrassment in the
Article is more reliable
To our minds, the article published in the Selma Morning-Times
on the day of the fire is more reliable, more trustworthy, more
competent evidence than the testimony of a witness called to the
stand fifty-eight years later
It is admissible because it is necessary and trustworthy,
relevant and material, and its admission is within the trial
judge's exercise of discretion in holding the hearing within