Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception
As the culmination of a decade of rulemaking, in 1975 Congress enacted the Federal Rules of Evidence, which include in rule 804(b)(3) an exception to the hearsay rule that allows federal courts to admit statements against penal interest. Having reviewed previously unpublished memoranda and nonpublic tape recordings of the deliberations of the Advisory and Standing Committees to the Judicial Conference and the Special Subcommittee on Reform of Federal Criminal Laws of the House Judiciary Committee, Professor Tague explores the development of rule 804(b)(3), one of the more controversial rules that emerged from that rulemaking process. After analyzing rule 804(b)(3) and describing under what circumstances a penal interest statement is admissible, Professor Tague discusses why the penal interest exception of rule 804(b)(3) is unconstitutional. As a result of his study, Professor Tague concludes that the Supreme Court should revise the present rulemaking process to ensure that the process evolves as a professional, dispassionate, and unpoliticized approach to effectuating needed changes in the law.
69 Geo. L. J. 851-1013 (1981)
Scholarly Commons Citation
Tague, Peter W., "Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception" (1981). Georgetown Law Faculty Publications and Other Works. 703.
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