Last Friday the Ninth Circuit issued the latest in a long line of opinions calling attention to a circuit split over the appropriate standard of review for hearsay rulings. See Wagner v. Cnty. of Maricopa, No. 10-15501 (9th Cir. Nov. 16, 2012). Several appellate panels have considered whether a statement was hearsay de novo, while panels within other circuits have reviewed such decisions for an abuse of discretion. It is also worth noting that both the Sixth Circuit and the Ninth Circuit have issued conflicting decisions on the question.
A. De Novo Review
- United States. v. Ferguson, 653 F.3d 61, 86 (2d Cir. 2011);
- Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378-381 (6th Cir. 2009); but see Trepel v. Roadway Exp., Inc., 194 F.3d 708, 716-17 (6th Cir. 1999) ("Therefore, in disregard of our heretofore well-settled precedent that hearsay evidentiary rulings are reviewed de novo, we shall review the district court's ruling for an abuse of discretion." (citation omitted)).
B. Review for Abuse of Discretion
- Wagner v. Cnty. of Maricopa, No. 10-15501 (9th Cir. Nov. 16, 2012); but see Mahone v. Lehman, 347 F.3d 1170, 1173-74 (9th Cir. 2003) ("We review the district court's construction of the hearsay rule de novo . . . ." (quoting Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir. 2002)));
- United States v. Brown, 669 F.3d 10, 22 (1st Cir. 2012);
- United States v. Lopez-Garcia, No. 98-2252 (10th Cir. Aug. 18, 1999).
According to the Sixth Circuit, the Supreme Court has already settled the matter “in categorical terms: ‘[A]buse of discretion is the proper standard of review of a district court’s evidentiary rulings.’” United States v. Clay, 667 F.3d 689, 703 (6th Cir. 2012) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)).