The birthplace of this evidentiary nonsense was Selma in Dallas County, Ala. On Sunday, July 7, 1957, the clock tower of the courthouse fell into the courtroom. A newspaper article published in 1901 reported a courthouse fire during construction. In Dallas County v. Commercial Union Assurance Company Ltd., 286 F.2d 388 (1961), the Fifth Circuit held the article admissible hearsay even though it fit no hearsay exception of that era. (Probably the article would fit the present federal ancient documents exception.)

Today the feds have Evidence Rule 807:

Civil Procedure Rule 8.03 requires defense counsel to plead affirmative defenses in an answer. More precisely, counsel must "set forth affirmatively facts in short and plain terms relied upon to constitute" any listed affirmative defense. And the list is not exclusive, because it ends with: "and any other matter constituting an affirmative defense."

The list includes twenty defenses. Among those is comparative fault. When pleading this defense, counsel must include "the identity or description of any other alleged tortfeasors."

On the night of Tuesday, May 3, 1910, two pistol shots were heard in Lonsdale, a community northwest of Knoxville. One fatally wounded Gilbert May, who died the next evening.

Gilbert May (age 27) had been dating Mamie Miles (age early 20s). A neighbor of Miss Miles, Carl Still (age late teens), had a crush on her. He was mad at May for "beating his time." He told the owner of a soft drink stand that "if May didn't quit talking about him, he was going to have trouble."

We have more than two. They begin at Tenn. Code Ann.  §20-2-201 (dating back to 1887) and include the 1932 nonresident motorist statute ( §20-2-203). But herein we'll compare the two laws most frequently referred to as "long-arm" statutes.

By Jennifer Thompson-Cannino and Ronald Cotton with Erin Torneo | St. Martin's Press | $25.95 | 298 pages | 2009

Jennifer Thompson picked Ronald Cotton from a photo display and a lineup after being raped in 1984 while a student at Elon College in Burlington, N.C. Cotton was convicted. He served almost 11 years until freed by DNA and a confession from the rapist, Bobby Poole. That's the bad news.

For several decades I have read every opinion filed by our appellate courts. The most horrific is State v. Evangeline Combs and Joseph D. Combs (Tenn. Ct. Crim. App., Woodall, Sept. 25, 2002), perm. app. denied Jan. 27, 2003.

Professor Paine's review:

As many Journal readers know, I teach a Civil Procedure class to 1L's at UT each spring semester. So I was curious to read University of Memphis professor Andrew McClurg's book.

Four significant amendments take effect on July 1, 2009. First, Rule 404(a)(1) will create another avenue for the accused to open the door to admissibility of his character to prove conforming conduct.   If the accused launches an attack on the alleged victim's character for a particular trait, the prosecution in rebuttal can introduce evidence of that same trait in the accused's character.

Second, Rule 703 will contain this additional language:   "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Keep in mind that the expert's opinion is the admissible evidence. It can be based on reliable but inadmissible hearsay not fitting an exception. But usually the jury should not hear that hearsay.

Third, allow me to quote in full a brand new hearsay exception, Rule 803(26):

(26) Prior Inconsistent Statements of a Testifying Witness. " A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied:

(A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.       

(B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.

(C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness.

This rule was drafted by Commissioner Tom Thurman ("The Thurminator"), who prosecutes the worst guys and gals in Nashville. It may help place more of them behind prison walls. If so, good.

Fourth, the dying declaration hearsay exception in Rule 804(b)(2) is expanded for reasons I explained in my January 2008 article about Memphis triple murderer Stanley Puryear. No longer will the dying declarant need to be the victim of the homicide on trial. If a declarant facing imminent death is considered trustworthy, why should his statement be confined to a single trial?   Keep in mind that this is the oldest of hearsay exceptions.  

Occasionally a lawyer or judge fusses at me about the work product of the Advisory Commission to the Supreme Court on Rules of Practice and Procedure. I tell these fussbudgets that I am merely Reporter to the Commission and am not allowed to vote. Then I explain the procedure, which may be of interest to you readers.

We meet four times annually by video at five locations. Chairman Hugh Moore does a superb job of letting all of the 21 Commissioners have their say. Judicial advisors and random guests are invited to join in.

Edited by Judge Charles D. Susano Jr. | Tennessee Valley Publishers | $19.95 | 220 pages | 2009