e common law of evidence and the Model Code of Evidence. The common law of evidence provided for exceptions based upon necessity and circumstantial guaranty of trustworthiness. These exceptions were articulated by Learned Hand in G & C Merriam Co. v. Syndicate Publishing Company. That case involved a published statement by the deceased creator of a dictionary as to the literary origins of this dictionary. The defendant in this civil case sought to introduce the statement as proof of the origins of his own dictionary, despite the fact that the veracity of the statement could not be substantiated. Unable to find an express exception in common law which would make the statement admissible, Judge Hand nevertheless held that the statement met the common law requirements of necessity and circumstantial guaranty of trustworthiness. He reasoned that the statement was made by man now dead about his own conduct in the compilation of his own work. In addition, the maker of the statement had no motivation for fabricating the statement (since he clarified the basis for the dictionary).
By the end of the 1930s, the American Law Institute began working on a Model Code of Evidence. The hearsay rule promulgated in the Code created a broad exception to the hearsay rule which allowed the admission of hearsay which did not fit any of the specific exceptions but was based upon necessity. This exception allowed hearsay if the judge found the declarant is "unavailable as a witness" or "is present and subject to cross examination." The Model Code was unpopular and thus this rule was not adopted by state or federal jurisdictions. In 1953, the Uniform Rules of Evidence were completed. This code allowed hearsay statements made by unavailable declarants describing a matter recently perceived and made in good faith prior to the commencement of the action. However, this Code also failed to gain legislative acceptance.
In 1961, Chief Justice ...