Diaries And Hearsay: Gender, Selfhood, And The Trustworthiness of Narrative Structure

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Temple Law Review


In the first of four parts, this Article begins with some literary and legal definitions of a "diary," including a discussion of the significance of the diary form in the metaphysics of selfhood. Next, this Article explores the issue of gender and diaries. Third, this Article examines the interplay between narrative structure and truth by analyzing the juridical rhetoric concerning diaries in case law and in the Federal Rules of Evidence. This latter analysis includes showing that diary evidence in criminal cases clusters in one of two logical categories: (1) Defendants' Diaries-a defendant's diary in a criminal case, where the defendant typically raises Fourth and Fifth Amendment arguments concerning the valued private enclave that is a diary, in order to keep out what would presumably be strong evidence against him ("him" is accurate, since in these cases the defendants are generally male); or (2) Victims' Diariesa victim's diary in a criminal case, where the prosecutor tries to use a victim's diary to show past abuse (overwhelmingly, the diaries in this category are of wives or girlfriends who have been murdered, or of young girls writing in their diaries about being sexually abused). Courts have been all over the map in making evidentiary rulings on diaries, partly, of course, because of different fact patterns and contexts, but also and significantly because of cultural assumptions about a form that has been heavily coded as feminine. Finally, this Article concludes that descriptions of abuse in diaries of now deceased battered women should be admissible, either under the California exception or under the residual exception in the Federal Rules, because such writings carry a heavy presumption of trustworthiness.

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Winter 2000