Hearsay

My law professor once said that Lawyers are the mages of the modern day because we use archaic language to draw forth the coersive powers of the State.

Most students of the law enter school believing they will be taught the secret language of the law and will emerge knowing how to understand the arcane Latin sounding rules only understood by other legal practitioners. Often, they find their education disappointing because many of the rules they encounter sound fairly intuitive and easy to understand, depending more on the reasonableness of the average person and less on powers of Latin interpretation.

The Hearsay Rule is not one of those intuitive rules. It is a much despised rule, one which has risen in the annals of legal scholarship to be as hated as the Rule against Perpetuities. So dust off your jackets and be prepared to learn some intricacies. On the upside, once you master this arcane and tricky little rule, you will be able to amaze your friends and astound your employers with your insight.

We will begin by discussing the rationale behind the Hearsay Rule and then will move into the rule itself.

Growing up there was a game we used to play called Telephone. In this game someone whispered a sentence into one persons ear, who passed the message to another, and another, etc. Whomever was at the end of the line got to relay the message and everyone would laugh at the difference between the final message and the original one.

Telephone adequately outlines part of the rationale for the Hearsay Rule. We are concerned with the manner in which information changes as it passes from person to person and as such we prefer to have the original speaker testifying in court, as opposed to someone who heard him speak.  We want to talk to the people who witness things first hand, to learn what they saw directly from them, and judge their countenance when they tell us what they saw.

Another basis for the Hearsay Rule is nicely displayed in the Trial of Sir Walter Raleigh, an infamous proceeding traditionally credited with launching the development of the Hearsay Rule and the Confrontation Clause. Raleigh was tried for treason, accused of engaging in a plot to remove James I from the throne and place Lady Arabella Stuart in his place. The primary witness against Raliegh, Cobham, had been interrogated in the Tower of London and swore a confession that he later recanted. Raleigh asked the court repeatedly to bring Cobham to him during trial that he may cross-examine him. His request was denied and though his life was on the line, all of Cobham’s statements were allowed in against Raleigh without Raleigh being given a chance to question him.

Sir Walter Raleigh:  I have already often urged the producing of my Lord Cobham, but it is still denied me.  I appeal now once more to your Lordships in this:  my Lord Cobham is the only one that hath accused me, for all the treasons urged upon me are by reflection from him.  It is now clear that he hath since retracted; therefore since his accusation is recalled by himself, let him now by word of mouth convict or condemn me.  Campion, the Jesuit, was not denied to have his accusers face to face.  And if that be true which hath been some labored all this day, that I have been the setter-on of my Lord Cobham, his instigator, and have infused these treasons upon him, as hath been said, then have I been the efficient cause of his destruction; all his honours, houses, lands, and good, and all he hath, are lost by me; against whom, then, should he seek revenge but upon me? and the world knoweth him as revengeful of nature as any man living.  Besides, a dying man is ever presumed to speak truth:  now Cobham is absolutely in the King’s mercy; to excuse me cannot avail him, by accusing me he may hope for favour.  It is you, then, Mr. Attorney, that should press his testimony, and I ought to fear his producing, ifall that be true which you have alleged.

The court’s admission of testimony against Mr. Raleigh without the production of the witnesses behind that testimony produced an uproar that many attribute to the creation of the Confrontation Clause and the Hearsay Rule.

So, now you know the thoughts behind Hearsay, so what the heck is it?

FRE 801 defines Hearsay as “an out-of-court statement, written or oral, which is offered to prove the truth of the matter asserted in the statement. As short-hand you will often hear “an out of court statement offered for it’s truth.”
Terminology:

Declarant: The person making the statement.

What are the three elements of the Hearsay Rule?

A statement will be considered hearsay if it is:
1. An assertive statement
2. Made by an out-of-court declarant
3. and is offered to prove the truth of the matter asserted therein.

An “assertive statement” is the intentional communication of fact. An assertive statement can be oral, written, or non-verbal conduct if it was intended to be an assertion. The intention to communicate a fact is what defines assertive statement. Therefore even silence can be an assertive statement, if one would normally speak at such a time and instead the declarant doesn’t speak. Even written documents made under oath, such as affidavits or notarized statements, are subject to the ‘hearsay rule’. (Focus on what the offered statement is asserting, not what the parties are asserting in their claims.)

In order for the statement to satisfy the “out-of-court declarant” element of hearsay, very simply stated, the statement must have been made outside of the courtroom that the present proceeding is taking place in — meaning that if the statement was made in another courtroom, it is still made by an “out-of-court” declarant. (However, some “out-of-court” statements under oath may still be admissible as a declaration against interest.) Do not make the mistake of thinking that all statements made in any court are not hearsay, if the statement was made under oath in another court and not the one you are in, it’s still an out of court statement.

Offered for it’s truth. An out of court statement may or may not be hearsay depending on the purpose for which it is offered. If the statement is being offered to prove the truth of what it asserts, then it becomes hearsay. When offered for any other purpose the statement is not hearsay.

Okay, here is the counter-intuitive part:  The Hearsay Rule deals with concerns about the reliability of out of court statements, not with concerns about whether or not the out of court statements were made. Therefore the hearsay analysis is usually unchanged by the strength of the evidence offered. For example: A tape recording of the out of court statement, even fully authenticated, is still hearsay, if it is an assertion offered for it’s truth. As is a signed and notarized assertion. Hearsay deals with our concerns about confrontation and the inferences juries draw from out of court statements, not with our ability to prove the existence of or strength of the evidence we are offering.

One of the reasons we are so concerned with hearsay statements is that each statement offered in court, regardless of whether it is hearsay or not, is subject to error.  Every statement we offer in court has the potential to be based on faulty memory, poor articulation, lies or insincerity, or a lack of perception. Out of court statements are therefore more concerning, because the statements cannot be cross-examined, and therefore they cannot be tested for their truth by the opposing side.

Determining whether an out-of-court statement is hearsay is fairly simple to do. First, ask whether or not the statement must be believed to be relevant. In other words, is the statement only relevant if it is true? If the answer to that question is “yes,” then the out-of-court statement is hearsay, if the answer is no, then it is not hearsay.

There are a variety of reasons why an out of court statement might be offered to prove something other than it’s truth. For example, words have power in the law and quite often the utterance of words is a legal act, or a verbal act. If you accept a contract to mow your neighbors lawn, your verbal acceptance is an act that evidences the existence of a contract. If you get married, the statement “I now pronounce you man and wife” has the power of creating a unity of two previously separate people. Therefore the existence of these words in court is often to show the effect on the listener, the existence of a contract, or other significant legal fact, as opposed to being offered for their truth. As the words are not offered for their truth, they are not considered Hearsay.

The FRE also includes rule delineating instances when out of court statements offered for their truth are Non-Hearsay. These instances concern admissions by parties to the case and they are non-hearsay in part because the party is present in court, and therefore the concerns regarding confrontation are lessened.

Party admissions are statements made by a party in a lawsuit which are offered by the opponent. Though the simplest form of admission is a statement made by the opposing party in either his individual or representative capacity, Rule 801(d)(2) provides for a number of vicarious admissions (statements of a declarant other than the party opponent) which are attributed to the party opponent because of either the party’s adoption of the statement or because of some relationship between the party opponent and the declarant.

The Hearsay Rule has a number of exceptions to it as well, and these exceptions will be discussed in further articles.

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Sources for this Article include:

Evidence, Cases, Commentary, and Problems. David Skanlsky

Prof. Karen Steinhauser’s Evidence Class, University of Denver Sturm College of Law

The Federal Rules of Evidence.

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About Misty Ewegen

I am a writer, an attorney, an educator, and the Legal Programs Director for Forensic Pursuit. I develop and present CLE classes on the intersection between E-discovery, Computer Forensics, Ethics, and the Law. I am also an attorney in private practice in the areas of family law, environmental law, and child advocacy.
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