Hearsay

What is it, and what isn't.

My law professor once said that lawyers are the mages of the modern day. We use archaic language to draw forth the coercive powers of the State. Most law students enter school believing they will now be taught how to understand these arcane rules. Often, they find their education disappointing because many of the rules they encounter seem more convoluted and less intuitive then many believed they would be.

The Hearsay Rule is one of these oft despised rules. It has risen in the annals of legal scholarship to be as hated as the Rule against Perpetuities. Though the study of this rule is rife with difficulty, once you master it you will be able to amaze your friends and astound your employers with your insight. (Or at least, manage to represent your clients properly in court.)

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

The primary purpose of the Hearsay Rule(s) is to limit the introduction of inaccurate testimony. If you have ever played a game of telephone you know how small facts can change as stories are shared from person to person. As one of the primary ways we bring evidence into the courtroom is through witness testimony finding ways to determine what is more reliable and less likely to be inaccurate was an important element in the creation of our evidence rules.

The rationale behind the rule against hearsay is that hearsay evidence denies the opponent the opportunity to cross-examine the person whose perception, memory, and sincerity are in issue.

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Rule 802. The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides otherwise:

• a federal statute;

• these rules; or

• other rules prescribed by the Supreme Court.

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Basic Hearsay 3 Step Analysis

• Is there an out of court statement?

  • Statement may be;

    • (a) oral,

    • (b) written,

    • or (c) conduct intended as a substitute for words. (Nodding your head, shaking your head, running your finger across your neck, flipping someone off, etc.)

• If so, what is it being offered to prove?

  • If offered to prove the truth of the matter asserted and we care about the credibility of the declarant, it is hearsay.

  • If offered to merely prove statement was made and we do not care if the declarant is lying or was mistaken, it is not hearsay.

• Does the probative value depend on the credibility of the declarant?

  • If yes, it is hearsay. If no, then it is not hearsay.