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Understanding the Hearsay Rule: Definition, Exceptions, and Loopholes, Lecture notes of Law

Haute ècole Lèonard de VinciLaw

The Hearsay Rule is a legal concept that defines a statement made outside of a courtroom, which asserts facts and is offered in court to prove the truth of those facts. the definition of hearsay, its exclusions, and the exceptions that make such statements admissible in court. It also discusses the concept of loopholes and the role of judges in determining admissibility. Students may find this document useful for understanding the complexities of the Hearsay Rule, particularly in the context of legal studies.

Typology: Lecture notes

2021/2022

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14. HEARSAY
A. INTRODUCTION
1. What is the Hearsay Rule?
Hearsay is a statement that was made outside of the courtroom, asserts facts, and is now
offered in court to prove the truth of the facts asserted. The statement may have been oral,
written, or even nonverbal. Hearsay works like this:
!Hearsay is defined in the first part of Rule 801. The definition is quite specific, and
many things people say or write down do not fit the definition and are not subject to the
hearsay rule at all.
!The second part of Rule 801 arbitrarily excludes a second bunch of things people say or
write down from the definition of hearsay, so they are not subject to the hearsay rule
either.
!Those out-of-court statements that are defined as hearsay are declared inadmissible by
Rule 802, unless they fall within an exception
!Rules 803 and 804 contain thirty exceptions that cover just about every kind of
statement a person is likely to make that would be relevant at trial.
This leads us to Tanford’s two rules of hearsay
RULE NUMBER ONE: Almost everything that looks like hearsay is eventually admissible
if you are clever enough to find the right loophole among the several hundred created by the
rules and by court decisions. The hearsay rule is a lawyer's dream. It is a rule consisting
almost entirely of loopholes.
RULE NUMBER TWO. No matter how hard you try, you will never actually understand
hearsay. Luckily, neither will anyone else, including the judge, so you will not be at a
disadvantage. Indeed, many students get an A on the exam without getting a single one of
the hearsay questions right.
2. How the Game is Played
Step (1). Everything in the trial is running smoothly until some idiot witness mentions
something the witness heard or read. The opposing lawyer, in compliance with rule #2, makes a
hearsay objection. If the lawyer actually understood hearsay, of course, he or she would not make
a hearsay objection because the lawyer would know that the evidence was in fact admissible
through some loophole under rule #1.
Step (2). Now it's your job to come up with a reason why your evidence should be admitted
-- the game is to "name that loophole." There are four types of loopholes:
a) Definitional. The evidence does not fit the definition of hearsay under Rule 801(a)-(c).
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Download Understanding the Hearsay Rule: Definition, Exceptions, and Loopholes and more Lecture notes Law in PDF only on Docsity!

14. HEARSAY

A. INTRODUCTION

  1. What is the Hearsay Rule? Hearsay is a statement that was made outside of the courtroom, asserts facts, and is now offered in court to prove the truth of the facts asserted. The statement may have been oral, written, or even nonverbal. Hearsay works like this: ! Hearsay is defined in the first part of Rule 801. The definition is quite specific, and many things people say or write down do not fit the definition and are not subject to the hearsay rule at all. ! The second part of Rule 801 arbitrarily excludes a second bunch of things people say or write down from the definition of hearsay, so they are not subject to the hearsay rule either. ! Those out-of-court statements that are defined as hearsay are declared inadmissible by Rule 802, unless they fall within an exception ! Rules 803 and 804 contain thirty exceptions that cover just about every kind of statement a person is likely to make that would be relevant at trial.

This leads us to Tanford’s two rules of hearsay

RULE NUMBER ONE: Almost everything that looks like hearsay is eventually admissible if you are clever enough to find the right loophole among the several hundred created by the rules and by court decisions. The hearsay rule is a lawyer's dream. It is a rule consisting almost entirely of loopholes.

RULE NUMBER TWO. No matter how hard you try, you will never actually understand hearsay. Luckily, neither will anyone else, including the judge, so you will not be at a disadvantage. Indeed, many students get an A on the exam without getting a single one of the hearsay questions right.

  1. How the Game is Played Step (1). Everything in the trial is running smoothly until some idiot witness mentions something the witness heard or read. The opposing lawyer, in compliance with rule #2, makes a hearsay objection. If the lawyer actually understood hearsay, of course, he or she would not make a hearsay objection because the lawyer would know that the evidence was in fact admissible through some loophole under rule #1. Step (2). Now it's your job to come up with a reason why your evidence should be admitted -- the game is to "name that loophole." There are four types of loopholes: a) Definitional. The evidence does not fit the definition of hearsay under Rule 801(a)-(c).

b) Exclusions. The evidence is simply excluded from the definition of hearsay by Rule 801(d) for no particular rational reason. c) Exceptions. The evidence falls into one of the specific exceptions listed in Rules 803- Step (3). The objecting attorney responds that the proponent has picked the wrong loophole. The two sides argue about the loophole, not the hearsay rule itself. Step (4). The judge gets tired of the whole thing, invokes rule #2, and rules randomly, sometimes admitting the evidence and sometimes excluding it. Good judges generally admit the hearsay because of rule #1.

  1. Hearsay Within Hearsay And just in case you thought this was going to be easy, we have the hearsay within hearsay rule. If one hearsay statement includes additional hearsay (e.g., witness heard it from John who heard it from Aretha who heard it through the grapevine and wrote the whole thing down), the proponent must find a loophole for each declarant. A written document is almost always hearsay within hearsay because the document itself is a statement, and it contains factual statements from actual human beings.
  2. Distinguishing Hearsay from Lack of Personal Knowledge. A hearsay objection is made when a witness relates the actual content of an out-of-court communication. When a witness’s testimony is “based on hearsay,” e.g., based on having read a document or heard others recite facts, the proper objection is that the witness lacks personal knowledge.
  3. A Witness's Own Prior Statements are Usually Hearsay A witness’s own prior statements are treated the same as anyone else’s statements. A witness on the stand may not testify to what she previously told the police any more than the police could testify to what she previously told them. The best context in which to understand this strange concept is with written documents. For example, if an eyewitness testifies at trial, her diary, her signed statement to the police, and her deposition are not automatically admissible. Each is a unique out-of-court utterance that is subject to a hearsay objection.

B. RESPONSES TO HEARSAY OBJECTIONS

  1. First Line of Defense: What the Witness Said or Wrote Does Not Fit the Definition of Hearsay. To be hearsay, testimony must describe the content of an utterance that asserts facts and is offered to prove that the facts are true.

A. No content. Evidence is hearsay only if it has substantive content. Testimony by a witness that she heard Bill shout or saw a document in his hand does not describe the content of the shout or

significance, sometimes called “verbal acts,” are not considered hearsay. They assert legal duties and liabilities, not facts. For example: a) The words constituting slander or libel. b) The words in a contract. c) Words by which a conspiracy was furthered. d) Statements that help establish probable cause to make an arrest. e) A felony judgment entered in a criminal case.

C. The Statement is Not Being Offered to Prove the Truth of the Facts Asserted. (1) In general. Even if an utterance contains a factual assertion, it is only hearsay if the evidence is offered to prove the truth of that factual assertion. You can therefore respond to a hearsay objection by arguing that the statement helps prove a material fact other than the fact asserted in the statement. The difficulty is articulating exactly what alternative relevant issue a statement helps prove. You can’t just mutter "Not for its truth." Common examples: a) Impeachment. A prior inconsistent statement is not hearsay if offered to impeach a witness by showing he can’t keep his story straight. For all we know, both statements are false. A statement giving a reason the witness is hostile toward a party is not hearsay if we don’t care if it’s true but only that it shows the declarant's bias. We’re pretty sure someone doesn’t like Obama is they claim he is Kenyan Muslim, regardless of whether the facts are true or false. b) Rehabilitation. If a prior inconsistent statement was used to impeach a witness, other pertinent parts of it may be used on redirect for the purpose of rehabilitation. The original testimony was offered for its truth, the cross-examination made credibility an issue, and the consistent statements are offered to show credibility. c) State of mind. If a person's state of mind is relevant, statements by other people that may have affected it are admissible. For example, if a defendant pleads self defense, a threatening statement by the victim is relevant to show his reasonable belief in the need to use force, even if the threat was false. d) Insanity. When insanity or mental competence is an issue, statements that demonstrate rational or irrational thought are relevant to the question of mental state. If a person constantly repeats the statement, “I am the keymaster” while wearing a colander oj his head, it tells us more about his sanity that whether he is in fact a keymaster. e) Identification. A document whose content is relevant circumstantial evidence of identity is not hearsay. For example, a note to the defendant from his wife saying “The school called and Jamie’s in trouble again,” found inside a briefcase containing drugs is relevant to prove the defendant possessed the case. f) Notice and knowledge. A statement describing a problem may be admissible to show a defendant had notice of unsafe conditions. For example, a work order dated a year before an accident describing broken pavement may be admissible not to prove the

pavement’s actual condition but to show the city had notice of a dangerous condition. g) Other half of a conversation. A statement designed to elicit a response, whether in the form of a question or comment, is generally not hearsay when it is the response that is important. For example, statements by a police informant in a controlled drug buy that he wants to buy drugs may be primarily designed to prompt the defendant to speak and act, and so are not offered for the truth of whether the informant actually wanted to buy drugs. h) Rule of Completeness. When one side offers part of a document or conversation into evidence, the other side may introduce any remaining relevant, nonprejudicial parts which ought in fairness to be considered, in order to prevent distortion or taking a statement out of context. See Rule 106. The remainder is not hearsay. (2) Limiting instruction. The party against whom a hearsay is entered is entitled to an instruction to the jury that the statement may not be considered for its truth. (3) Rule 403. If a statement is offered for a limited purpose other than its truth, there is a high likelihood that jurors will consider it for its truth anyway. This a Rule 403 problem of confusing the issues and misleading the jury. If the probative value is low and the prejudicial effect high, a separate objection based on Rule 403 can be made. For example, if statements by a witness that he and the defendant are both gang members is offered to show bias, the likelihood is high the jurors will consider the defendant a gang member. It might be non-hearsay but objectionable under Rule 403.

  1. Second and Third Lines of Defense: Exclusions and Exceptions If you cannot find a reason why an utterance is not hearsay, you have two more lines of defense against a hearsay objection -- that it is excluded from the rule by 801(d), or fall into an exception from Rules 803 or 804. We will go through these in the next few classes.

*Now the hard part -- applying all this to actual situations. This is way harder than it looks. The only way you can hope to grasp any of this is to carefully and thoughtfully work through the problems.