This post is for those studying for the bar exam as well as current practitioners. If you’re studying right now you won’t appreciate this example. But to the lawyers out there, tell me if this scene sounds familiar:
Opposing Counsel: Sir, did you ever have any conversations with Mr. Jones about the car accident? Witness: Yes. Opposing Counsel: What did Mr. Jones tell you? You: Objection Your Honor. Hearsay. Opposing Counsel: Your Honor, Mr. Jones is here to testify. Judge: Overruled.
Assuming Mr. Jones’ statement is being admitted to prove the truth of the matter asserted, it is hearsay. It is an out-of-court statement offered to prove the truth of the matter asserted. When I was in law school, that’s the definition we were taught. Any out of court statement, other than that made by the declarant while testifying, offered to prove the truth of the matter asserted. Under the fancy new Federal Rules, it’s even clearer:
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Nonetheless, I regularly hear responses like the one above. Or my personal favorite, “Your Honor, he’s the one who said it.” And an alarming percentage of the time, those answers carry the day. Which makes me wonder: do attorneys really not know the law? Are judges that confused by Rule 801? Or do attorneys just make these arguments because they know judges will buy them? And do judges allow these arguments to stand because they think the evidence should come in, regardless of the law?
These are questions I cannot answer. But I can offer help.
This is the first part of the hearsay test. Are you dealing with a statement? If so, which part of the testimony is the statement? Let’s use an example (a hypothetical, you might call it). An eye witness is testifying about an explosion at a nuclear plant. The witness was standing around with other employees and some managers. The witness overheard a manager, Ms. Smith, say “I knew we should have locked the blast doors better. Now the whole plant will go up.” The witness looked down at his geiger counter and sure enough, it was making that really loud beep that means something bad will happen.
At trial, the eye witness is called to testify. Let’s look at some possible testimony:
Attorney: Were you standing outside the plant? Witness: Yes. Attorney: Was Ms. Smith there? Witness: Yes. Attorney: Did she say anything before the plant exploded? Witness: Yes. She said "I knew we should have locked the blast doors better. Now the whole plant will go up.
The statement is what Ms. Smith said at the plant. That’s it. But that’s not the end of our inquiry. To determine if this line of questioning can proceed, we have to figure out if it is an out of court statement.
Out of Court Statement
It sounds obvious. Of course the statement was not made in court. But what about the witness’ testimony? Isn’t that being made in court? Yes, it is. But that’s why we approached the issue in this order. The first question is always: what is the statement. In this example, the statement is what Ms. Smith said at the scene. That statement was made outside of court. And therefore it is hearsay.
The Issue with Confrontation
Some attorneys, as my opening illustrates, believe that if the witness will testify to her own statement, then another witness should be allowed to as well. This does not address the rule against hearsay at all. Instead, it confuses hearsay with the Confrontation Clause. The two doctrines are intertwined, but the tests are different.
Whether a witness will testify or not does not change the fact that a statement is hearsay (although it will dictate which exceptions may apply).
The Truth of the Matter Asserted
Now that we know what the statement is, and we know it is out of court, we have to find out why the statement is being offered into evidence. If it is for the truth of the matter asserted, then the statement is hearsay (absent some exemptions which we won’t discuss here).
Of course this is the trickiest question. What the heck is the truth of the matter asserted? My favorite example involves an allegedly crazy person. This person shouts from the roof top “I am the Lord! Obey me!” At a competency hearing, numerous eye witnesses are called to testify to this statement. If the attorney called those witnesses to prove that this person was in fact Morgan Freeman, then the statement is offered to prove the truth of the statement. Namely, that this person is god. But if, in a more likely scenario, the statement is offered to prove that the person is crazy, then it will be admissible. It is not trying to prove the truth of the statement itself, but is being offered to draw a conclusion.
This short walkthrough doesn’t usually end the inquiry. There are myriad exceptions and exemptions to watch out for. My college mock trial coach started the lesson on hearsay by explaining it’s one of the hardest evidence rules to master. But knowing the basics can take you pretty far.
As for becoming a master, I’ll leave that to smarter people. I spend my time just trying to wrap my head around character evidence. Rule 404 is just crazy.