The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Monthly Archives: October 2014

Hearsay, Part Five: Five Ways to Make Living with Hearsay Easier

Posted On By

NITA’s blog theme is Hearsay? Say What? Recognize It; Use the Rule at Trial.

At NITA programs, we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves? This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.


Five Ways to Make Living with Hearsay Easier

written by guest blogger and NITA Program Director Professor Thomas Jay Leach

Laypersons who wander into a courtroom – and, let’s be honest, many students of Evidence – feel they have entered an alternate universe when Hearsay raises its ugly head.

  • “We’re not offering this evidence for the truth, Your Honor …” (oh, those lying lawyers again!).
  • “True, I will be able to cross the witness about what he told the police officer, but it’s still inadmissible hearsay under FRE 801(c).” (But I thought the problem with HS is, you can’t cross the speaker …?)

Lawyers, too, blanch when confronted with Hearsay. They dive into the depths of the lists of 8 exemptions (801(d)) and 28 exceptions (803 and 804), then, gasping for air, make a desperate grab for the life preserver (the catch-all rule, 807). The judge, as fearful of Hearsay as he is of reversal, mutters, “Well it may be Hearsay [code for “I am as lost as they are!”] but I’ll admit it for what it’s worth.”

RELAX! Life can be easier than this. When you know your witness will need to testify about what someone (including the witness herself) said before, or did before that was intended to communicate information (e.g., pointing out the suspect – waving to warn a pedestrian of an oncoming bus), you know you will likely face a Hearsay objection. Take the following 5 nostrums and call me in the morning.

RULE ONE: Is the speaker the opposing party or one of the four equivalents:

  • admission by adoption
  • representative
  • employee
  • co-conspirator?

If so, it’s not HS: 801(d)(2)(A)-(E). Say “Statement of the Opposing Party” and look smug. (You can look even smugger if you surprise your opponent with fact that Opposing-Party Statements are not subject to requirement of first-hand knowledge or opinion-rule restrictions. Adv. Comm. Notes to 801(d)(2); Mueller & Kirkpatrick, Evidence (4th ed., 2009) § 8.27, at 799-800.)

RULE TWO: is it one of three types of prior statements by a witness who is/has been on the stand subject to cross:

  • prior inconsistent statement under oath at trial, hearing, proceeding, deposition
  • prior consistent statement (see rule for limitations, and watch for likely December 2014 amendment)
  • statement of identification?

If so, it’s not HS: 801(d)(1)(A)-(C).

RULE THREE: Is it being offered for a non-hearsay use, i.e., “not for the truth,” but don’t utter those idiotic-sounding words in front of the jury; instead say, “It’s offered for ________ [fill in the blank from the following]:

  • witness’s unsworn prior inconsistent statement to show has told conflicting versions, therefore not credible
  • effect on listener/reader (often, but not always, phrased as “notice”)
  • verbal act/legally operative (meaning: the utterance itself, regardless of the speaker’s sincerity or accuracy, supplies the necessary ingredient of some proof in the case):
    • offer/acceptance in a contract case
    • threat in an extortion case
    • slander/libel: the allegedly slandering/libelous words
    • words of gift/loan
    • Adverse Possession: “I own this land” as words constituting a claim of right (BTW, last used in a US court in 1873)
    • conveyancing: the words in the deed
  • context: jury won’t understand an admissible portion of a communication exchange without hearing what preceded it
  • circumstantial evidence of the speaker’s state of mind – on second thought, skip this – no one understands it. If you want to understand it so you can show off and confuse your opponent and the judge (who will still rule against you), read Mueller & Kirkpatrick, Evidence (4th ed., 2009) §§ 8.19-20.

Caution: before you decide to rest content under RULE THREE, ask yourself if you will be happier with the evidence “for the truth” as well as for the non-HS purpose; if so, keep looking for an applicable exception, starting with –

RULE FOUR: Use exception 803-3, “state of mind – intent under Hillmon.” After all of the above rules, this exception supports the admissibility of 50-75% of the HS problems that remain. Then go to 803-6 (business records) and 803-8 (public records); they handle 90% of what’s left. And don’t forget 803-21: reputation concerning character, also useful (but so far down the list it’s easy to forget).

RULE FIVE: if none of the above succeeds, and you find no other plausible exception, give up with good cheer (after ensuring that you have preserved all issues for appeal). How important could this one piece of HS be to your case? Few cases are lost “for want of a nail.” Carry on as if you had planned it this way all along.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
Feature Products


Get every new post on this blog delivered to your Inbox.

Join other followers: