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.
DR STRANGERULE, OR, HOW I LEARNED TO STOP WORRYING AND LOVE HEARSAY
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.
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:
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:
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]:
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.
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