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Hearsay—in Small Steps

September 5, 2018

Hearsay is a very difficult problem; arguably the most difficult in law. Many years ago, the late, great Lawyer, Professor, and Judge Irving Younger teasingly lamented,

I wasted the flower of my youth trying to understand hearsay.

By this, Younger meant that after spending a lifetime trying to conquer the rule against hearsay, he finally realized the beast cannot be conquered. Others have had colorful things to say about the difficulty of understanding hearsay. Professor John M. Maguire of Harvard Law School called hearsay an “unintelligible thicket.” John M. Maguire, The Hearsay System: Around and Through the Thicket, 14 Van. L. Rev. 741 (1961). Here is one of my favorite comments on the difficulty of understanding hearsay,

[For] judges, practitioners and students (not to mention occasional law teachers) . . . the rule against hearsay has always been an awesome and terrifying mystery. Like its partner in terror, the rule against perpetuities, the rule against hearsay ranks as one of the law’s most celebrated nightmares. To many practitioners, it is a dimly remembered vision, which conjures up confused images of complex exceptions and incomprehensible and antiquated cases.

That’s from a book called Evidence and Advocacy by Peter Murphy and David N. Barnard (Blackstone 1984).

These playful comments confirm for us the serious reality that hearsay is an extremely difficult concept. As a trial judge years ago, I ruled on the admissibility of statements I was absolutely positive were offered to prove the truth of the matter asserted, only to later discuss them with the smartest judges I know to find they completely and emphatically disagreed with me. However, we’re all in good company. In a recent decision by the Supreme Court of the United States, five justices were adamant that statements in a laboratory report were offered to prove the truth of the statements, but four justices were equally convinced the statements were offered for a purpose other than their truth. See Williams v. Illinois, 567 U.S. 50, 57-58, 119-20 (2012).

If the justices of our nation’s highest court cannot agree on the supposedly basic premise of the rule against hearsay, how can we expect to fully understand it? Well, we can’t. The most we can hope for is to understand the manner in which hearsay deceives us! Acknowledging the difficulty of understanding a particular hearsay problem is a helpful—if not essential—step toward getting the analysis right.

One of the core tasks of lawyers in general, and trial advocates in particular, is to take extremely complicated subjects and make them simple, so they can be better—even if not completely—understood. I might be crazy, but I think I can do that for you. So, I’m going to do three things in this post. First, I will set out two short, hopefully pain-free, philosophical premises about hearsay analysis. Second, I am going to give you a few “small steps” we can take to give ourselves the best chance at the giant challenge of understanding a specific hearsay problem. Third, I am going to reference another blog post in which I will prove the effectiveness of the “small step” method of analysis by applying it to the facts of one of the classic hearsay cases of all time—Emich Motors Corporation v. General Motors Corporation, 181 F.2d 79 (7th Cir. 1950). I would have included it here, but this post will already be long enough.

The Philosophy

The philosophical premises are simply that the analysis of whether a statement is hearsay under the definition in Rule 801(c) of the Federal Rules of Evidence:

  1. is a separate analysis from whether an exception or exemption applies, and
  2. is an analysis that cannot be made effectively in the abstract.

To clarify these premises, here are a few ground rules for understanding hearsay, focused on the Rule 801(c) definition:

Ground Rule One: to truly grasp hearsay, we must focus on the definition of hearsay under Rule 801(c), and in particular subpart (2) of that definition. Understanding this definition is one of the hardest tasks for a trial lawyer. To do it, we must stay focused on the words of 801(c)(2), which are:

“Hearsay” means a statement that:

* * *

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

There is more to the definition of hearsay, such as Rule 801(d), entitled “Statements That Are Not Hearsay.” For now, however, please forget about Rule 801(d). I will cover it in great detail in separate blog posts. I also want you to forget about any hearsay exceptions under Rules 803, 804 or 807. That, too, will come later. We are also leaving out—for now—801(c)(1), which requires that the statement be one that “the declarant does not make while testifying at the current trial or hearing.” We’ll cover all of that, but to understand hearsay, our first task is to understand the 801(c)(2) subpart of the definition of hearsay. For now, let’s not worry about the other stuff.

Ground Rule Two: we must remember that evidence problems arise in trials, not in textbooks or law school classrooms. This requires us to keep two thoughts firmly in our grasp:

  1. Evidence problems do not exist in the abstract. Rather, they arise during the course of the efforts of trial lawyers to resolve problems faced by real people. So, to properly understand any evidence problem (particularly hearsay), we must understand the legal and practical context in which the problems of those people arose.
  2. We also have to remember that an evidence problem (again, particularly hearsay) presents itself in a courtroom—during a trial. The supposed hearsay itself, however, necessarily arises out of an event (a statement) that occurred previously, outside of the courtroom (meaning we are dealing with an “out-of-court” statement, or, as stated in Rule 801(c)(1), a statement “the declarant does not make while testifying at the current trial or hearing”).

The “Small Steps”

Step One—the first step in analyzing any evidence problem is to ask “Is it Relevant?”

This point is proven in a separate blog post “The Fundamental Concept of Relevance.” But there is a more subtle point here, and that is to consider not only whether it is relevant, but why is it relevant? We could call that two steps—whether and why—but it’s really one, because . . .

Understanding the reason a piece of evidence is relevant is integral to knowing whether it is relevant.

Step Two—to the extent possible, you must answer the question “What is the Statement?”

Sometimes this can be quite difficult, even impossible, but it is very important to know what the statement is, down to the specific words the declarant used to make it. This “second step” can be intertwined with the first step because sometimes you must know what the statement is to understand whether and why it is relevant, but for our purposes here it is step two.

If you’re a trial judge, send the jury out so you can discuss the words of the statement with the lawyers, or to let the witness testify to them outside the jury’s presence. That’s not always necessary, but I know I did it hundreds of times when I was a trial judge, and it always gave me a clearer understanding of what my ruling should be. If you’re a trial lawyer, then consider whether asking to have the jury sent out helps your client. If you think it does, ask for it. If not, well . . .

No lawyer should ask for something that does not help her client . . . !

Step Three—you must ask “What is ‘the Matter Asserted in the Statement?’”

Notice that the interior quote in the step-three question is the language of Rule 801(c)(2). You also have to remember the Rule 801(a) provision that a statement is “a person’s . . . assertion,” or if it is non-verbal conduct, it is a statement when “the person intended it as an assertion.” So, here we ask what was the person trying to say? Or, if it is non-verbal conduct, what was the person intending to convey with the conduct?

In this “third step,” it is important to frame the question precisely: we want to know what is “the matter asserted in the statement!” Don’t focus on what the plaintiff or defendant asserted in a pleading, or in the lawsuit generally. Don’t focus on what a witness might assert from the witness stand. Don’t focus on what a lawyer might assert to the trial judge when arguing the admissibility of the statement.

Focus on what the declarant asserted “in the statement”—the one the party has objected to as hearsay!

One more point of emphasis, because this is where I see most lawyers—even good ones—get tripped up. The question here is literal! What—literally—did the declarant assert in the statement?

Step Four—we are getting close to the critical question, but next we ask a question that can be framed in a number of different ways. I like to frame it like this, “What is the significance to the case that the statement might be true, as compared to the significance of the mere fact the statement was made, or the significance of some other role the statement may play in the case that does not depend on the truth of the statement?” Here are a couple of illustrations of how we might analyze the significance of a statement in this way:

Imagine an intersection wreck case in which the passenger of one car is severely injured. Just after the accident, a bystander heard the passenger say, “That other knucklehead ran the red light and hit us.” Forget that this might be an excited utterance, for perhaps the passenger is a careful-thinking lawyer, and the defense argues persuasively the statement was not spontaneous. I’ll have a blog post later on the importance of spontaneity in admitting excited utterances. Consider the significance to the case that the statement might be true in each of these three scenarios.

  1. The passenger survived, and the issue of liability is hotly contested at trial.
  2. The passenger died, and the issue of liability is hotly contested at trial.
  3. The passenger died, and the defendant concedes liability at trial.

In the first scenario, whether the statement is true is very significant to the case. In the second scenario the truth is also significant, but it is also very significant merely that the statement was made, because it proves the passenger was alive after the accident, and thus suffered conscious pain and suffering. In the third scenario, it makes little to no difference whether the statement is true, but it is quite significant that the passenger was alive after the accident.

Here is another illustration. The plaintiff slips, and falls, on a paved walkway outside a business during a rainstorm. Not long before this happened, the business put a sealer on the surface of the walkway. The plaintiff called employees of the business to testify that several customers told them the walkway “was slick when it was wet.” Obviously, it is very important to the plaintiff’s case to prove that the walkway gets slippery when it’s wet. So, it is significant to the outcome of the case that the statements might be true. However, in a slip and fall case, it is necessary to prove notice, so the mere fact the statement was made is also significant, even if the statement is not true.

Focusing on the significance to the case that the statement might be true—as opposed the significance of using the statement for some purpose not dependent on its truth—prepares us for the last step—the critical question in any hearsay analysis.

Step Five—“Why is the statement being offered?”

Now, finally, we can take “the matter asserted” in each statement and determine whether the statement is being offered “to prove the truth of the matter asserted in the statement.” This brings us back to the Rule 801(c)(2) portion of the definition of hearsay. If the statement is offered for the purpose of proving the truth of whatever is asserted in the statement, then it is hearsay. However, if it is not offered for that prohibited purpose, it is not hearsay!

Let’s go back to the slip and fall case. Many of you will recognize these facts, because the case is included in several popular evidence textbooks. The trial judge in the case allowed the statements into evidence, and the plaintiff won. The defendant appealed, in part on the basis that the admission of the statements violated the rule against hearsay. The appellate court acknowledged it was important to the case the statements were true, but affirmed the trial court’s ruling the statements did not violate the rule against hearsay, finding the statements were nevertheless offered for another purpose. The court stated,

[T]o make her case the plaintiff was obliged to show that defendant’s officers knew about the slickness. Under the circumstances of this case, the trial court properly admitted evidence that this knowledge had come to them through complaints of patrons that [the] sealed area was slick when wet.

Vinyard v. Vinyard Funeral Home, Inc., 435 S.W.2d 392, 396 (Mo. Ct. App. 1968)

Here it is important to understand, however, that the person offering the statement does not get to choose what her purpose is. She gets to argue what her purpose is, but the other side gets to argue the point as well. As the Third Circuit has explained,

If the hearsay rule is to have any force, courts cannot accept without scrutiny an offering party’s representation that an out-of-court statement is being introduced for a material non-hearsay purpose. Rather, courts have a responsibility to assess independently whether the ostensible non-hearsay purpose is valid.

United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993).

How does a court do that? Or, more importantly, how does a trial lawyer effectively argue “purpose?” I will cover that in detail very soon in a separate blog post titled “‘Why?’ is a Critical Question in Evidence!”

The Proof for the “Small Steps” Approach

This “proof” is in a separate blog post on Emich Motors Corporation v. General Motors Corporation, a classic hearsay case reported at 181 F.2d 79 (7th Cir. 1950). Why do I say this is a “classic case?” It’s the only court decision discussed by the Federal Rules of Evidence Advisory Committee in its “Note” to Rule 801(c).

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