by Wilton H. Strickland

For far too long I’ve neglected to discuss on this blog the rules of evidence. These rules are essential during all stages of litigation, particularly at trial because failure to raise a timely objection might lose the case or leave a deficient record for appeal. So, I have decided to launch a new series of posts titled Adventures In Evidence, which I hope will be helpful to practitioners and non-practitioners alike. For ease of reference, I will focus on the Federal Rules of Evidence (“FRE”) unless a quirk of Montana or Florida law warrants additional discussion.

The paramount requirement for introducing evidence into court is relevance. This means showing that the evidence “(a) has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” FRE 401. If you cannot make this showing, the evidence is irrelevant and inadmissible. FRE 402. To figure out whether evidence is relevant, the best place to start is the pleadings, for they establish the universe of allegations and legal theories at issue in a given case. If the evidence does not relate to those allegations or legal theories, chances are it is irrelevant.

Although relevance is necessary for introducing evidence, it is not always sufficient. An entire minefield of other rules and objections often stands in the way. One of these is the hearsay rule, which I will discuss today. This discussion is merely a “bird’s-eye view” because a thorough analysis would require volumes to complete.

What is hearsay? The term is bandied about in casual conversations and television shows, often as a vague reference to rumors or gossip. But hearsay has a specific definition:

“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.

FRE 801(c)

Note that a “statement” has its own definition as “a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” FRE 801(a). This means that assertions by a machine (such as a speed gun) or by an animal (such as a parrot) cannot be hearsay. A person must make the assertion. If that assertion meets the two listed requirements, it is presumed inadmissible unless some other rule allows it. FRE 802. The justification for the rule is the all-important right to cross-examine and confront, something that cannot happen when the declarant is outside of court.

The first hearsay requirement is the easy one. If a witness or a document references a statement from outside of court, that statement could be hearsay and will most likely draw an objection. Here are some examples:

• A witness is asked to describe a conversation he had with his friend.

• A witness is asked to describe the contents of a document he read on a prior occasion.

• An affidavit includes quoted language from another person or document.

• A police officer is asked whether a crime victim pointed at a suspect in a lineup.

The second hearsay requirement is more nuanced and tends to confuse even the most seasoned practitioners. An out-of-court statement is not hearsay if it is offered in court to prove something other than its own truth. I’ve lost count of the number of times I’ve had to refute a hearsay objection for failing to grasp this point, since many attorneys fixate on the mere fact that a statement was made outside of court, which is not enough to support a hearsay objection. Here are some examples of out-of-court statements that do or do not constitute hearsay, depending on their purpose:

• A witness in a criminal trial testifies that the victim told him that the defendant committed the crime. Hearsay because, most likely, the statement is being offered as true to help prove who committed the crime.

• A plaintiff asserting a claim of fraud testifies that multiple people have told him the defendant is dishonest and cannot be trusted. Hearsay because the statements are being offered as true to help prove that the defendant committed fraud. (The statements also are irrelevant because they do not concern the specific facts of the claim, but rather the defendant’s character and reputation, a subject for another post.)

• A witness testifies that his mother once stated that she could fly. Not hearsay because the statement most likely is not being offered to prove that the mother could fly, but rather to shed light on her mental health.

• A plaintiff testifies that he decided to sink his life savings into Bitcoin because his advisor told him that it was a good investment. Not hearsay because the statement is being offered to prove why the plaintiff made the investment, not to prove that it was a good one.

• A criminal defendant testifies that she shot her husband because someone told her that the husband was having an affair. Not hearsay because the statement is being offered to prove the defendant’s motive or state of mind, not to prove that the husband was having an affair.

If you have what appears to be a valid hearsay objection that fulfills the two criteria of FRE 801(c), you still should check whether some other rule allows the out-of-court statements into evidence anyway. A good example is FRE 801(d), which identifies two types of statements that categorically will not be treated as hearsay (a testifying witness’s own prior statement, and a self-defeating admission by an adverse party). Another good example is the laundry list of hearsay exceptions appearing in FRE 803, 804, and 807, which contain their own detailed requirements and are beyond the scope of this post.

At a minimum, I hope I have clarified what hearsay is and how to approach it.