Revisiting and Rethinking Hearsay

Hearsay and the Inherent Vagary of “Truth”

It is helpful to begin any discussion of hearsay with first principles. The first principle of the hearsay rule is: Hearsay is not admissible into evidence. Fed. R. Evid. 802. In short, “hearsay” is a statement made by a declarant, not while testifying at a current trial or hearing, offered by a party to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). The shorthand recitation of this definition, which any law student can recite, is: Hearsay is “an out-of-court statement offered for the truth of the matter asserted.” Anderson v. United States, 417 U.S. 211 (1974) (“Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted.”).

As some observers have noted, part of the confusion and convolution surrounding the hearsay rule arises from the baseline definition of hearsay. In particular, the word “truth” is terribly unclear. When you think about it, “truth” is a profoundly deep concept. Yet, the hearsay rule bandies it about quite facilely. What exactly does “truth of the matter asserted” mean? I would venture to guess that most readers understand “truth” to mean objective factual accuracy. However, the term “truth” can also mean veracity, in the sense of subjective sincerity and honesty. See Ireland, supra, at 547 (“A witness can be telling the truth, in the sense of being honest and sincere, and yet not be telling the truth, in the sense of accuracy”) (in this article, Professor Ireland notes still other definitions of “truth”). Admittedly, the latter meaning may not be the typical, modern-day understanding of the term “truth,” but I submit that, when “truth” is thought of in this way, the hearsay rule and its byzantine structure start to make sense.

Hearsay Is Excluded Because the Declarant Is Not Subject to Cross-Examination

The fundamental policy underlying the exclusion of hearsay is that the declarant (who made the statement at issue) is not subject to cross-examination. See Anderson, 417 U.S. at 220 (“The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence.”). When Person A testifies that Person B “told me XYZ,” Person B is not present for cross-examination. The idea is that cross-examination is a powerful tool to expose weaknesses in testimony. All things being equal, it is better to subject a declarant to the rigors of cross-examination to test the strength of the declarant’s testimony. Hence, hearsay generally is excluded from evidence (which forces declarants to testify in court, under oath, and subject to cross-examination).

That said, the rules of evidence nevertheless deem certain out-of-court statements admissible (or, at least, not inadmissible). This is where hearsay’s multitudinous “exemptions” and “exceptions” enter the picture. How can one keep all of this organized in one’s mind?

The Hearsay Exemptions: Prior Statements by a Declarant-Witness or an Opposing Party

The two hearsay “exemptions” are easy enough to remember. They both relate to prior statements: either (1) prior statements of a declarant-witness testifying on the stand or (2) prior statements of an opposing party. Fed. R. Evid. 801(d)(1), (2). Exemption (1) allows for the classic cross-examination of a witness. Trial counsel may use a witness’s prior inconsistent statements to impeach the witness. Exemption (2) simply is a natural part of our adversary system. Fed. R. Evid. 801(d)(2) advisory comm. note (1972) (“Admissions by a party-opponent are excluded from . . . hearsay on the theory that their admissibility in evidence is the result of the adversary system. . . .”). A party may always use an opponent’s statements or admissions against that individual.

The Hearsay Exceptions

More overwhelming to mentally organize are the dozens of hearsay “exceptions.” Some exceptions pay no regard to whether the declarant is unavailable as a witness. See Fed. R. Evid. 803. Other exceptions require the declarant to be unavailable as a witness in order for the statement at issue to be admissible. See Fed. R. Evid. 804. How can one keep these categories and subcategories conceptually organized in one’s mind?

The Hearsay Exceptions Regardless of Unavailability Generally Relate to Statements with Subjective Sincerity and Honesty

This is where it is helpful to think of the word “truth” in the phrase “truth of the matter asserted” to mean subjective sincerity and honesty (as opposed to objective factual accuracy). This is because the twenty-three exceptions listed in Rule 803 of the Federal Rules of Evidence, which pay no heed to a declarant’s unavailability, generally relate to statements made under circumstances that increase the likelihood of their subjective sincerity and honesty. These twenty-three exceptions are:

1. Present sense impressions;
2. Excited utterances;
3. Statements regarding the declarant’s then-existing mental or emotional condition;
4. Statements made for medical diagnoses;
5. Recorded recollections;
6. Records of regularly conducted activity (business records);
7. The absence of a record of regularly conducted activity;
8. Public records;
9. Public records of vital statistics;
10. The absence of a public record;
11. Records of family history kept by a religious organization;
12. Certificates of marriage, baptism, and similar ceremonies;
13. Family records;
14. Records affecting property interests;
15. Statements in documents affecting property interests;
16. Ancient documents;
17. Market reports and commercial publications;
18. Learned treatises and periodicals;
19. Reputation regarding family history;
20. Reputation regarding property boundaries;
21. Reputation regarding character;
22. Judgments of prior criminal convictions; and
23. Judgments regarding family history or property boundaries.

See Fed. R. Evid. 803.

It is impossible here to analyze each exception and its elements, but, by juxtaposing them in a single list, one can hopefully discern a general theme. These twenty-three exceptions generally delineate statements that—regardless of their objective factual accuracy—are made under circumstances that increase their subjective sincerity and honesty. Thus, for example, the contemporaneity of an event to a spontaneous statement helps to ensure that a present sense impression or an excited utterance is subjectively sincere and honest (even if they are not 100 percent factually accurate). Likewise, statements in public records or business records are presumed to be recorded by employees acting sincerely and honestly in a systematic and reliable manner. This theme of subjective sincerity and honesty is more obvious with respect to some of the twenty-three exceptions as opposed to others, but it nevertheless is a helpful heuristic to remember the types of statements that qualify as exceptions to the hearsay rule (regardless of a declarant’s unavailability).

The Hearsay Exceptions Requiring a Declarant’s Unavailability Relate to Statements That Are Backward-Looking (as Opposed to Present-Looking)

As for the five hearsay exceptions requiring a declarant to be unavailable as a witness in order for the statement to be admissible, it is helpful to think of them a little bit differently from the twenty-three exceptions discussed above. These five hearsay exceptions are (1) former testimony; (2) dying declarations; (3) statements against interest; (4) a declarant’s statements regarding that individual’s own family history; and (5) a declarant’s statements against a party who caused the declarant’s unavailability. See Fed. R. Evid. 804(b). At first blush, one could argue that, like the twenty-three exceptions discussed above, these five exceptions (or many of them) similarly delineate statements made by declarants under circumstances that increase their subjective sincerity and honesty. For example, former testimony is given under oath, which arguably promotes sincerity and honesty. Likewise, the stress of perceived imminent death arguably promotes the sincerity and honesty of a dying declaration.

However, the rules of evidence treat these five hearsay exceptions differently from the twenty-three other exceptions discussed above. For these five exceptions, the rules of evidence require that a declarant be unavailable as a witness in order for the statement at issue to be admissible. (Unavailability, as defined in Fed. R. Evid. 804(a), includes, among others, when a witness is deceased, cannot be present due to physical or mental illness, does not remember the subject matter at issue, and refuses to testify.) Stated another way, if a declarant is available to testify, the rules of evidence require that the declarant be called as a live witness to testify in court and be subject to cross-examination. Why? Because these five exceptions are different in kind from the twenty-three exceptions discussed above.

These five exceptions (or, at least, most of them) generally delineate statements that are backward-looking in nature. That is, they capture statements relating to past actions or conduct. For example, former testimony, although previously made under oath, usually relates to actions or conduct performed or observed in the past. Similarly, dying declarations, although made under the pressure of perceived imminent death, are only admissible insofar as they relate to the “cause or circumstances” surrounding the perceived imminent death (i.e., past actions or conduct leading to the perceived imminent death). See Fed. R. Evid. 804(b)(2). Likewise, even a statement against interest, which borders on an admission of guilt, touches upon past actions or conduct. Thus, these five exceptions generally capture backward-looking statements.

By contrast, the twenty-three exceptions discussed above capture statements that generally are present-looking. Present sense impressions, excited utterances, statements regarding the declarant’s then-existing mental or emotional condition—even business records and public records—can be said to relate to phenomena in the present (or relative present).

Statements that are backward-looking (like these five hearsay exceptions) are inherently more testimonial in nature. A typical witness, after all, sits in a witness box and testifies regarding past actions and conduct of which they have personal knowledge. Because backward-looking statements relating to past actions and conduct resemble traditional testimony, the rules of evidence require cross-examination if it is feasible. Hence, these five exceptions require a declarant’s unavailability—or, stated another way, they require a declarant to testify in person (and be subject to cross-examination) if the declarant is available—because they are more classically testimonial in nature.

Conclusion

The hearsay rule, in all of its inelegant glory, reflects centuries of common law development that traces its origin to at least seventeenth-century England. While it is impossible, in a short treatment like this (or even a longer one), to coherently explicate all of the nuances of the hearsay rule and its exemptions and exceptions, I hope to have provided a high-level heuristic to help you mentally organize the hearsay rule. The hearsay rule generally excludes out-of-court statements offered for the truth of the matter asserted. Yet, it generally excepts statements made under circumstances that increase their subjective sincerity and honesty. However, when it comes to out-of-court statements that are backward-looking—and, thus, more traditionally testimonial in nature—the hearsay rule requires that the declarant, if available, present live testimony that can be subjected to cross-examination. This heuristic may not perfectly account for all of the nuances of the hearsay rule and its exemptions and exceptions, but it is a helpful rule of thumb when in a pinch. And, like it or not, we will all have to live with this for the time being—until the hearsay rule is abolished (or massively reformed).