§ 10.01 OVERVIEW

• Jurisdiction: North Carolina

§ 10.01 OVERVIEW

The hearsay doctrine is the last major preferential exclusionary doctrine based on doubt about the reliability of a type of evidence. The best evidence rule's underlying rationale is a fear of untrustworthy secondary evidence. The opinion rule expresses the courts' doubts about the reliability of opinions. Underlying the hearsay rule is a fear about the reliability of in-court testimony about out-of-court statements when the proponent is attempting to use the statements as substantive evidence in the case. The common law prefers that the third party (the declarant) appear in court and subject himself or herself to cross-examination. The common law assumes that evidence will be more trustworthy if the declarant testifies under oath, in the jury's view, and subject to cross-examination. The opponent may use cross-examination to expose any errors of perception, memory, narration, or sincerity.

Lay persons commonly think that the hearsay rule applies to any out-of-court statement. In truth, the rule has a relatively narrow scope. Evidence constitutes hearsay only if it is (1) an assertive statement (2) by a human being (3) still considered an out-of-court declarant at the time of trial and (4) offered at trial to prove the truth of the assertion. Federal Rule of Evidence 801 follows this view. The rationale for the rule explains the rule's limited scope. We are interested in the declarant's credibility only when his or her out-of-court statement is being used to prove the truth of the assertion. In that circumstance, the evidence's value depends on the credibility of the out-of-court declarant. For example, suppose that an in-court witness testifies that an out-of-court declarant said that the defendant's car ran a red light. The plaintiff wants to offer the testimony for the purpose of showing that in fact, the defendant's car ran the red light. For that purpose, the testimony's value depends upon the perception and memory of the out-of-court declarant. The opponent thus needs to cross-examine the out-of-court declarant to test the evidence.

However, if the proponent does not offer the out-of-court declaration for its truth, the opponent does not need to cross-examine the declarant. If the declaration is logically relevant on some other theory, the evidence's value usually depends on the credibility of the in-court witness. Suppose that the plaintiff has sued a defendant for slander...