Chapter V Hearsay
| Jurisdiction | United States |
V. Hearsay
A. Introduction
1. What Is Hearsay?
Hearsay is a statement — oral or written — made outside of the current trial or hearing that is offered to prove the truth of the matter asserted.177
The Rules generally prohibit hearsay evidence.178 Hearsay is presumptively unreliable because the statement was made out of court, thus depriving the opposing party of the opportunity to test for truthfulness under oath before the fact-finder.
Nonetheless, the Rules do allow the use of certain hearsay statements whose context and/or circumstances render them sufficiently reliable. These "exceptions" to the prohibition against hearsay are governed by Rules 803 and 804. Subsection D below discusses many of the most useful hearsay exceptions.
Often, hearsay evidence incorporates other hearsay statements. Known as "hearsay within hearsay" or "double hearsay," the proponent must demonstrate the admissibility of each layer of hearsay statements under Rule 805.
Even if a hearsay statement is admissible, the proponent must still establish relevancy under Rule 401 and demonstrate that its probative value outweighs any unfair prejudice or other reason under Rule 403.
2. What Is Not Hearsay?
The Rules exclude certain statements from the definition of hearsay. For example, statements by a party opponent and certain statements by a witness are not hearsay.179 Although these are out-of-court statements offered to prove the matter asserted, they are not hearsay. Subsection C discusses these exclusions.
Statements produced automatically by computers are not hearsay. The Rules define hearsay as a statement made by a "person."180 Automatically generated machine statements are not made by a "person" and for that reason are not hearsay.181 The proper way to challenge computer-generated statements is through authentication objections, not hearsay objections. Examples of non-hearsay computer-generated statements include GPS coordinates,182 phone-logs,183 metadata,184 and the date stamp on a faxed page.185 In contrast, human-generated records stored on a computer are hearsay because they represent the statements of the person who keyed the records.
Photographs and satellite images are not hearsay. The Rules define hearsay as a person's "assertion."186 Photographs and satellite images cannot be hearsay because they do not make assertions; they merely depict a scene as it existed at a particular time.187
Statements with "independent legal effect" are not hearsay. Sometimes referred to as "verbal acts," these statements are important not because they are true, but because legal consequences flow from the fact they were made. For example, in a breach-of-contract action, the terms of the contract are not hearsay because those terms define the rights and duties of the parties. Or, in a defamation case, the allegedly defamatory statements are not hearsay because the mere fact that such statements were made creates legal liability. The point is, these statements are not offered to prove the truth of matter asserted and for that reason are not hearsay.188
A question may or may not be hearsay. Some courts hold that questions cannot be hearsay because a question does not, and is not intended to, assert anything.189 Other courts hold that questions may be hearsay where the declarant intends an implied assertion and the proponent offers it for this intended message.190 Know the position of your jurisdiction.
These are just a few examples of evidence that is not hearsay. The takeaway is this: not everything spoken or written down outside of court is hearsay. If the evidence is not (a) an assertion, (b) made by a person, (c) outside of court, and (d) offered to prove the matter asserted, then it should not be excluded on hearsay grounds.
B. Annotated Checklist
(1) Is There an Objection?
Even if evidence would qualify as hearsay, it will not be excluded in the absence of an objection. Not only does this mean that some hearsay comes in either because the other side does not care or misses an opportunity, but it also means that, if identified early, counsel can solve hearsay problems by stipulation.
When an objection is made, the burden shifts to the proponent to state the applicable exception. Familiarize yourself with the most common evidentiary objections. Think beforehand about every objection that could be made, and prepare to respond with the rule establishing the admissibility of your evidence.
(2) Is It a Statement by a Person?
To qualify as hearsay, it must be a "statement" made by a "person."
(3) Is It "Out of Court"?
It probably is. For purposes of hearsay, "out of court" means that trial or hearing in which counsel offers the evidence.
(4) Is It Being Offered for Its Truth?
If the attorney offering the evidence does not care whether the statement is true or false, then counsel is probably not offering it for its truth.
(5) Is the Statement Excluded from the Definition of Hearsay?
A witness's prior inconsistent statement under oath and statements by an opposing party are not hearsay. They simply are not.
(6) Does a Statutory, Rule or Common-Law Exception Apply?
• Present-sense impression
• Excited utterance
• Then-existing state of mind
• Past recollection recorded
• Business records
• Public records
• Learned treatises
• Market reports
• Residual exception
• Statements in documents affecting interests in property
There are a broad variety of exceptions to the rule against hearsay created by statute, rule (in federal court) and common law. There are too many to set out in this checklist, but counsel can look them up in most treatises or CLE texts. What is important to remember is that identification of evidence as hearsay is only half the analysis; finding a plausible exception is the other half.
(7) Does a Statutory, Rule or Common-Law Prohibition Apply?
Even if an exception to the hearsay rule applies, in certain situations the hearsay may still not be admissible. For example, in criminal cases, certain out-of-court statements that might otherwise be admissible are barred by the Confrontation Clause of the Sixth Amendment to the Constitution. This is not frequent, but counsel must consider it.
(8) Is There Some Special Problem with Probative Value?
Even if evidence might be technically admissible, the judge may still exclude it if he/she believes it is not trustworthy.191 (In addition, the proponent must still establish relevancy under Rule 401 and demonstrate that its probative value outweighs any unfair prejudice or other reason under Rule 403).
C. Exclusions
The following statements are not hearsay.
1. Admission of Party Opponent
Pursuant to Rule 801(d)(2), a statement by an opposing party is not hearsay if it is offered against that party.192 The proffered statement can be one made by the opposing party, made by the opposing party's agent or employee, or made by another and adopted by the opposing party.193
Admissible statements need not be made to a third party or under oath. Thus, admissible statements can be found anywhere, including bankruptcy-specific sources such as transcripts from a § 341 meeting194 and Bankruptcy Rule 2004 discovery.195
Statements by a debtor are admissible against a trustee as party opponent statements when the trustee stands in the shoes of the debtor.196 On the other hand, when the trustee does not stand in the shoes of the debtor, the debtor's statements are not admissible against the trustee.197 Note, however, that even if a debtor's statement cannot be admitted as an admission of party opponent, it could be admissible under the residual hearsay exception.198
i. Establishing a Party Admission Made in Individual or Representative Capacity
A party's own statement is not hearsay when offered against it.199 Generally, the only foundation counsel needs to establish is the authentication of the statement as coming from the party opponent.
Q: Your Honor, I would like to offer the following portion of the deposition of [party opponent].
OR
Q: [After establishing documentary foundation] Your Honor, I would like to offer this letter signed by [party opponent].
OR
Q: Did you hear [party opponent] make a statement?
A: Yes, I did.
Q: What did he/she say?
ii. Establishing a Party Admission Made by Agent/Employee/Authorized Speakers
A statement by an opposing party's agent or employee is an admission of that party opponent if the statement was made on a matter within the scope of the declarant's agency or employment.200The declarant need not be specifically authorized to speak on the subject, but the statement must concern a subject about which the agent or employee was actually involved.201 The statement must be made while the speaker was employed.202
Note that a statement on behalf of the principal made by an individual with authority to speak on the subject is also an admission of a party opponent.203 While this is a separate exclusion, it is usually subsumed by Rule 801(d)(2)(D).204 In other words, only in rare circumstances does a speaker other than an agent or employee have the authority to make statements on behalf of a principal.
Q: What was your role in company at the time of the compliance committee meeting?
A: I was assistant to the lead compliance officer.
Q: What part did the lead compliance officer play in this committee meeting?
A: I remember she updated the committee on the compliance problem and outlined possible solutions.
Q: And what did the compliance officer say to you after the meeting?
A: [Witness recites statement.]
OR
Q: Who were you dealing with at the time?
A: Mr. Moose.
Q: What relationship did Mr. Moose bear to Mr. Squirrel?
A: He was his business agent.
Q: How did you know that?
A: Mr. Squirrel introduced him to me as his agent.
Q: What did Mr. Moose say?
A: [Witness recites statement.]
iii. Establishing a Party Admission Made by Adoption
A statement made by another but adopted or believed to be true by the opposing party is an admission of that party opponent.205
Counsel must demonstrate...
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