Revisiting and Rethinking Hearsay

• Author: Steven K. Yoda
• Pages: 28-30

28 FAMILY ADVOCATE www.shopaba.org

argument as to why a particular statement should or should

not be admitted into evidence.

Hearsay and the Inherent Vagary of “ Truth”

It is helpful to begin any discussion of hearsay with rst

principles. e rst 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, oered by a party to

prove the truth of the matter asserted in the statement. Fed.

R. Evid. 801(c). e shorthand recitation of this denition,

which any law student can recite, is: Hearsay is “an out-of-

court statement oered for the truth of the matter asserted.”

Anderson v. United States, 417 U.S. 211 (1974) (“Out-of-

court statements constitute hearsay only when oered 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 denition 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

Clunky though it may be, the hearsay rule is a

xture of American law. With its two exemptions

(see Fed. R. Evid. 801(d) (a declarant-witness’s

prior statements and an opposing party’s prior

statements are deemed “not hearsay”)), twenty-

eight specic exceptions (see Fed. R. Evid. 803 (listing

twenty-three exceptions); Fed. R. Evid. 804(b) (listing ve

exceptions)), one “residual exception” (see Fed. R. Evid. 807

(listing the residual exception)), and various exceptions to

exceptions, it is no wonder that the hearsay rule has vexed

law students, practitioners, and judges alike for genera-

tions—and it even has caused some scholars to urge its

abolition altogether. See, e.g., Paul S. Milich, Hearsay

Antinomies: e Case for Abolishing the Rule and Starting

Over, 71 Or. L. Rev. 723 (1992). As one scholar has put it:

“As currently dened, . . . the hearsay rule represents a

complex jumble of concepts in which the exceptions

virtually swallow the rule.” See Marilyn J. Ireland, Decon-

structing Hearsay’s Structure: Toward a Witness Recollection

Denition of Hearsay, 43 Vill. L. Rev. 529, 530 (1998). Like

it or not, the hearsay rule—with its byzantine structure—

remains a reality that practitioners must face. e purpose

of this article is to briey revisit the hearsay rule, provide a

quick refresher on its basic principles and policies, and oer

a hopefully helpful heuristic for understanding its operation.

is way, if you are put on the spot regarding a hearsay

issue, but you have not meticulously memorized each

exemption and exception, you can make an educated

Revisiting and Rethinking Hearsay

BY STEVEN K. YODA

Published in Family Advocate, Volume 44, Number 4, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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