Section 9.15 Hearsay

• Library: Civil Trial Practice 2015 Supp

5. (§9.15) Hearsay

During the course of trial preparation, the trial attorney will undoubtedly encounter evidence that is essential or important and yet constitutes hearsay. The trial attorney should bear in mind that there will be no objections to some questions that call for hearsay and that unobjected-to hearsay constitutes substantive evidence. But hearsay problems, like most of the problems encountered in the trial of a case, should be anticipated and carefully researched before trial. A favorable ruling is always more likely if counsel is in a position to supply the trial judge with a case on point.

Literally volumes have been written on the subject of hearsay. By the time a student graduates from law school, the student probably recognizes hearsay when confronted with it, but it is much less likely that counsel can state with certainty whether the evidence is admissible under an exception to the hearsay rule. In truth, there are so many exceptions to the hearsay rule that it would be difficult for anyone to have a complete understanding of the hearsay rule and all its exceptions.

Unlike the Federal Rules of Evidence, Missouri courts have not recognized an “omnibus exception” to the hearsay rule that makes admissible any declaration, not specifically covered, that has equivalent circumstantial guarantees of trustworthiness to those of the other exceptions. Liberty Fin. Mgmt. Corp. v. Beneficial Data Processing Corp., 670 S.W.2d 40, 54 (Mo. App. E.D. 1984). In Liberty, the court recognized that, when the purpose of the rule against hearsay evidence is adequately safeguarded, an exception to the hearsay rule may arise. But in...