I heard you're talking about Hearsay

Hearsay: What it is and how to get around it.

The following example might trigger repressed trauma for some people.

You're directing a witness. Everything is going the way you want it to, the atmosphere is sympathetic and trusting, the witness is playing up their emotion, all you need to cap it off is to bring out the bit of incriminating evidence the witness heard, and it's non-alcoholic cider all night!

Just as you ask the question, your learned friend from the opposing side shoots up, yelling,

Objection! Crown is using inadmissible hearsay to prove the truth of the matter asserted!

And that's that. Your trump card is out; inadmissible. You hastily throw out a 'no further questions' and slump behind counsel table, trying to open a portal to the void with your blank stare.

What happened? What is 'hearsay', and how do you use the rules about it to your advantage? This is how.

DEFINITIONS

Hearsay is regulated by Article VIII of the Federal Rules of Evidence in the United States. Canada has their own thing with case law and opinions, but the general ideas apply in almost all competition settings. Make sure to check your mock trial conveners' rulebook for which of these rules are applicable to you.

Under Rule 801:

  1. A statement is any conduct by a person to convey or assert information.

  2. A declarant is the person who made the statement.

  3. Hearsay is a statement that the declarant does not make testifying, and is offered by a party to prove the truth of the matter asserted.

From these, the all-too-familiar definition of hearsay eloquently emerges:

Hearsay is an out-of-court statement presented for the truth of the matter asserted.

But, what does that mean?

It means that hearsay is only hearsay when its made by someone not currently testifying, and that the truth of the statement, the information conveyed in it, is important.

Allow me to illustrate with an example.

Suppose three people: Dylan, Hampus, and Steven. Dylan tells Hampus that Steven means to kill him. Enraged, Hampus takes action and kills Steven when they meet next. At trial, the question is posed to Hampus:

What did Dylan tell you?

Is this hearsay? That depends on whether it's meant to prove the truth of the matter asserted in the statement, being that Steven means to kill Hampus. If Steven's murderous intent is true, and defense means to prove that by asking this question, then it's inadmissible hearsay. Hampus can't testify to the truth of Dylan's statement to him.

But, if the point of the question was to prove Hampus's mental state during his entanglement with Steven, then the truth of the matter asserted is inconsequential. If the point is to prove that Hampus thought Steven was going to kill him, then the question is permissible, because the truth of the statement is not contended. Rather, the impact of the statement on the testifying witness, Hampus, is what's important.

If the veracity of the statement is not probative, than it can't be hearsay.

EXCEPTIONS TO THE RULE OF HEARSAY

Hearsay is a classic instance (the other being the mendacious maxim "'i' before 'e' except after 'c'") where the exceptions to the rule nearly swallow the rule itself. There's almost always a way to get something in, if you try hard enough, and if you read this guide.

Admission by Party Opponent

Under Rule 801 d) 2), a statement is not hearsay when the statement is made against an opposing party, and:

  • was made by the opposing party, in an individual or representative capacity;

  • is one the opposing party believed to be true;

  • was made by someone the opposing party authorized to make a statement on the subject;

  • was made by the opposing party's agent or employee within the scope of this relationship while it existed; or

  • was made by the opposing party's co-conspirator during and in the furtherance of the conspiracy.

In short, statements made by either party themselves or their employees, agents, or co-conspirators, are generally admissible about the relevant subject. For instance, statements made by the CEO of a company being sued is admissible against the company, even if the CEO is not testifying, as long as the statement is material to the trial.

Present Sense Impression

Under Rule 803 1), a statement is not hearsay when it describes or explains an event or condition, made while or immediately after the declarant perceived it.

Statements about the condition or events itself about the declarant, made spontaneously while the event or condition is occuring, is thus admissible. For example, if a declarant says "It's boiling hot", or "The car was swerving", these statements are admissible to prove that it was, in fact, hot, or the car was, in fact, driven unsafely.

Excited Utterance

Under Rule 803 2), statements made about a startling event, while the declarant is excited by it, is admissible.

Spontaneous and uncontrolled reactions in a exciting, stressful, or traumatic situation are admissible despite hearsay. For instance, statements about an ongoing violent crime "He's going to strangle me!" or a dangerous event "Look out!" are all allowed.

There are still so much more to hearsay. How to prepare against an objection of it? What to say to diffuse a situation where the judge could strike half of your direct exam? What exceptions are there if the declarant simply forgot, or is a medical record (I don't know about this one either)? Evocation teaches, probably not everything about hearsay, but enough to keep you sated until law school.

Ciao!

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