14.  Hearsay: definition and rule

Hearsay is defined in Rule 801, made presumptively inadmissible by Rule 802, and then made admissible in many situations under dozens of sub-rules found in Rules 801(d), 803 and 804. Learning the hearsay rule is going to take some time. It will help if we approach it as it would arise at trial rather than on the bar exam -- by asking what objections, responses and arguments can be made, rather than whether it is admissible. Admissibility is determined by the judge who has broad discretion and may view things differently than you do. And as we shall see, there are often good arguments for and against the admissibility of evidence that looks like hearsay.

All evidence issues arise only if someone makes an objection. If the opponent fails to object, the proponent does not need to identify a reason why the hearsay is admissible, and the opponent does not need an argument why the evidence should be excluded. It goes like this:

1) When the proponent offers an item of evidence that looks like potential hearsay (e.g., a print-out of a dated voucher from a casino to prove the defendant’s whereabouts on the day of the crime), the opponent objects to it as hearsay. Here's a brief spotting guide to things that look like hearsay.

2) Now, the game's afoot. The proponent must "Find the Loophole." In 95% of the situations where evidence looks like hearsay, it is ultimately admissible if you can find the right loophole. There are four types of loopholes:

a) Hearsay has a precise definition, so much of what looks like hearsay does not actually fit the definition in Rule 801(a-c), because it is not a statement, does not assert any facts, or is not offered to prove the truth of the matter asserted.

b) Some matters are simply exempted from the hearsay rule under Rule 801(d), notably statements made by or attributable to the opposing party.

c) Much of the evidence that fits the definition of hearsay nevertheless falls into one of the 30 or so exceptions found in Rules 803 and 804 (and occasionally in statutory or common law).

d) Even if "hearsay" evidence falls into none of these categories, it may still be admissible in the discretion of the judge in the interests of justice under Rule 807.

3) Finally, the lawyers argue about whether the proponent is right or wrong when s/he claims the hearsay falls into a loophole.

Let's go through the Hearsay Hypothetical that was linked to the syllabus.

2. Elvis spoke to me and said, "How are you this fine night?"
3. I said, "I thought you were dead!"
4. Elvis said "As you can see, I'm alive."
5. Elvis said "I'm retired and live right here in Mount Judea."
6. Elvis said "Are you a lawyer?"
7. I said yes, real estate law and was looking at a condo development.
8. Elvis said, "I heard that Lisa Marie is selling Graceland, is that true?"
9. I nodded.
10. Elvis said "I'd like you to represent me and stop her. Trump will ruin Graceland.”

We’ll start with STEP ONE -- if it looks like hearsay, object. To which of these nine items might an ethical attorney object under the hearsay rule? When you have an answer, click here to continue.