Hearsay through the eyes of our law student
by Jamison Koehler on September 13, 2019
Our youngest child has just begun his second year of law school. My wife and I were hoping one of our children would go into the law, and he was our last chance. Now he is taking a semester of Evidence.
Who doesn’t love Evidence?
I know that most law schools would not hire adjunct professors to teach a major subject as this one. But if I ever had the opportunity, I would love to teach this. I have written a lot about Evidence on this website and blog. If you google “D.C. rules of evidence” or “hearsay D.C.” or “excited utterance in D.C.,” you should find me as the #1 listing. I have also flirted with the notion of writing some type of hornbook for Evidence in the District.
My son calls me on his way home from school. “When will you be covering hearsay,” I ask? It is still early in the semester. “Not until later,” he replies. “The professor says it is difficult – sort of like learning the rule against perpetuities.”
I had no idea my son had even heard of the rule against perpetuities, the bane of anyone who has ever sat for the bar exam. It has been fun to hear him begin to speak like a lawyer. Now that he has been exposed to the law, he will look at life a different way. He will never be the same.
I struggled with hearsay when I was in law school. I guess most people do to some extent.
This is what I want to tell my son. When it comes to hearsay, there is only one phrase you need to keep in mind: Hearsay is an out-of-court assertion offered for the truth. If it doesn’t satisfy that definition, it is not hearsay.
So let’s go through this. “Out of court” is pretty straightforward. If it is not in that particular courtroom, then it is out-of-court. It does not matter if it is the same person making the declaration.
“Assertion” is anything that is intended to communicate something. It can be an oral or written statement. It can also be a nod or a gesture.
Finally, is the party seeking to introduce the hearsay offering the assertion for its truth? Say, for example, a party wants to introduce a statement that a door was blue. If the party seeks to prove that the door was in fact that color, then yes, the statement would be offered for the truth of the matter asserted. But if the party was instead seeking to prove that the declarant of the statement was colorblind, then no, that would not be hearsay.
Of course, figuring out whether a statement is hearsay is only the first step in the analysis. If the statement is in fact hearsay, the next question is whether or not the statement can nonetheless be admitted under an exception to the hearsay rule. More on that some other time.