hearsay: the least understood exclusionary rule

Journal of Criminal Justice Vol. II, pp. 265-215 (1989) All rights reserved. Printed in U.S.A.

GO47-2352/89 $3.00 + .OO Copyright 01989 Pergamon Press plc

HEARSAY: THE LEAST UNDERSTOOD EXCLUSIONARY RULE

DENNIS MURPHY

Department of Government Armstrong State College

Savannah, Georgia 31419-1997

ABSTRACT

Though the “exclusionary rule” refers to a rule that emergedfrom Mapp v. Ohio, virtually all rules of evidence are exclusionary rules. The idea is to ferret out prior to admission potential evidence that is unreliable, impertinent, or not logically probative of a material issue. In the adversary system in the United States, the search for truth may be tortuous, but if the truth is to be known, some proffered evidence must be excluded. Among rules excluding such evidence, and foremost among those widely misunderstood, is the hearsay rule. Through discussion of three categories of apparent hearsay evidence and development of a comprehensive decision tree for evidentiaty admissibility, this article is designed to dispel hearsay rule confusion.

“Hearsay is the least understood exclusionary rule.” Having now read this first sentence, imagine yourself as a competent witness to- morrow in a court trial in which the key issue is whether the hearsay rule or the best evidence rule is the least understood of all the rules that exclude evidence. One of the attorneys asks you on direct examination which rule is the least understood; you reply by quoting the sentence above. Is your testimony admissible?

This article seeks to answer that question through use of an analytical apparatus appropriate for dealing with this and all other “hearsay problems.” Many statements taken out of context can be misleading, if not pat- ently false. Though the sentence quoted above would suffer no such metamorphosis, nonetheless, examination of the hearsay rule can-

not be productive if the rule is considered apart from its context, the rules of evidence as a whole. This is the case a fortiori, since the overarching purpose of the rules of evidence is to provide a rational framework within which truth can be sought and found. This article discusses the rules of evidence in this context, focusing on a five-pronged test for evidence that can be applied to hearsay problems in general.

THE RULES OF EVIDENCE

The rules of evidence, not to mention evidence itself, involve unavoidable philosophical questions. Foremost among these is the basic problem of metaphysics, What is reality? Directly related to this issue is another,

265

266 DENNIS MURPHY

the epistemological, upon which most phi- losophers-but far too few attorneys, judges, and jurors-have pondered, What is the nature of knowledge and truth, and what are the parameters within which the search for them is to be conducted?

The descent from such abstract, ethereal musings to the reality (whatever that is) of a court of law provides no escape from the basic philosophical questions. Seemingly straightforward queries such as “What happened?” and commands such as “Just the facts, please” may be indispensable to the court process, but their very simplicity deceives

persons unaware of the implicit philosophical assumptions.

Legal scholars and general semanticists have grappled with these problems through application of concepts such as normative ambiguity (Lasswell and McDougal, 1971) and levels of abstraction, but the point here is a simpler one: as with the jurisprudential par- adigm through which an individual concep- tualizes what law is and how it operates, it is necessary also to choose, consciously or unconsciously, a Weltanschauung that embraces a set of philosophical assumptions. Only then is it possible to make sense out of whatever “reality” is perceived.

The “facts” concerning “what happened” are also an issue. Unfortunately, the search for truth in court is unexpectedly complicated by the possibility that seemingly clear concepts such as fact, opinion, evidence, and proof themselves have a philosophical di- mension. Loevinger (1958) noted:

The difference between what a witness will report as his observation of a “fact” and what may be reported as an “opinion” may rest en- tirely on the degree of intelligence, education and sophistication of the witness or it may rest upon the court’s reaction to the testimony offered. ’

This “distinction” between fact and opinion is of no small moment, given the general pro- hibition to the admissibility of percipient witness “opinion” “evidence.”

With the understanding, then, that both an epistemological assumption and an ontolog- ical proposition about “being” are implicit, it

is appropriate to outline at this juncture the thrust of the rules of evidence. Basically, the rules of evidence in the system of law in the United States assert that:

(A) Evidence not relevant to the legal issues before the court cannot be received.

(B) Hearsay evidence cannot be received, except for numerous special cases in which such evidence is received

(C) Testimony in the form of opinions or con- clusions cannot be received, except from experts.

(D) Secondary evidence as to the content or in- tent of writings cannot be received.

(E) Privileged communications cannot be received .

(F) Evidence must be offered in accordance with specified formal and procedural rules. (Loevinger, 1958).

Taking into account competency (reliability) and materiality (pertinency) as well, the rules of evidence, then, are “rules of exclusion,” which exist “to put various classes of evidence beyond the consideration of the fact- finding tribunal” (Loevinger, 1958).

Taken as a whole, the rules of evidence traditionally have not been as internally consistent as the above schema indicates. Prior to the comprehensive rethinking and rework- ing that led to the federal rules of evidence in the mid-1970s, the rules were a miscellany of sometimes conflicting prescriptions based on common sense, tradition, or policy, usually containing some degree of anachronism. Still, it has always been maintained that the rules of evidence were essentially an organic whole, representing rational man in his quest to uncover truth.’

With this contextual sketch completed, the remainder of the introduction outlines a five- pronged test for evidence. It should be noted here that the test is of general evidentiary applicability; specific application to hearsay problems will be made in the final section of the article, after the hearsay rule itself is examined.

The first part of the five-pronged test is so obvious that it is often overlooked, sometimes to the detriment of a party. It concerns the question, What is the evidence? The an-

Hearsay: The Least Understood Exclusionary Rule 267

swer is important because it clarifies the type and form of the evidence3 and may thereby determine the applicability vel non of an exclusionary ru1e.4

The second query is, What is the evidence being offered to prove? In other words, what is the object of proof, the issue? Discrimi- nation among issues, as will be seen in the final section, is critical.

Third, and obviously linked closely to the second, is the question, Is that a material issue? Although materiality as a concept seems to have been absorbed into an expanded notion of relevancy, it still is incumbent upon the party who would offer evidence to be able to show that the object issue thereof is per- tinent, that it matters in the case.

The fourth of the five prongs constitutes the relevancy nexus: Is this evidence logically probative of that issue? Rationality compels that it must be logically probative or be excluded. Relevancy is of particular importance, of course, in regard to circumstantial evidence, that is, evidence requiring the trier of fact to draw an inference.

The fifth prong provides the hedge against irrationality that traditionally bore the label “legal relevancy”: Does the probative value of the evidence outweigh its prejudicial effect? Emotions must not supplant reason if the truth is to be known.

The five-pronged test for evidence constitutes the analytical apparatus which. in tan- dem with a three-way taxonomy of “apparent hearsay” evidence, will be applied to simplify analysis of hearsay problems in the third section. The next section, however, provides the necessary background concerning the hearsay rule, its history, application, rationale, and exceptions.

THE HEARSAY RULE

The life of the law, as Holmes observed, may very well have been experience, not logic, but interwoven with the law is the psycho-logic5 inherent in language. Though the hearsay rule is of more recent origin, the grammatical construction “saying-heard” is essentially nontechnical Old English from the early eleventh century, the form “heard say-

ing” from the twelfth. In the sense of re- porting rather than personally knowing, “hear- saying” was recorded as early as 1340, and during the sixteenth and seventeenth centu- ries, the legal profession began to speak of “hearsay” (Mellinkoff, 1963). The hearsay rule as rule did not become firmly embedded in the law of England until the latter part of the seventeenth century, however-too late to save Sir Walter Raleigh, who was con- victed of high treason in 1603, principally on the basis of hearsay (Louisell, Kaplan, and Waltz, 1981).

The language of the hearsay rule, like so much language in the law, is deceptively simple:6 evidence is inadmissible at trial if it comprises an out-of-court assertion offered to

prove its truth. An alternative description of hearsay offered by Wheaton (1969), who had previously noted that “none of the many at- tempts to define hearsay has produced a generally accepted definition,” is that it is “a statement or other communicative conduct offered to prove the truth of the matter asserted. ” Another definition, from a highly re- garded treatise, McCormick’s Handbook of

the Law of Evidence, makes explicit an im-

plicit problem with the quality of the

evidence:

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon

the credibility of the out-of-court asserter.

One key to understanding hearsay is to identify the conceptual criteria for exclusion. That is, Why is hearsay evidence inadmissible at trial? Morgan (1948) asked whether the rationale undergirding the hearsay rule is, not the proof-of-the-matter-asserted compo- nent, “but rather the presence of substantial risks of insincerity and faulty narration, memory and perception. ” These will be examined in the final section as part of one conceptual approach to understanding hearsay, but, as will be seen in the discussion of exceptions to the hearsay rule, the singular criterion of evidentiary quality control em- braced by the rule is the trustworthiness of

268 DENNIS MURPHY

evidence: if an assertion is hearsay, its trustworthiness is inherently suspect.

There are three basic reasons for this, ac- cording to Binder (1983):

1. A witness should testify, on oath or affirmation. The solemnity thereof exerts a moral suasion on many witnesses to tell the truth. It exerts a more mundane suasion on all witnesses, because one who lies while testifying on oath or affirmation is subject to criminal prosecution for perjury.

2. A witness should test& in the presence of the trier of fact. The appearance and the demeanor of a witness are often more reveal- ing than his words

3. A witness should be subject to contemporaneous cross-examination . No better way of exposing falsehood, error, or weakness in the testimony of a witness has yet been de- vised. The Supreme Court has declared that the “primary justification for the exclusion of hearsay is lack of opportunity for cross examination. Anderson v. U.S., 417 U.S. 211, 220 (1974).7

In the later discussion of exceptions to the hearsay rule it will be demonstrated that these requirements can, in some circumstances, be overcome by other indicia of reliability.

Referring back to the definitions, it can be

seen that in form, hearsay can be oral or written and can be based upon assertive or communicative conduct as well as words. Non-

assertive words, such as words of greeting or warning, and nonassertive conduct, that is, conduct not intended as a substitute for assertive words, are excluded by such definition from the realm of hearsay. In regard to the latter, this has not always been the case; however, evidence of nonassertive conduct from which an inference could be drawn was formerly excluded as hearsay if offered to prove the truth of the inference.8

Additional complications stem from hcar- say definitions. One example is termed “indirect hearsay” (Falknor, 1956) or “hearsay by implication” (Binder, 1983:60). This is similar to the nonassertive conduct class of cases except that here assertions are involved by implication; consequently, “if a hearsay statement is excludable. then circumstantial

evidence implying that the hearsay statement was made is likewise excludable” (Binder, 1983:60).9

A second complication is termed “multiple hearsay. n Although it would seem logical that if an assertion is inadmissible if removed one

step from its out-of-court source, then it would surely be so if removed two steps; never- theless, exceptions to the hearsay rule could permit admission of the “hearsay on hearsay” (Weinstein et al., 1983).” Before examining these numerous exceptions to the hearsay rule, however, it should be noted that a party hop- ing to exclude evidence by wrongfully caus- ing the unavailability at trial of a witness thereby (if so determined by the judge) waives objection to the introduction to otherwise inadmissible hearsay evidence that the opponent must use in lieu of the direct testimony of the witness (Binder, 1983:63). In the adversary system in the United States, moreover, simple failure of an attorney to make timely objection to introduction of hearsay evidence by his or her opponent also constitutes waiver of the objection (Binder, 1983:64).

As indicated, in addition to those situations in which the hearsay rule becomes inoperable because of a waiver of objection, there are numerous situations in which the rule does not operate to exclude evidence because of some exception. ’ ’ These exceptions are many, but are generally founded in alternative indicia of the reliability of, and perhaps in a compelling necessity for, the evidence. I2 Hearsay may, after all, be highly probative and therefore highly desirable from a relevancy standpoint.

The effect of these exceptions is to narrow significantly the scope of hearsay as an exclusionary rule. Much relevant evidence that would otherwise be excluded as inadmissible hearsay can be and will be admitted if it can be shown to come within an exception. The key to determining whether a given assertion offered to prove its truth can be admitted via an exception is to determine whether within the circumstances surrounding the making of the assertion sufficient indicia of reliability inhere to allow such an assertion to fit within


the corresponding conceptual classification, that is, exception, based upon those indicia. Thus, if an out-of-court assertion can reason- ably be categorized, for example, as an “admission” or a ‘dying declaration,” then it will be admissible at trial. Though some exceptions, such as common-law declaration against interest, often require that the original out-of- court declarant be unavailable at trial or require some other foundation to be laid before evidence falling thereunder can be admitted, nonetheless, the evidence will be admitted.

Categorization of facts and circumstances is a tricky business, of course, and in fact is the central intellectual challenge in citing precedent either to analogize or to distinguish cases under stare decisis. Still, forty fact- and circumstance-based exceptions to the hearsay rule have been identified.13 It is beyond the scope of this article to discuss the respective facts and circumstances upon which each is based; it should be noted, however, that the common criterion is trustworthiness in spite of the hearsay character.

Binder has enumerated the forty exceptions:

1. 2.

3. 4.

5.

6.

7. 8. 9.

10. 11. 12.

13. 14.

15.

16.

17.

Present sense impression; Excited utterance (spontaneous exclamation); Assertion of then-existing fact; Assertion of then-existing physical or emo- tional feeling; Assertion of memory or belief concerning a will;

38. 39. 40.

Market report or similar commercial publication; Assertion in learned treatise; Reputation concerning pedigree; Reputation concerning a land boundary; Reputation concerning an event of general history; Reputation as to character; Criminal conviction offered to prove a fact essential to sustain conviction; Judgment offered to prove a matter of pedigree, general history, or boundaries, essential to judgment. Former testimony; Dying declaration; Admission of a party opponent;‘4 Assertion (declaration) against interest; Assertion of pedigree; Assertion as to private boundary; Prior inconsistent statement of witness; Prior consistent statement of witness; Prior statement of identification; Attestation of a subscribing witness; Assertion by voter; Explanation by a defendant of possession of stolen property in a prosecution for theft; Certification of a small bill; Certification by a governmental official; Other assertion with circumstantial guar- antees of trustworthiness (“residual” exception). (1983:83-84)

Two other matters must be mentioned in regard to introduction of what would otherwise be inadmissible hearsay. In regard to the first Binder has noted that,

Assertion for the purpose of medical di- agnosis or treatment; Recorded recollection; Entry in business record; Assertion of then-existing motive; Entry in public record; Record of vital statistics; Assertion of pedigree in record of a reli- gious organization; Assertion of pedigree in a family record; Assertion in a marriage, baptismal, or similar certificate concerning performance of ceremony; Record of a document affecting interest in

property ; Assertion in a document affecting interest in property;

Once hearsay is admitted in evidence, either because of lack of an objection or because it falls within an exception to the hearsay rule, an adverse party may impeach declarant’s credibility as if declarant had testified in person in court. But declarant need not be con- fronted with, or given opportunity to deny or explain, evidence of an inconsistent statement or conduct. (1983:87)

The second matter relates to that “confrontation.” The hearsay rule applies to both civil and criminal cases (Binder, 1983:68), but in the latter a further complication arises out of the Sixth Amendment of the federal Consti- tution: the defendant’s right of confrontation

Assertion in an ancient document; with witnesses against him.15 Simply stated,

18.

19. 20. 21. 22.

23. 24.

25.

26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.

270 DENNIS MURPHY

“exception to the hearsay rule is no guarantee of complianceni6 with the confrontation clause (Binder, 1983:69).

Like most liberties guaranteed by the Bill of Rights, the right of confrontation is not ab- solute (Binder, 1983:70). Ohio v. Roberts, a 1980 Supreme Court case, held that should the government adduce hearsay evidence in its case against a criminal defendant, without bringing forward the out-of-court declarant as a witness subjected to adequate cross- examination regarding the assertion in ques-

tion, it is violative of the confrontation clause

unless:

The hearsay possesses adequate “indica of reliability,” and either

a. The de&rant is unavailable despite the government’s good faith efforts to ob- tain his presence at trial, or

b. The utility of confrontation at trial is re- mote. (Binder, 1983:70)

Hearsay, then, can be used as part of the prosecution’s case-in-chief” but only if consistent with the policy undergirding the defendant’s right to confrontation. ” The next and final section presents two analytical ap- proaches for understanding the hearsay rule.

UNDERSTANDING THE HEARSAY RULE

Earlier in this article Morgan (1948) was quoted as having identified four aspects of the trustworthiness criterion for excluding evidence under the hearsay rule; these were insincerity, faulty narration, memory, and perception. Tribe (1974) further developed this theme, producing a heuristic model that yielded insight into hearsay problems. I9 The model specifically helps ascertain whether use of an act or utterance as evidence would require the finder of fact to rely on the declarant’s credibility. In his survey of the area to be “triangulated,” Tribe (1974:958-59) pos- ited the following schema as the framework for developing Morgan’s points and ulti- mately for analyzing hearsay problems:

The process of “triangulating hearsay” basically consists of “forging a reliable chain of inferences, from an act or utterance of a person not subject to contemporaneous in-court cross-examination about that act or utterance, to an event that the act or utterance is sup- posed to reflect” (Tribe, 1974). It is necessary to remember that the event itself (C), which evidence of the action or utterance is being offered to prove, can appear in the schema both as a reality external to the declarant and as a logical conclusion or ultimate inference. Arrows point both from A to C and B to C. The problem, as always in the law of evidence, is the closeness of fit between these, and, again, it is necessary to note the metaphysical assumptions underlying the statement.

Testimonial infirmity, ambiguity, or insincerity would negate the AB inference, that is, the inference that the declarant actually believed what he or she said. Even if the declarant did believe it, the BC inference that the belief itself is true could be negated by testimonial infirmity, erroneous memory, or faulty perception. Here the idea is that even though the declarant believed it, he or she was wrong. Thus, although AC indicates an os- tensible reality, much as direct testimony on the witness stand would, if the evidence is hearsay because the declarant is not on the witness stand, the route must be through B, with the attendant problems noted. Com- pounding this, of course, is the problem of these same testimonial infirmities plaguing the hearsay repeater who is testifying as to what he or she heard or saw. The crucial point, however, is that this person, the percipient witness, can be cross-examined.

This model can be of considerable help in analyzing hearsay problems generally, as well


as in identifying the indicia of reliability of say problem posed at the outset of this arti-

the exceptions to the hearsay rule in partic- cle. Would quoting the sentence, “Hearsay is

ular. It is submitted, however, that an alter- the least understood exclusionary rule,” be

native analytical framework is of greater util- admissible evidence on the issue of whether

ity in analyzing hearsay because it is based it is the hearsay rule or the best evidence rule

upon a framework of broader applicability to that is the least understood of all the rules

all evidentiary questions. that exclude evidence?

The reader is directed to the five-pronged test for evidence presented in the first section. This test comprises the sequential questions, with the a priori supposition (except in regard to hearsay issues) that the evidence is competent:

In addressing the first question in the chart, it should be noted that the form of the evidence is clearly testimonial. Regarding the second question, the referent (the sentence quoted at the beginning of the article) is an utterance. It is, moreover, clearly an assertive utterance. If it is being offered to prove the truth of the assertion (it is), then it becomes potentially admissible hearsay (PAH), that is, hearsay evidence which, provided it comes under an exception to the hearsay rule,

and provided the issue to which it is offered

is material, and provided that the evidence is relevant to (logically probative of) that issue, and, finally, provided that the probative value of the evidence outweighs any prejudicial effect it might generate, will be admissible. In this case, the potentially admissible hearsay (PAH) that resulted from affirming that the statement was offered to prove its own truth might have met all those provisos were it not for the next question, whether the evidence comes within an established hearsay rule exception. The only exception that might ar- guably apply is one governing an assertion in a learned treatise. If neither expert testimony nor judicial notice establishes that this article is a learned treatise, then there is no applicable exception, and the statement becomes (because of the negative answer to the question about applicable exceptions) inadmissible (formerly) potentially admissible hearsay. Use of the chart in other problems of an apparent hearsay nature (if the utterance or conduct is classified “nonhearsay,” then the problem is not really a hearsay problem, though it would at first blush appear to be) should prove similarly satisfactory. It is con- ceded that complications, such as the non- applicability of the federal rules hearsay definition to some circumstances traditionally dealt with via an established exception and the issue of whether some gray areas (e.g., state of mind, intention, nonassertive conduct)

1. 2.

3. 4.

5.

What is the evidence? What is the evidence being offered to prove? (What is the issue?) Is this issue material? Is the evidence logically probative of this issue? Does the probative value of the evidence outweigh the prejudicial effect?

With only slight modification, this test can be tailored to analysis of apparent hearsay problems. Before such modification, however, it is important to consider a three-way taxonomy of apparent hearsay evidence:

1. 2.

3.

Evidence inadmissible because it is hearsay; Evidence potentially admissible even though it is hearsay (applicability of a hearsay exception); Evidence potentially admissible that is not hearsay (nonhearsay, either because it is not assertive or because it is assertive but not offered to prove the truth of the assertion).

The potentiality factor reflects the constant

application of the evidentiary quality control devices of materiality, logical relevancy, and legal relevancy. If all these criteria are sat- isfied, then the simplified taxonomy consists of inadmissible hearsay, admissible hearsay (via an exception),20 and nonhearsay.*’ The chart shows how the modified five-pronged test for evidence, in conjunction with the full three-way taxonomy of apparent hearsay evidence, provides a simple framework for analysis of apparent hearsay problems (and other evidence problems):22

It may prove instructive to apply this

framework for analysis to the apparent hear-

ALL EVIDENCE

Authenticated

(Authenticated)

What is the form of the evidence?

What is the referent of the

evidence?

Is the evidence assertive?

Is the evidence being offered

to prove the truth of the

matter

(if any) asserted?

Does the evidence come within

an established exception

to the hearsay rule?

Is the issue material?

Is the evidence logically

probative of that issue?

Does the probative value of the

evidence outweigh its prejudicial

effect?

Testimonial

Utterance

(oral or written)

PAH

PAN

ADZTTED

LEGEND:

AEV - Admissible Evidence

(If Properly Offered)

IEV - Inadmissible Evidence

PAE - Potentially Admissible Evidence

PAH - Potentially Admissible Hearsay

PAN - Potentially Admissible Nonhearsay

QI

- Question Inapplicable

QAA - Question Answered - Affirmative

NO

a IEV

Judicial

Notice

A*Y

Permissible

TED

*Referents other than conduct or

utterance could also be served

by any of the three major forms.


are better seen as exceptions to the hearsay rule or as nonhearsay, may at times make the approach seem simplistic. Thoughtful application of the chart, with particular attention to the key query of whether the evidence of the assertion is being offered to prove the truth thereof, will nonetheless yield consistently accurate analysis.

Hearsay has traditionally been, for a variety of reasons, the least understood exclusionary rule. Logical application has proven problematic at best. It is submitted that the analytical apparatus introduced in this article could be a useful tool for logical application of, and thus understanding, the hearsay rule.

NOTES

1. See also Frank, What Courts Do In Fact, Illinois Law Review 26 (1932):645.

2. It should be noted that, whatever their shortcom- ings, the rules of evidence are a significant improve- ment, at least with respect to the criterion of rationality, over trial by ordeal, trial by battle, and even trial by wager of law (compurgation). Also noteworthy is the context in which the rules of evidence operate, namely, the dynamics of the trial (criminal or civil) in particular and the adversarial system in general. In this regard the prevailing wisdom in common-law countries always has been that the give-and-take of the adversarial system is the surest path to truth. Some, however, would dissent: “ our adversarial system rates truth too low among the values that institutions of justice are meant to serve” (Frankel, The Search for Truth-An Umpireal View, University ofPennsylvania Law Review 123 (1975):1031. In a more recent questioning of the adversary system, Warren Burger, in an address to the American Bar As- sociation (12 February 1984, Las Vegas, Nevada), called for a study of its consequences.

3. Thus clarified is whcthcr the cvidcnce is direct or circumstantial, real, documentary, testimonial, or ju- dicially noticed. Except for hearsay issues, the proffered evidence is assumed to be competent.

4. Illustrative of this point is the misleadingly named (at least insofar as its implied breadth of applicability is concerned) “best evidence rule,” which applies only to documentary evidence.

5. See The Language of the Law-A Symposium, Western Reserve Law Review 9 (1958): 115. Of course, the historical development of language is by definition experiential; only the most sanguine policymaker would aver that history evinces strict logic.

6. Compare the language of the Fifth Amendment double jeopardy provision: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Even if the term “jeopardy” is clear, what is the “same offense”? The law surrounding inter- pretation and application of the provision is complex and

often in apparent conflict with the plain meaning of the phrase. Beyond this language problem for hearsay is also its operation vis-a-vis the function of the jury. See Note, The Theoretical Foundation of the Hearsay Rule, Har- vard Law Review 93(1980): 1786.

7. In regard to the Burger court’s Anderson rationale for cross-examination, the Chief Justice’s 1984 speech to the American Bar Association cited in note 2 may signal a coming shift in the court’s viewpoint.

8. See Wright v. Doe d. Tarham, 7 Ad. & El. 313 (Exchequer Chamber, 1837): “Evidence of the conduct of a deceased captain on a question of seaworthiness, who, after examining every part of the vessel, embarked on it with his family” was illustrative dictum of inadmissible nonassertive conduct evidence.

9. An example cited in J. Weinstein, J. Mansfield, N. Abrams, and M. Berger, Cases and Materials on Evidence, 7th ed. (1983):549 is an insanity defense murder case. After four psychiatrists examined the accused, one testified that all four agreed that the accused was sane. Such testimony implies that the other three psychiatrists had asserted, in some manner, that the accused was sane, and, therefore, is inadmissible hearsay.

10. An example, based on exceptions to the hearsay rule discussed later would be when X testifies in court that he heard Y spontaneously exclaim the words he had just heard 2 mutter as his dying declaration. X’s testimony would be “hearsay on hearsay,” but admissible because each hearsay declaration would be indepen- dently admissible via an exception to the rule (spontaneous exclamation exception and dying declaration exception).

11. It should be noted that these exceptions allow hearsay evidence to be admitted at trial, that is, in a court trial per se. Hearsay that would bc cxcludablc at trial is nonetheless admitted in a plethora of other set- tings: probable cause “hearings” preliminary to issuance of arrest or search warrants; pretrial suppression hearings; extradition hearings; at sentencing; as substantial evidence supporting administrative adjudication; grand juries; in deciding a motion for summary judgment (Binder, 1983:58-59).

12. If the topic were washed with Holmes’s “cynical acid,” perhaps other explanations for the existence and arguable predominance or exceptions to the rule might arise: “The courts are able to function at all only by ignoring their rules in this respect a good deal of the time.” That is, “The sheer necessity of getting the work of the courts done required the creation of an increasing number of exceptions to the rule of exclusion of hearsay

“(Loevinger 1958).

13. The federal rules of evidence recognize only thirty- six of the forty but allow evidence falling under four of the thirty-six to be admitted by categorizing these as outside the definition of hearsay (witness’s prior inconsistent statement, witness’s prior consistent statement, prior statement of identification of a person, and admission by a party opponent) rather than as exceptions per se. The final four exceptions are recognized by various state courts and may be admissible in federal courts under the residual exception Binder (1983:86). Note, however, the possible arbitrariness of categorization of evidence into inadmissible hearsay and admissihle-

274 DENNIS MURPHY

via-an-exception hearsay: “we confuse and mislead our- selves by speaking and thinking of these things in terms of categorical differences rather than differences of degree on a continuum” (Loevinger, 1958).

14. This exception embraces confessions and adop- tive admissions, which include “admissions by silence” or “tacit admissions,” as, for example, when one is accused of something that the law presumes a reasonable person would expressly deny but the accused says noth- ing. This is a controversial exception to the hearsay rule because many people in this culture would remain silent so as not to “dignify the accusation with a denial”; these people are certainly not adopting the accusation! See Gamble, The Tacit Admission Rule: Unreliable and Un- constitutional-A Doctrine Ripe for Abandonment, Georgia Law Review 14(1979):27. It also includes vi- carious admissions-assertions by agent, coconspirator or predecessor in interest (Binder 1983:316).

15. See Barber v. Page (1968): 390 U.S. 719, de- fining the right as including both the opportunity to cross- examine witnesses and opportunity for the jury to weigh the demeanor of the witness. The right is applicable to the states through incorporation into the Fourteenth Amendment’s due process clause in Pointer v. Texas (1965): 380 U.S. 400, but all states except for Idaho have similar confrontation rights pursuant to state con- stitution or statute (Binder, 1983:69).

16. This is the upshot of California v. Green (1970): 399 U.S. 149, the seminal case in the area.

17. As noted earlier, hearsay is permissible in a variety of pretrial contexts (See note 11.) Indeed, hearsay exclusion may be less rigorous in bench trials (See Davis, Hearsay in Nonjury Cases, Harvard Law Review 83 [1970]:1362.)

18. It should be noted that although the constitutional right to confront witnesses extends protection only to the defendant, the hearsay rule itself applies, subject to constitutional limitations, including the right of the defendant to have admitted certain declarations against penal interest of third parties (Chambers v. Miss. (1973): 410 U.S. 284), to both defense and prosecution, See P. Johnson, The Elements of Criminal Due Process, 1975, 268.

19. This analytical apparatus is cited m two leading casebooks on the law of evidence, Louisell, et al., Cases and Materials on Evidence, 198 1 and Weinstein, et al., Cases and Materials on Evidence, 1983.

20. But again, Loevinger (1958) noted that there is patent “absurdity” in “forcing the infinite variety of the kinds of evidence into the Procrustean beds” of inadmissible and admissible hearsay.

21. Nonhearsay is important because it often appears to be hearsay, but is not. Nonassertive words or conduct can look like hearsay but are not, by virtue of their nonassertive nature. Assertive words (utterances) or conduct are hearsay only if offered to prove the truth of the assertion. Examples of nonhearsay include statements with direct legal significance, also called “verbal acts” (words in a contract, will, or defamation), and statements taken to indicate the declarant’s mental health or implying his or her state of mind (c.g., knowledge, in- tent, motive). This can be quite tricky, but the key re-

mains whether the assertion is being offered to prove its truth or for some other--any other-reason. If the latter, then the evidence is nonhearsay and, although of course governed by the other evidentiary quality control devices, cannot be excluded by operation of the hearsay rule (Binder 1983). If there could be confusion as to whether a jury will misapply some nonhearsay toward the matter asserted, instructions by the judge are proper to restrict its scope.

22. Several additional explanatory matters should be noted. Most basically, except for hearsay issues, competency in general (e.g., that testimonial evidence is offered by competent witnesses and that documentary evidence comports with the best evidence rule) is assumed in order to simplify the analysis. Proper procedures must be followed in order to have evidence admitted. This includes the laying of a proper foundation, often to include authentication of documents and corresponding “authentication” of real evidence (e.g., testimony on its identity and chain of custody). Proper procedure also includes limitation of judicial notice to certain matters, though even those matters must still embrace the evidentiary quality control devices. Real evidence (e.g., plaster casts of footprints offered to prove flight and sought to be admitted via the notion of “admission by flight”) can give rise to apparent hearsay problems, but usually such problems involve the testimonial or documentary forms. All three forms, as indicated by the asterisk and footnote, could provide evidence with a referent other than an utterance or conduct, but lines were not drawn in order to avoid confusion and to emphasize the hearsay problem here. Finally, it should be noted that the final chart question, dealing with what traditionally has been termed “legal relevancy,” may not be as dispositive in the abstract as materiality and logical relevancy because of the greater judicial discretion involved. Even the federal rules of evidence, which seem to have expanded and elevated the importance of this basis for potential exclusion, speak in permissive terms: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the dan- ger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence” (Rule 403, emphasis added).

REFERENCES

Binder, D. (1983). Hearsay handbook, 2d ed. Colorado Springs, CO: Shepard’s/McCraw-Hill.

Cleary, E. (1972). McCormick’s handbook of the law of evidence, 2d ed. St. Paul, MN: West Pub. Co.

Davis, K. (1970). Hearsay in nonjury cases. Harv Law Rev 83: 1362268.

Falknor, J. (1956). Indirect hearsay. Tulane Law R 31:33 78.

Frank, J. (1932). What courts do in fact. Ill Law Rev 26:645-708.

Frankel, M. (1975). The search for truth-An umpireal view. Univ Penn Law Rev 123:1031-59.

Gamble, C. (1979). The tacit admission rule: Unreliable and unconstitutional-a doctrine ripe for abandonment. GA Law R 14:27-44.

Johnson, P. (1975). The elements of criminal due process. St. Paul: West Pub. Co.


Lasswell, H., and McDougal, M. (197 1). Criteria for a theory about law. So CulifL Rev 44:362-98.

Loevinger, L. (1958). Facts, evidence and legal proof. West Reserve Law Rev 9: 154-69.

Louisell, D.; Kaplan, J.; and Waltz, J. (1981). Cases and materials on evidence, 4th ed. Mineola, NY: Foundation Press.

Mellinkoff, D. (1963). The language of the law. Bos- ton: Little, Brown.

Morgan, E. (1948). Hearsay dangers and the application of the hearsay concept. Han Law Rev 62:177 219.

- (1980). The theoretical foundation of the hearsay rule. Hat-v Law Rev 93:1786-1815.

Probert, W. (1958). Language of the law: A symposium. West Reserve Law Rev 9:115-218.

Tribe, L. (1974). Triangulating hearsay. Hat-v Law Rev 37~956-74.

Weinstein, J.; Mansfield, J.; Abrams, N.; and Berger, M., 7th ed. (1983). Cases and materials on evidence. Mineola. NY: Foundation Press.

Wheaton, C. (1959). What is hearsay? IA Law Rev 46: 207-49.

hearsay: the least understood exclusionary rule

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