When Confronted with a Hearsay Analysis, Do Not Turn to the Hearsay Exceptions First

In an age where cases settle far more often than cases go to trial, it is important for litigators to keep their knowledge regarding evidentiary rules sharp.  What good is a "smoking gun" document during settlement discussions or at trial if the applicable rules of evidence, for whatever reason, might prevent a jury from ever seeing it?  What evidentiary rule might be the most challenging one to stand in your smoking gun's way?  Hearsay.

For a word used so casually in common parlance, hearsay is treated anything but casually by the Rules of Evidence.  The Federal Rules of Evidence, for example, render hearsay "inadmissible" and define hearsay as an out-of-court statement "offered in evidence to prove the truth of the matter asserted."  Fed. R. Evid. 801(c), 802.  Thereafter, twenty-three exceptions to the rule against hearsay are listed.  Fed. R. Evid. 803(1)-(23).  Rules 804 and 807 create even more exceptions.   Ultimately, there are more exceptions to the rule against hearsay than there are operative words in the legal definition of hearsay.  For that reason among many others, litigators should never "jump" or "skip" to the hearsay exceptions when conducting a hearsay analysis.  Instead, the analysis should begin with the definition of hearsay and generate inquiries resembling the following:  Is the subject of my hearsay analysis even hearsay at all?  Is the subject of my hearsay analysis going to be offered to prove the truth of the matter asserted?  Is the subject of my hearsay analysis even capable of being offered to prove the truth of the matter asserted?

Litigators who always ask themselves the above questions when confronted with a hearsay issue should, in theory, have no problem remembering the rule that speech that is incapable of being proven true or false falls outside the definition of hearsay.[1] With that rule in mind, how does this issue come up in practice?  Business litigators, for example, are often inundated with documents such as checks during the discovery process.  The checks might be objectionable for a variety of reasons, but hearsay issues should be among the easiest to resolve.  This is because a check is an "order" to a financial institution carrying no truth value,[2] and it is thus impossible to prove its truth or falsity.  Accordingly, checks are often deemed non-hearsay because they literally cannot be offered to prove the truth of the matter asserted.  Courts treat questions similarly using the same rationale.  United States v. Wright, 343 F.3d 849, 865 (6th Cir. 2003).

[1] United States v. Rodriguez-Lopez, 565 F.3d 312 (6th Cir. 2009) ("Indeed, if the statements were questions or commands, they could not—absent some indication that the statements were actually code for something else—be offered for their truth because they would not be assertive speech at all.  They would not assert a proposition that could be true or false.").

[2] United States v. Davis, 596 F.3d 852, 856-857 (D.C. Cir. 2010) ("Davis is correct that like checks, money orders are not hearsay.  They are legally operative documents with a meaning independent of the truth of the words they display.  As 'verbal acts,' their significance 'lies solely in the fact that [they were] made, [so] no issue is raised as to the truth of anything asserted.'  A $100 money order made out to The Hartford instructs a financial institution to disburse $100 to The Hartford.  It would make no sense to ask whether the money order was true.  Such an 'instruction is, by its nature, neither true nor false and thus cannot be offered for its truth.'") (internal citations omitted).

About The Author

Jade Smarda |