Hearsay: Debunking or Extolling the Evidence Once Admitted

Lawyers fight over hearsay admissibility, concentrating on whether foundational requirements have been met. But, once admitted, the hearsay is just ‘there.’ The leading textbooks on trial advocacy offer no advice on how to deal with hearsay, whether for the proponent to convince the jury of its reliability or the opponent to show its deficiencies. The lawyer’s toolbox seems empty.

In actuality, the advocate has several mechanisms to attack or endorse hearsay evidence. For supporting the hearsay, the advocate has the reliability rationale for each hearsay exception. There is no barrier to the proponent incorporating those rationales into a closing argument and telling jurors

  • Why does the law permit you to hear what the patient told the Doctor? Because when you go to get treatment, you tell the Doctor the truth to get the best care.
  • You got to read the text message sent as the accident was unfolding. When people describe an event as it unfolds, it is the event talking, and not any mental manipulation.
  • It’s in the daily business inventory. You know those records are accurate – businesses have systems in place to record data correctly – otherwise the business can’t operate.

It is in the Evidence Code and its notes and commentaries that the “why” answer as to reliability is found. The advocate must just find those reasons and link them to juror common experience and common sense.

But what about the attack, the discounting of hearsay evidence? One approach is derived from the “triangle” of hearsay deficiencies developed by Professor Laurence Tribe.

Hearsay Triangle

What is Tribe illustrating? First, that when the original declarant asserts a fact, the jury is unable to assess whether it was uttered clearly or ambiguously [unless recorded], and whether the message was delivered with sincerity or duplicitousness. Those are the concerns on the left side of the pyramid. Tribe’s next point – the right side of the triangle – is that even if unambiguous and sincere, the out-of-court assertion is useful only if it is not the product of faulty perception or, by the time of utterance, erroneous memory.

What does the triangle offer the hearsay opponent? Four grounds to attack the hearsay – either when questioning the in-court ‘repeater’ of the hearsay or in closing argument. Care must be taken when cross-examination is the chosen method – unless the answer is known, the questioner may get ‘burned.’ But some sample questions may illustrate the types of attacks available:

  • You’ve told us what your friend reported, but you weren’t there when your friend observed things, right? So you don’t know how close up or far away she was, or how tired or alert?
  • The person you heard say those words, you don’t know really well, do you? So you don’t know her attitude toward my client, do you?
  • The event you were told about happened in March, but the conversation you are repeating happened days later, correct?

That the Tribe triangle offers a framework for discrediting or devaluing hearsay is not mere speculation. The research article Testing Tribe’s Triangle: Juries, Hearsay, and Psychological Distance, 103 Geo. L.J. 879 (April, 2015) showed in mock trial contexts that jurors gave less weight to hearsay evidence when the Tribe factors – dubbed “infirmities” – were shown.

The Tribe triangle offers an attack on the hearsay statement. What too many advocates forget (if they ever learned) is that the Rules of Evidence also permit an attack on the hearsay declarant. [A LEXIS search of the phrase “Federal Rule of Evidence 806] found only 76 OPINIONS even citing the provision, showing a woeful under-use of the Rule.] Rule 806 provides that

When a hearsay statement–or a statement described in Rule 801(d)(2)(C), (D), or (E)–has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.

USCS Fed Rules Evid R 806. Bias, inconsistent statements, character for untruthfulness, capacity – all these and more are fair game in challenging the absent – and unable to respond – hearsay speaker.

The bottom line? Laying or challenging the foundation for hearsay admissibility will determine whether a jury will be exposed to an out of court assertion; but once admitted, there are essential tools for both the proponent and opponent to affect what weight that testimony will be given.