Seven Steps to (Hearsay) Heaven

The great jazz trumpeter Miles Davis recorded his classic Seven Steps to Heaven in 1963, with no explanation as to why this was the number of steps needed to ascend. He just laid down a seven beat, seven note structure and the music flew.

Well, perhaps there are an equal number of steps to “hearsay heaven,” that place lawyers want and need to ascend to when proffering or confronting hearsay evidence. Yet virtually no attorney follows all of them, focusing either on admissibility or exclusion without regard to content, effective use or minimization should the proof be allowed. So this guide will offer the steps necessary to completely address hearsay in the courtroom.

Step 1 – Is there an assertion by a human?

The first reminder here is that hearsay comes from humans, so barking alerts by a drug dog, or computer printouts of telephone records are not covered by the rule. And what is an assertion? In effect, it is a factual declaration, a sentence that could be restated with the words “it is true that” at the front and still retain its meaning. So “I hate you” is an assertion, but “go to #$!!” is not. The latter may be said assertively, but is not hearsay.

And if it is an assertion? Go on to step 2; and if not, turn to relevance and other rules.

Step 2 – is the assertion being offered for its truth?

In this trial, are we asking the jury to believe the assertions were made and that they are true? Unless both are answered “yes,” there is no hearsay issue and, again, the focus must turn to relevance and other rules.

And what is “for its truth?” Where confusion often arises is between the ultimate issue being proved [in a murder trial, the ‘who did it’ issue] and subordinate facts. That distinction is of no moment in hearsay analysis. Even the most minor fact, such as the weather or what color sweater the perpetrator wore, if proved by an out-of-court assertion, is “for its truth.” So, if the assertion is for its truth, go to step 4; and if it is offered for a reason other than for its truth, go to step 3.

Step 3 – is the assertion being offered for a reason other than for its truth?

This is where rules 401 and 403 come to the fore. Imagine the police officer who testifies “I arrested Jules after ten people told me he committed the murder.” A cogent argument can be made that this is not offered for its truth – that Jules did commit the murder – but to explain why Jules was arrested.

Yet the 401 and 403 concerns should be evident and controlling in this circumstance. Why Jules was arrested is rarely relevant; and even if it has some bearing on the case there is a manifest risk that the jury will believe that ten people did identify Jules as the murderer, a paradigmatic case of unfair prejudice and misleading the factfinder. This risk of hearsay “spillover” warrants exclusion in many cases.

Step 4 – if offered for its truth, is there a hearsay rule that permits admission?

This step should be fairly simple – the application of Rules 801, 803, 804 and 807 to see if any ground(s) for admissibility may be found. If “yes,” the issue then is foundation – establishing the predicate facts that prove the applicability of the hearsay exception or exemption.

Step 5 – if it meets a hearsay exception or exemption, are there other rules that preclude or restrict admission?

The phenomenon of tunnel vision is too often predominant when hearsay is at issue. Lawyers [and judges] become so focused on the hearsay analysis that they forget to examine the content, which may be barred by other rules including character, lay opinion, subsequent remedial measure, etc. So, the best step, after determining that the form of the answer meets a hearsay exception, is to then forget the hearsay rule(s) at issue, pretend this is coming from a live witness, and analyze it for admissibility solely by scrutinizing the contents.

Step 6 – if the hearsay is being admitted, the proponent must not just ask the questions but then prove its reliability, while the opponent must cast doubt on its veracity or strength.

Too many lawyers forget that the battle over hearsay does not end with the decision to admit the assertion. The fact finder then has to assign weight.

For the proponent, this may be done in a number of ways. Corroboration supports hearsay; so, too, do the rationales for the rules themselves. If the statement was made for medical diagnosis, the rationale of the rule – that people tell their doctors the truth in order to get proper and necessary medical care – can be argued in closing to show reliability.

And the opponent? There are multiple ways to devalue the hearsay. Again, contrary evidence may show it to have little or no value; and so too may problems with the in-court witness, the ‘channeler’ or delivery vehicle for the hearsay statement. The in court witness may not have heard or remembered well, or have bias or other credibility flaws; and the in court witness also may not be able to answer questions about the declarant’s initial opportunity to perceive or about the declarant’s memory.

Step 7 – don’t forget the invisible witness.

Too few lawyers [and judges] consider and apply Rule 806. One of the most potent rules of evidence, 806 permits impeachment of the hearsay declarant the same as if the speaker was on the witness stand, And, of course, the declarant can’t respond or explain.

These, then, are the seven steps. Okay, maybe they are only 6, and 7 is a subset of six. But I like Miles Davis. And if all lawyers adhered to these steps, it would be a form of hearsay “heaven.” The rule would be applied properly, and the evidence given its due consideration.