March 10, 2021

Hearsay.  A simple word, one misunderstood by lawyers and many judges.  To some, repetition of words (or even sounds) is automatically hearsay, a clearly over-inclusive approach; to others, the view is under-inclusive, failing to recognize some words as having assertive quality.

Hearsay scholarship is extraordinarily varied, but little has started off from the point addressed by Magistrate Judge (and Evidence scholar) Richard Lloret.  Identifying the three core components of hearsay – the need for a human declarant, an assertion made by that declarant, and the ultimate use being the acceptance of that assertion for its truth – Judge Lloret deconstructs what an assertion is at its core and its outer limits.

The author does this first by stepping beyond legal authority to define assertion as a philosophic construct and then use that to inform the law of hearsay, rather than make assertion an elastic concept shaped by individual views of how broad or narrow the hearsay rule is (or ought to be).  After identifying 8 facets of assertions, he distills this to a ‘litmus test’ of both simplicity and utility – if the words at issue make sense when prefaced with the phrase “is it true that…,” it is an assertion for hearsay purposes.

Judge Lloret works from there to show how to reason out hearsay conundra, and to avoid the trap of implied assertions.  For the latter, he makes clear that it will be Confrontation and Rule 403 considerations, not Rules 801-807, that must be turned to.

ASSERTION AND HEARSAY is an extremely thoughtful and persuasive article.  For those seeking to grasp the core of hearsay law, and from there to wisely argue or decide the admissibility and proper use of out-of-court statements, it is a more-than-worthwhile point of departure.


Richard Lloret, Assertion and Hearsay, 125 DICK. L. REV.347 (2021).