Evidence Quick Tip: Winning the Hearsay Game

There are few evidence topics more misunderstood than hearsay. But, in the few moments it’ll take you to read this article, you’ll not only understand hearsay but will also know how the hearsay game is played and how to win it—whether it’s played in class, on a final exam, or on the bar exam.
 

Here’s how the Hearsay Game is played. A court proceeding is going along just fine. A witness is answering the examining lawyer’s questions. And then, the witness mentions something he heard someone else say. Opposing counsel (“the opponent”) springs to her feet and objects, declaring, “Hearsay!” Everyone looks at the judge (“the referee”) inquisitively.

Game on.
 

The Hearsay Game’s objective is straightforward. The opponent wants to exclude the evidence. The lawyer who was examining the witness (“the proponent”) wants to admit the evidence. Whoever wins gets the point.

Every game has rules, and the Hearsay Game is no exception. However, unlike its objective, the Hearsay Game’s rules are not straightforward.
 
The most important hearsay rules are contained in Rules 801 through 804 of the Federal Rules of Evidence.
 

Rule 801 does 2 things. First, it defines hearsay. Second, it expressly excludes 2 categories of statements from that definition.
 

Rule 802 declares that hearsay is inadmissible unless the evidentiary rules, a federal statute, or a United States Supreme Court rule provides otherwise.
 

Collectively, Rules 803 and 804 contain 30 exceptions to the hearsay rule that cover nearly every kind of statement a person can make.
 

After the opponent’s objection, the proponent must figure out what move to make to get the evidence admitted. There are 4 general moves the proponent can make.
 

The proponent’s opening move should always be the definitional move. In this move, the proponent argues that the objectionable statement is not, in fact, hearsay as the rule defines it.
 
Rule 801 defines hearsay as an out-of-court statement, offered in court, to prove the truth of the matter asserted in the statement. Thus, the proponent’s definitional move involves arguing that the statement doesn’t satisfy some part of this definition. The arguments go something like this:

If the proponent doesn’t score the point with the definitional move, the next move is the exclusion move.
 

In the exclusion move, the proponent tries to get the statement admitted under one of Rule 801(d)’s express exclusions for 2 categories of statements—a declarant-witness’s prior statement or an opposing party’s statement. Failing that, the proponent will try the exception move.
 

In the exception move, the proponent tries to get the statement admitted under one of the 30 exceptions set forth in Rules 803 and 804. To decide which exception to try, the proponent must first determine whether the person who made the out-of-court statement (the declarant) is available to testify at the current proceeding. This determination is important because, although Rule 803’s exceptions apply regardless of whether the declarant is available to testify at the current proceeding, Rule 804’s exclusions apply only if the declarant is unavailable (as defined by the Rules) to testify at the current proceeding. Therefore, if the declarant is available to testify at the current proceeding, the proponent may not try to admit the statement under any of Rule 804’s exceptions.
 
All the while, the opponent is arguing against the proponent’s moves—trying to show that the statement satisfies the definition of hearsay, isn’t expressly excluded as a declarant-witness’s prior statement or an opposing party’s statement, and doesn’t come close to satisfying even a single one of the 30 exceptions in Rules 803 and 804.
 

The final move that’s important in the Hearsay Game derives from Rule 807’s residual exception. It’s the equivalent of a Hail Mary pass in football. Rule 807 gives the proponent one last-ditch chance at admitting a statement that hasn’t been admitted under the prior moves.
 
The residual exception permits the admission of a statement that, despite failing to satisfy any of Rule 803’s or 804’s exceptions, is, under the totality of the circumstances, sufficiently trustworthy and more probative on the matter for which it was offered than any other evidence that the proponent could reasonably obtain.
 
If the proponent can make this showing, it’ll win the point.
 

After some back and forth between the proponent and the opponent, the referee will rule on the statement’s admissibility. Typically, the referee will make one of 4 calls—(1) admit the evidence, (2) exclude the evidence, (3) admit the evidence and instruct the jury about how it may use the evidence in deciding the case, or (4) defer the ruling until some later time.
 
On appeal, the referee’s evidentiary rulings are reviewable only for an abuse of discretion. Therefore, evidentiary rulings are generally upheld on review.

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