Georgia Southern University ILL 2 5S a 2 cO = ILLiad TN Borrower: GAC Lending String: *GPM,GND,GKJ,GCO,GSU,GUA,GMU,NMW,FXN »FWA,FGM,TET,NQY,MUM,.Mi@ Journal Title: Journal of criminal justice. Volume: Volume 17 Issue: Month/Year: 1989Pages: 265-275 Article Author: Murphy, Dennis D. Article Title: “Hearsay: The Least Understood Exclusionary Rule.” Imprint: New York, Pergamon Press. ILL Number: 167966083 CAA 0 A Call #: 0200104229550 Location: ARC ODYSSEY Shipping Address: ILL--Lane Library Armstrong State University 11935 Abercorn Street Savannah, Georgia 31419 912-921-5886 ill dept@armstrong.edujournal of Criminal Justice Vol. 17, pp. 265-275 (1989) Airehts reserved. Printed in U.S.A. 0047-2352/89 $3.00 + .00 ‘Copyright ©1989 Pergamon Press ple HEARSAY: THE LEAST UNDERSTOOD EXCLUSIONARY RULE Dennis Murry Department of Government Armstrong State College Savannah, Georgia 31419-1997 ABSTRACT Though the “exclusionary rule" refers to a rule that emerged from Mapp v. Ohio, virtually all rules “of eviderive are exclusionary rules. The idea is to ferret out prior to admission potential evidence that “Js unreliable, impertinent, or not logically probative of a material issue. In the adversary system in “the United States, the search for truth may be tortuous, but if the ruth is to be known, some proffered evidence must be excluded. Among rules excluding such evidence, and foremost among those widely ssigned to dispel hearsay rule confusion. “Hearsay is the least understood exclusionary rule.” Having now read this first sentence, imagine yourself as a competent witness to- morrow in a court trial in which the key issue _ is whether the hearsay rule or the best evi- dence rule is the least understood of all the rules that exclude evidence. One of the at- tomeys asks you on direct examination which rule is the least understood; you reply by quoting the sentence above. Is your testi- mony admissible? This article seeks to answer that question through use of an analytical apparatus appro- priate for dealing with this and all other “hearsay problems.” Many stafements taken out of context can be misleading, if not pat- . ently false. Though the sentence quoted above would suffer no such metamorphosis, none- theless, examination of the hearsay rule can- isunderstood, is the hearsay rule. Through discussion of three categories of apparent hearsay evi~ dence and development of a comprehensive decision tree for evidentiary admissibility, this article is not be productive if the rule is considered apart from its context, the rules of evidence as a whole. This is the case a fortiori, since the overarching purpose of the rules of evidence is to provide a rational framework within which trath can be sought and found. This article discusses the rules of evidence in this context, focusing on a five-pronged test for evidence that.can be applied to hearsay prob- Jems in general. THE RULES OF EVIDENCE The rules of evidence, not to mention evi- dence itself, involve unavoidable philosoph- ical questions, Foremost among these is the basic problem of metaphysics, What is real- ity? Directly related to this issue is another, 265266 the epistemological, upon which most phi- Josophers—but far too few attorneys, judges, and jurors—have pondered, What is the na- ture of knowledge and truth, and what are the parameters within which the search for them is to be conducted? The descent from such abstract, ethereal amusings to the reality (whatever that is) of a court of law provides no escape from the basic philosophical questions. Seemingly straightforward queries such as “What hap- pened?” and commands such as “Just the facts, please” may be indispensable to the court process, but their very simplicity deceives persons unaware of the implicit philosophical assumptions. Legal scholars and general semanticists have grappled with these problems through appli- cation of concepts such as normative ambi- guity (Lasswell and McDougal, 1971) and levels of abstraction, but the point here is a simpler one: as with the jurisprudential par- adigm through which an individual concep- tualizes what law is and how it operates, it is necessary also to choose, consciously or unconsciously, a Weltanschauung that em- braces a set of philosophical assumptions. Only then is it possible to make sense out of whatever “reality” is perceived. The “facts” concerning “what happened” are also an issue. Unfortunately, the search for truth in court is unexpectedly complicated by the possibility that seemingly clear con- cepts such as fact, opinion, evidence, and proof themselves have a philosophical di- mension. Loevinger (1958) noted: ‘The difference between what a witness will report as his observation of a “fact” and what may be reported as an “opinion” may rest en- tirely on the degree of intelligence, education and sophistication of the witness or it may test upon the court's reaction to the testimony offered." This “distinction” between fact and opinion is of no small moment, given the general pro- hibition to the admissibility of percipient wit- ness “opinion” “evidence.” With the understanding, then, that both an epistemological assumption and an ontolog- ical proposition about “being” are implicit, it DENNIS MURPHY is appropriate to outline at this juncture the” thrust of the rules of evidence. Basically, the rules of evidence in the system of law in the United States assert that: {A) Evidence not relevant to the legal issu before the court cannot be received. (B) Hearsay evidence cannot be received, ex: cept for numerous special cases in whicl such evidence is received . . . (©) Testimony in the form of opinions or con: clusions cannot be received, except from experts. (D) Secondary evidence as to the content or in- tent of writings cannot be received. : (©) Privileged communications cannot be re ceived : (F) Bvidence must be offered in accordance with. specified formal and procedural rules. (Loevinger, 1958) i Taking into account competency (reliability) and materiality (pertinency) as well, the rules of evidence, then, are “rules of exclusion,” which exist “to put various classes of evi- dence beyond the consideration of the fact- finding tribunal” (Loevinger, 1958). Taken as a whole, the rules of evidence traditionally have not been as internally con- sistent as the above schema indicates. Prior to the comprehensive rethinking and rework-. ing that led to the federal rules of evidence in the mid-1970s, the rules were a miscellany of sometimes conflicting prescriptions based on common sense, tradition, or policy, usa- ally containing some degree of anachronism. Still, it has always been maintained that the rules of evidence were essentially an organic whole, representing rational man in his quest to uncover truth.” With this contextual sketch completed, the remainder of the introduction outlines a five- pronged test for evidence. It should be noted here that the test is of general evidentiary ap- Plicability; specific application to hearsay problems will be made in the final section of the article, after the hearsay rule itself is examined. ‘The first part of the five-pronged test is so obvious that it is often overlooked, some- times to the detriment of a party. It concerns the question, What is the evidence? The an-‘wer is important because it clarifies the type form of the evidence’ and may thereby ‘determine the applicability vel non of an ex- {clusionary rule.* ‘The second query is, What is the evidence Jing offered to prove? In other words, what the object of proof, the issue? Discrimi- ‘ation among issues, as will be seen in the final section, is critical. ‘Third, and obviously linked closely to the second, is the question, Is that a material is- ie? Although materiality as a concept seems have been absorbed into an expanded no- jon of relevancy, it still is incumbent upon “the party who would offer evidence to be able “to show that the object issue thereof is per- inent, that it matters in the case. ‘The fourth of the five prongs constitutes the relevancy nexus: Is this evidence logi- cally probative of that issue? Rationality ‘compels that it must be logically probative or ¢ excluded. Relevancy is of particular im- _ portance, of course, in regard to circumstan- tial evidence, that is, evidence requiring the trier of fact to draw an inference. The fifth prong provides the hedge against irrationality that traditionally bore the label “fegal relevancy”: Does the probative value of the evidence outweigh its prejudicial ef fect? Emotions must not supplant reason if the truth is to be known. The five-pronged test for evidence consti- tutes the analytical apparatus which, in tan- dem with a three-way taxonomy of “apparent hearsay” evidence, will be applied to sim- plify analysis of hearsay problems in the third section. The next section, however, provides the necessary background concerning the hearsay rule, its history, application, ration- ale, and exceptions. THE HEARSAY RULE. ‘The life of the law, as Holmes observed, may very well have been experience, not logic, but interwoven with the law is the psycho-logic® inherent in language. Though the hearsay rule is of more recent origin, the grammatical construction “saying-heard” is essentially nontechnical Old English from the carly cleventh century, the form “heard say- Hearsay: The Least Understood Exclusionary Rule 267 ing” from the twelfth. In the sense of re- porting rather than personally knowing, *hear- saying” was recorded as early as 1340, and during the sixteenth and seventeenth centu- ries, the legal profession began to speak of “hearsay” (Mellinkoff, 1963). The hearsay rule as rule did not become firmly embedded in the law of England until the latter part of the seventeenth century, however—too late to save Sir Walter Raleigh, who was con- victed of high treason in 1603, principally on the basis of hearsay (Louisell, Kaplan, and Waltz, 1981). The language of the hearsay rule, like so much language in the law, is deceptively simple:® evidence is inadmissible at trial if it comprises an out-of-court assertion offered to prove its truth. An alternative description of hearsay offered by Wheaton (1969), who had previously noted that “none of the many at- tempts to define hearsay has produced a gen- erally accepted definition,” is that it is “a statement or other communicative conduct offered to prove the truth of the matter as- serted.” Another definition, from a highly re- garded treatise, McCormick’s Handbook of the Law of Evidence, makes explicit an im- plicit problem with the quality of the evidence: Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an as- sertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. One key to understanding hearsay is to identify the conceptual criteria for exclusion. ‘That is, Why is hearsay evidence inadmis- sible at trial? Morgan (1948) asked whether the rationale undergirding the hearsay rule is, not the proof-of-the-matter-asserted compo- nent, “but rather the presence of substantial risks of insincerity and faulty narration, memory and perception.” These will be ex- amined in the final section as part of one con- ceptual approach to understanding hearsay, but, as will be seen in the discussion of ¢ ceptions to the hearsay rule, the singular ¢ terion of evidentiary quality control em- braced by the rule is the srustworthiness of268 evidence: if an assertion is hearsay, its trust- worthiness is inherently suspect. ‘There are three basic reasons for this, ac- cording to Binder (1983): 1. A witmess should testify on oath or affir- mation. The solemnity thereof exerts a moral suasion on many witnesses to tell the truth, It exerts a more mundane suasion on all wit- nesses, because one who lies while testify- ing on oath or affirmation is subject to crim- inal prosecution for perjury. 2. A wimess should testify in the presence of the trier of fact. The appearance and the de- meanor of a witness are often more reveel- ing than his words... 3. A witness should be subject to contempor- a@neous cross-examination . . . No better way of exposing falsehood, error, or weakness in the testimony of a witness has yet been de- vised. The Supreme Court has declared that the “primary justification for the exclusion of hearsay is lack of opportunity for cross examination. Anderson v. U.S., 417 U.S. 211, 220 (1974),” In the iater discussion of exceptions to the hearsay rule it will be demonstrated that these requirements can, in some circumstances, be ‘overcome by other indicia of reliability. Referring back to the definitions, it can be seen that in form, hearsay can be oral or writ- ten and can be based upon assertive or com- municative conduct as well as words. Non- assertive words, such as words of greeting or warning, and nonassertive conduct, that is, conduct not intended as a substitute for as- sertive words, are excluded by such defini- tion from the realm of hearsay. In regard to the latter, this has not always been the case: however, evidence of nonassertive conduct from which an inference could be drawn was formerly excluded as hearsay if offered to prove the truth of the inference.* Additional complications stem from hear- say definitions. One example is termed “in- direct hearsay” (Falknor, 1956) or “hearsay by implication” (Binder, 1983:60). This is similar to the nonassertive conduct class of cases except that here assertions are involved by implication; consequently, “if a hearsay statement is excludable, then circumstantial DENNIS MURPHY evidence implying that the hearsay statemer was made is likewise excludable” (Binder, 1983:60).? A second complication is termed “multiple hearsay.” Although it would seem logical that if an assertion is inadmissible if removed one step from its out-of-court source, then it would surely be so if removed two steps; never- theless, exceptions to the hearsay rule could. permit admission of the “hearsay on hearsay” (Weinstein et al., 1983).'” Before examining - these numerous exceptions to the hearsay rule, however, it should be noted that a party hop- : ing to exclude evidence by wrongfully caus- ing the unavailability at trial of a witness” thereby (if so determined by the judge) waives objection to the introduction to otherwise in- * admissible hearsay evidence that the oppo- nent must use in lieu of the direct testimom of the witness (Binder, 1983:63). In the ad: versary system in the United States, moreover, simple failure of an attorney to - make timely objection to introduction of hearsay evidence by his or her opponent also_ constitutes waiver of the objection (Binder, 1983:64). : As indicated, in addition to those situations in which the hearsay rule becomes inoperable because of a waiver of objection, there are numerous situations in which the rule does not operate fo exclude evidence because of some exception.'! These exceptions are many, but are generally founded in alternative in- dicia of the reliability of, and perhaps in a compelling necessity for, the evidence.” Hearsay may, after all, be highly probative and therefore highly desirable from a rele- vancy standpoint. ‘The effect of these exceptions is to narrow significantly the scope of hearsay as an ex clusionary rule. Much relevant evidence that would otherwise be excluded as inadmissible hearsay can be and will be admitted if it can. be shown to come within an exception. The key to determining whether a given assertion _ offered to prove its truth can be admitted via an exception is to determine whether within the circumstances surrounding the making of the assertion sufficient indicia of reliability inhere to allow such an assertion to fit withinthe corresponding conceptual classification, that is, exception, based upon those indicia. ‘Thus, if an out-of-court assertion can reason- ably be categorized, for example, as an “ad- mission” or a “dying declaration,” then it will be admissible at trial. Though some excep- tions, such as common-law declaration against jnterest, often require that the original out-of- court declarant be unavailable at trial or re- {quire some other foundation to be laid before ‘evidence falling thereunder can be admitted, nonetheless, the evidence will be admitted. Categorization of facts and circumstances js a tricky business, of course, and in fact is ‘the central intellectual challenge in citing precedent cither to analogize or to distinguish cases under stare decisis. Still, forty fact- and - circumstance-based exceptions to the hearsay rule have been identified." It is beyond the ‘scope of this article to discuss the respective facts and circumstances upon which each is ‘based; it should be noted, however, that the common criterion is trustworthiness in spite of the hearsay character. Binder has enumerated the forty excep- tions: 1. Present sense impression; 2. Excited utterance (spontaneous exclama- tion); 3. Assertion of then-existing fact; 4, Assertion of then-existing physical or emo- tional feeling; 5. Assertion of memory ot belief conceming, a will; 6. Assertion for the purpose of medical di- Hearsay: The Least Understood Exclusionary Rule 18, 19. 20, 2 2, 23. 24. 25. 26. 27. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. Admit 269 Market report or similar commercial publication: Assertion in learned treatise; Reputation concerning pedigree; Reputation concerning a land boundary; Reputation concerning an event of general history; Reputation as to character; Criminal conviction offered to prove a fact essential to sustain conviction; Judgment offered to prove a matter of pedi- gree, general history, or boundaries, essen- tial to judgment. Former testimony; Dying declaration; ion of a party opponent;'* Assertion (declaration) against interest; Assertion of pedigree; Assertion as to private boundary; Prior inconsistent statement of witness; Prior consistent statement of witness; Prior statement of identification; Attestation of a subscribing witness; “Assertion by voter; Explanation by a defendant of possession of stolen property in a prosecution for theft; Certification of a small bill; Certification by a governmental official; Other assertion with circumstantial guar- antees of trustworthiness (“residual” ex- ception). (1983:83-84) Two other matters must be mentioned in regard to introduction of what would other- wise be inadmissible hearsay. In regard to the first Binder has noted that, agnosis or treatment; 7. Recorded recollection; 8. Entry in business recard; 9, Assertion of then-existing motive: 10. Entry in public record; Record of vital statistics; 12. Assertion of pedigree in record of a reli- gious organization; ‘Once hearsay is admitted in evidence, cither because of lack of an objection or because it falls within an exception to the hearsay rule, an adverse party may impeach declarant’s credibility as if declarant had testified in per- son in court. But declarant need not be con fronted with, or given opportunity to deny or explain, evidence of an inconsistent state~ 13. Assertion of pedigree in a family record; 14, Assertion in a marriage, baptismal, or sim- ilar certificate concerning performance of ceremony; 15. Record of a document affecting interest in property; 16. Assertion in a document affecting interest in property; 17. Assertion in an ancient document; ment or conduct, (1983:87) ‘The second matter relates to that “confron- tation.” The hearsay rule applies to both civil and criminal cases (Binder, 1983:68), but in the latter a further complication arises out of the Sixth Amendment of the federal Consti- tution; the defendant’s right of confrontation with witnesses against him.'* Simply stated,270 “cxception to the hearsay tule is no guarantee of compliance”!® with the confrontation clause (Binder, 1983:69). Like most liberties guaranteed by the Bill . of Rights, the right of confrontation is not ab- solute (Binder, 1983:70). Ohio v. Roberts, a 1980 Supreme Court case, held that should the government adduce hearsay evidence in its case against a criminal defendant, without bringing forward the out-of-court declarant as a witness subjected to adequate cross- examination regarding the assertion in ques- tion, it is violative of the confrontation clause unless: ‘The hearsay possesses adequate “indica of re- liability,” and either a, The declarant is unavailable despite the government’s good faith efforts to ob- tain his presence at trial, or b. The utility of confrontation at trial is re~ mote. (Binder, 1983:70) Hearsay, then, can be used as part of the prosecution’s case-in-chief"” but only if con- sistent with the policy undergirding the de- fendant’s right to confrontation.'* The next and final section presents two analytical ap- proaches for understanding the hearsay rule. UNDERSTANDING ‘THE HEARSAY RULE Earlier in this article Morgan (1948) was quoted as having identified four aspects of the trustworthiness criterion for excluding evi- dence under the hearsay rule; these were in- sincerity, faulty narration, memory, and per- ception. Tribe (1974) further developed this theme, producing a heuristic model that yielded insight into hearsay problems." The model specifically helps ascertain whether use of an act or utterance as evidence would re- quire the finder of fact to rely on the declar- ant’s credibility. In his survey of the area to be “triangulated,” Tribe (1974:958-59) pos- ited the following schema as the framework for developing Morgan’s points and ulti- mately for analyzing hearsay problems: DENNIS MURPHY 2B file car amen «ry Aaouuy / \ (trae m9 alata / enone / wwe) Zn gp Nt The process of “triangulating hearsay” ba- sically consists of “forging a reliable chain of inferences, from an act or utterance of a person not subject to contemporaneous in-court, cross-examination about that act or utterance, to an event that the act or utterance is sup- posed to reflect” (Tribe, 1974). It is neces: sary to remember that the event itself (C), which evidence of the action or utterance is being offered to prove, can appear in the schema both as a reality external to the de-._ clarant and as a logical conclusion or ultimate inference. Arrows point both from A to C and B to C. The problem, as always in the law of evidence, is the closeness of fit between these, and, again, it is necessary to note the metaphysical assumptions underlying the statement, . ‘Testimonial infirmity, ambiguity, or insin-- cerity would negate the AB inference, that is, the inference that the declarant actually be- lieved what he or she said. Even if the de-: clarant did believe it, the BC inference that the belief itself is true could be negated by testimonial infirmity, erroneous memory, oF faulty perception. Here the idea is that even though the declarant believed it, he or she was wrong. Thus, although AC indicates an 0s tensible reality, much as direct testimony on ‘the witness stand would, if the evidence is hearsay because the declarant is not on the witness stand, the route must be through B, with the attendant problems noted. Com- pounding this, of course, is the problem of these same testimonial infirmities plaguing the hearsay repeater who is testifying as 10 what he or she heard or saw. The crucial point, however, is that this person, the percipient witness, can be cross-examined. This model can be of considerable help in analyzing hearsay problems generally, as welljis in identifying the indicia of reliability of e exceptions to the hearsay rule in partic- ular. It is submitted, however, that an alter- native analytical framework is of greater util- yy in analyzing hearsay because it is based pon a framework of broader applicability to evidentiary questions. ‘The reader is directed to the five-pronged st for evidence presented in the first sec- jon. This test comprises the sequential ques- tions, with the a priori supposition (except in regard to hearsay issues) that the evidence is competent: . What is the evidence? , What is the evidence being offered to prove? (What is the issue?) . Is this issue material? Ts the evidence logically probative of this issue? Does the probative value of the evidence outweigh the prejudicial effect? "With only slight modification, this test can be tailored to analysis of apparent hearsay prob- lems, Before such modification, however, it is important to consider a three-way taxon- omy of apparent hearsay evidence: 1, Evidence inadmissible because it is hearsay; 2. Bvidence potentially admissible even though it is hearsay (applicability of a hearsay exception); 3, Bvidence potentially admissible that is not hearsay (nonhearsay, either because it is not assertive or because it is assertive but not offered to prove the truth of the assertion). The potentiality factor reflects the constant application of the evidentiary quality control devices of materiality, logical relevancy, and legal relevancy. If all these criteria are sat- isfied, then the simplified taxonomy consists of inadmissible hearsay, admissible hearsay (via an exception),” and nonhearsay.” The chart shows how the modified five-pronged test for evidence, in conjunction with the full three-way taxonomy of apparent hearsay evi- dence, provides a simple framework for anal- ysis of apparent hearsay problems (and other evidence problems): It may prove instructive to apply this framework for analysis to the apparent hear Hearsay: The Least Understood Exclusionary Rule 21 say problem posed at the outset of this arti- cle. Would quoting the sentence, “Hearsay is the least understood exclusionary rule,” be admissible evidence on the issue of whether it is the hearsay rule or the best evidence rule that is the least understood of all the rules that exclude evidence? In addressing the first question in the chart, it should be noted that the form of the evi- dence is clearly testimonial. Regarding the second question, the referent (the sentence quoted at the beginning of the article) is an utterance. It is, moreover, clearly an asser- tive utterance. If it is being offered to prove the truth of the assertion (it is), then it be- comes potentially admissible hearsay (PAH), that is, hearsay evidence which, provided it comes under an exception to the hearsay rule, and provided the issue to which it is offered is material, and provided that the evidence is relevant to (logically probative of ) that issue, and, finally, provided that the probative value of the evidence outweighs any prejudicial ef- fect it might generate, will be admissible. In this case, the potentially admissible hearsay (PAH) that resulted from affirming that the statement was offered to prove its own truth might have met all those provisos were it not for the next question, whether the evidence comes within an established hearsay rule ex- ception. The only exception that might ar- guably apply is one governing an assertion in a learned treatise. If neither expert testimony nor judicial notice establishes that this article is a learned treatise, then there is no appli- cable exception, and the statement becomes (because of the negative answer to the ques- tion about applicable exceptions) inadmissi- ble (formerly) potentially admissible hearsay Use of the chart in other problems of an ap- parent hearsay nature (if the utterance or con- duct is classified “nonhearsay,” then the problem is not really a hearsay problem, though it would at first blush appear to be) should prove similarly satisfactory. It is con- ceded that complications, such as the non- applicability of the federal rules hearsay def- inition to some circumstances traditionally dealt with via an established exception and the issue of whether some gray areas (e.g., state of mind, intention, nonassertive conduct)DENNIS MURPHY 272 ‘euxog soCem sexys eqs go Aue a peasee og ste Pinos soueroaan o JoNpUOD URYA ZOyIO sIHOTOZONy SaTaMUTTIY - petensey uOTISENd — arqeortddeuy wopasend - 10 Aeszvoquon oTq3eeTupy ATTerqUSsi04 — NVa Anszven o1qreeTupy ATTeTaUeTOd ~ Ava sowoprag eTqTeeTwpY ArTeraueioa - awe (pex9939 Aqasdorg 52) oErsrnay waar (a) me xar] RPE] 7a wee Tat] Wed Tat mea RE 30 Fo of (oxi a TEST \ B Lo on ax ver etaresrureg (eeq3rzm zo Tose) eouesezan uy SoFaGN THe RreqTamoog TeRIOTaSSy TepOTpNc = (peaworaueWane) —-poaFoTaeyaMe pan a coueprag eTaTssrmpect ~ AgT souprag sTareetupy ~ aay TUNGIST ay 2909559 fosx Teyoyontead vay ySFeuano souaptaa 919 70 onTea oaTaeqord ey seca gensey eq? 30 eatzeqoad Aqqwoybor sovepyae 2a} er aqerseqen anssy ex st gona Keszeey eq3 09 voradsoxe poyettgeace ue yURFA M109 Bo¥EPTAD |y3 Go0K eposaesse (Aue gx) rox 9y2 Jo Yana er eaczd o2 pezagzo Buyoq Soupyas 9a er goaraaesse coueprae x3 Sr paouapras ya go quoezox ova er 32uM geouepyas oua Jo uXOS oy ST TeUH“gre better seen as exceptions to the hearsay tule or as nonhearsay, may at times make the approach seem simplistic. Thoughtful appli- cation of the chart, with particular attention ‘19 the key query of whether the evidence of the assertion is being offered to prove the truth “thereof, will nonetheless yield consistently ‘accurate analysis. Hearsay has traditionally been, for a vati- ety of reasons, the least understood exclu- sionary rule. Logical application has proven roblematic at best. It is submitted that the analytical apparatus introduced in this article ‘could be a useful tool for logical application of, and thus understanding, the hearsay rule NOTES 1. See also Frank, What Courts Do In Fact, Illinois Law Review 26 (1932):645. 2. It should be noted that, whatever their shortcom- “ings, the rules of evidence are a significant improve- ‘nent, at least with respect to the criterion of rationality, “over trial by ordeal, trial by battle, and even ttial by ‘wager of Iaw (compurgation). Also noteworthy is the ‘context in which the rules of evidence operate, namely, the dynamics of the trial (criminal or civil) in particular and the adversazial system in gencral. In this regard the ‘prevailing wisdom in common-law countries always has been that the give-and-take of the adversarial system is the surest path to truth. Some, however, would dissent: “our adversarial system rates truth too low among the values that institutions of justice are meant to serve” (Frankel, The Search for Truth—An Umpireal View, “University of Pennsylvania Lav Review 123 (1975):1031. In a more recent questioning of the adversary system, Warren Burger, in an address to the American Bar As- sociation (12 February 1984, Las Vegas, Nevada), called for a study of its consequences. 3. This clarified is whether the evidence is direct orcircumstantial, real, documentary, testimonial, or ju- dicially noticed. Except for hearsay issues, the prof- fered evidence is assumed to be competent, 4, Illustrative of this point is the misleadingly named (at least insofar as its implied breadth of applicability is concerned) “best evidence rule,” which applies only to documentary evidence. 5, Sce The Language of the Law—A Syinposiam, Western Reserve Law Review 9 (1958):115, Of course, the historical development of language is by definition experiential; only the most sanguine policymaker would aver that history evinces strict logic. 6. Compare the language of the Fifth Amendment double jeopardy provision: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Even if the term “jeopardy” is clear, what is the “same offense”? The law surrounding inter- pretation and application of the provision is complex and Heersay: The Least Understood Exelusionary Rule 273 ‘often in apparent conflict with the plain meaning of the phrase, Beyond this language problem for hearsay is also its operation vis-a-vis the function of the jury. See Note, ‘al Foundation of the Hearsay Rule, Har- vard Law Review 93(1980):1786. 7. In rogard to the Burger court’s Anderson ration- ale for cross-examination, the Chief Justice’s 1984 speech to the American Bar Association cited in note 2 may signal a coming shift in the court's viewpoint. 8, See Wright v. Doe d. Tatham, 7 Ad. & Bl. 313 (Exchequer Chamber, 1837): “Bvidenee of the conduct of 9 deceased captain on a question of seaworthiness, ‘who, after examining every part of the vessel, embarked ‘on it with his family” was illustrative dictum of inad- missible nonassertive conduct evidence. 9, An example cited in J. Weinstein, J. Mansfield, N. Abrams, and M. Berger, Cases and Materials on Evidence, Th ed. (1983):549 is an insanity defense murder case. After four psychiatrists examined the ac- cused, one testified that all four agreed that the accused ‘was sane. Such testimony implies that the other three psychiatrists had asserted, in some manner, that the ac- cused was sane, and, therefore, is inadmissible hearsay 10, An example, based on exceptions to the hearsay rule discussed later would be when X testifies in court that he heard Y spontaneously exclaim the words he had just heard Z mutter as his dying declaration. X's testi- mony would be “hearsay on hearsay.” but admissible because euch hearsay declaration would be indepen- dently admissible via an exception to the rule (sponta- neous exclamation exception and dying declaration exception). 11. Tt should be noted that these exceptions allow hearsay evidence to be admitted at triat, that is, in a court trial per se. Hearsay that would be’ excludable at trial is nonetheless admitted in a plethora of other set- tings: probable cause “hearings” preliminary to issuance of arrest or search warrants; pretrial suppression hear- ings; extradition hearings; at sentencing; as substantial evidence supporting administrative adjudication; grand juries; in deciding a motion for summary judgment (Binder, 1983:58-59) 12. Ifthe topic were washed with Holmes’s “cynical acid,” perhaps other explanations for the existence and arguable predominance or exceptions to the rule might arise: “The courts are able to fimetion at all only by ignoring their rules in this respect a good deal of the time.” That is, “The sheer necessity of getting the work of the courts done required the creation of an increasing number of exceptions to the rule of exclusion of hearsay ”(Laocvinger 1958). 13, ‘The federat rules of evidence revognize only thiry- six of the forty but allow evidence falling under four of the thirty-six to be admitted by categorizing these as outside the definition of hearsay (witness's prior incon- sistent statement, witness’s prior consistent statement, prior statement of identification of a person, and ad- mission by a party opponent) rather than as exceptions per se. The final four exceptions are recognized by var- fous state courts and may be admissible in federal courts under the fesidual exception Binder (1983:86). Note, however, the possible arbitrariness of categorization of evidence into inadmissible hearsay and admissible-274 Via-an-exception hearsay: “we confuse and mislead our- selves by speaking and thinking of these things in terms of categorical differences rather than differences of de~ ree on a continuum” (Loevinger, 1958). 14, This exception embraces confessions and adop- tive admissions, which include “admissions by silence” or “tacit admissions,” as, for example, when one is ac~ cused of something that the law presumes a reasonable person would expressly deny but the accused says noth- ing. This is a controversial exception to the hearsay rale because many people in this culture would remain silent $0 as not to “dignity the accusation with a denial”; these people are cerlainly not adopting the accusation! See Gamble, The Tacit Admission Rule: Unreliable and Un- consfitutional—A Doctrine Ripe for Abandonment, Georgia Law Review 14(1979):27. Te also includes vi- carious admissions—assertions by agent, coconspirator or predecessor in interest (Binder 1983:316) 15. See Barber v. Page (1968): 390 U.S. 719, de- fining the right as including both the opportunity to cross- ‘examine witnesses and opportunity for the jury to weigh the demeanor of the witness. The right is applicable to the states through incorporation into the Fourteenth ‘Amendment’s de process clause in Pointer v. Texas (1965): 380 U.S. 400, but all states except for Idaho have similar confrontation rights pursuant to state con- stitution or statute (Binder, 1985:69), 16. This is the upshot of California v. Green (1970): 399 U.S. 149, the seminal case in the area. 17. As noted earlier, hearsay is permissible in a va- riety of pretrial contexts (See note 1.) Indeed, hearsay exclusion may be less rigorous in bench trials (See Davis, Hearsay in Nonjury Cases, Harvard Law Review 83 (1970]:1362.) 18, It should be noted that although the constitutional right to confront witnesses extends proteetion only to the defendant, the hearsay rule itself applies, subject to constitutional limitations, including the right of the de- fendant to have admitted certain declarations agaiust penal interest of third parties (Chambers v. Miss. (1973): 410 U.S. 284), to both defense and prosecution, See P. Johnson, The Elements of Criminal Due Process, 1975, 268. 19. This analytical apparatus is cited in two leading ‘easehooks on the law of evidence, Louisell, et al., Cases and Materials on Evidence, 1981 and Weinstein, et al, Cases and Materials on Bvidence, 1983. 20, But again, Locvinger (1958) noted that there is patent “absurdity” in “forcing the infinite variety of the Kinds of evidence into the Proctustean beds* of inad- missible and admissible hearsay. 21. Nonhearsay is important because it often appears to be hearsay, but is not. Nonassertive words or conduct can look like hearsay but are not, by virtue of their non- assertive nature, Assertive words (utterances) or con= duct are hearsay onty if offered to prove the truth of the assertion, Examples of nonhearsay include statements with direct legal significance, also called “verbal acts” (words in a contract, will, or defamation), and state- ments taken to indicate the declarant's mental health or implying bis or her state of mind (e.g., knowledge, inx tent, motive). This can be quite tricky, but the key re- DENNIS MURPHY mains whether the assertion is being offered! to prove its truth or for some other—any offier—reason. If the lntter, then the evidence is nonhearsay and, although of. course governed by the other evidentiary quality control devices, cannot be excluded by operation of the hearsay rule (Binder 1983). If there could be confusion as to whether a jury will misapply some nonhearsay toward the matter asserted, instructions by the judge are proper to restrict its scope, 22. Several additional explanatory matters should be. noted. Most basically, except for hearsay issues, com. petency in general (¢.g.., that testimonial evidence is of- fered by competent witnesses and that documentary evi« dence comports with the best evidence rule) is assumed in order to simplify the analysis. Proper procedures must be followed in order to have evidence admitted. This includes the laying of 1 proper foundation, often to it clude authentication of documents and corresponding: “authentication” of real evidence (¢.2., testimony on its identity and chain of custody). Proper procedure also includes limitation of judicial notice to certain matters, though even those matters must still embrace the e dentiary quality control devices. Real evidence (€.2.. plaster casts of footprints offered to prove flight and sought to be admitted via the notion of “admission by. flight”) can give rise to apparent hearsay problems, but. usually such problems involve the testimonial or doc- mentary forms. All three forms, as indicated by the asterisk and footnote, could provide evidence with a1e- ferent other than an utterance ot conduct, but lines were not drawn in order to avoid confusion and to emphasize the hearsay problem here, Finally, it should be noted that the final chart question, dealing with what tcadi- tionally has been termed “legal relevancy,” may not be as dispositive in the abstract as materiality and logical relevancy because of the greater judicial discretion in volved. Even the federal males of evidence, which seem to have expanded and elevated the importance of this basis for potential exclusion, speak in permissive terms: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the dan- gor of unfair prejudice, confusion of the issues, or mis- Teading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence” (Rule 403, emphasis added). REFERENCES Binder, D. (1983). Hearsay handbook, 2d ed. Colorado Springs, CO: Shepard’s/MoGraw-Hill, Cleary, E. (1972), McCormick's handbook of the taw of evidence, 2d ed. St. Paul, MN: West Pub. Co. Davis, K. (1970). Hearsay in nonjury cases. Harv Law Rev 83: 1362-68. Falknor, J. (1956). Indirect hearsay. Tulane Law R 31:3- B Frank, J. (1932). What courts do in fact. 1 Law Rev 26:645~708, Frankel, M. (1975). ‘The search for truth—An umpireal view. Univ Penn Law Rev 123:1031-59. Gamble, C. (1979). The tacit admission rule: Unreliable ‘and unconstitutional—a doctrine ripe for abandon- ment, GA Law R 14:27—44. Johnson, P, (1975). The elements of criminal duce pro- cess, St. Paul: West Pub. Co.“© [asowell, H., and McDougal, M. (1971). Criteria for a theory about law. So Calif L Rev 44:362-98 © Loevinger. L. (1958). Facts, evidence and legal proof. | West Reserve Law Rev 9:154-69. ~Louisell, D.; Kaplan, J.; and Waltz, J. (1981). Cases “and materials on evidence, 4th ed. Mineola, NY: Foundation Press " Mellinkoff, D. (1963). The language of the law. Bos- ton: Little, Brown, Morgan, B. (1948). Hearsay dangers and the applica tion of the hearsay concept. Har Law Rev 62:177 219, Hearsay: The Least Understood Exclusionary Rule 275 (1980). The theoretical foundation of the hear- say rule. Hary Law Rev 93:1786-1815. Probert, W, (1958). Language of the law: A sympo- sium, West Reserve Law Rev 9:115~218. ‘Tribe, L. (1974). ‘Teiangulating hearsay. Harv Law Rev 37:956-74. Weinstein, J.; Mansfield, J.; Abrams, N.; and Berger, ™M., 7th ed. (1983). Cases and materials on evidence. Mineola. NY: Foundation Press. ‘Wheaton, C. (1959). What is hearsay? JA Law Rev 46: 207-49.