The Hearsay Rule.

The Hearsay Rule 

G. Michael Fenner Carolina Academic Press www.cap-press.com 608 pp., $60

Once you have practiced law for a while, you find that hearsay is a little like obscenity--you know it when you see it. The definition is fairly straightforward; hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. However, defining specifically what makes the proposed piece of evidence inadmissible--or admissible--is sometimes difficult. Unfortunately, some courts won't accept the argument that a statement just is inadmissible hearsay.

Luckily, Professor G. Michael Fenner's book provides a clear, easy-to-follow discussion of the hearsay rule. This text should he used in every law school evidence classroom. Fenner begins by explaining the rule, then discusses the various aspects of hearsay in successive chapters. In each chapter, he includes the text of the rule, the foundational elements, a brief discussion of the need versus the reliability of the evidence, and a practical "use" note that includes case examples. His thesis is that for admissibility, the evidence must either be very much needed or have a high degree of reliability. The uniformity of his analysis helps the reader develop a construct to evaluate hearsay--moving the student closer to knowing it when he or she sees it.

For instance, in the short section on Rule 803 (1), present sense impression, Fenner sets forth the rule and its foundational elements: "(1) The out-of-court statement must have been made while the declarant was perceiving an event or a condition, or immediately thereafter. (2) The out-of-court statement must describe or explain the thing perceived." He then analyzes the rule in terms of need and reliability. "Categorical need for the out-of-court statements covered by [this rule] is almost nonexistent," he writes. However, the reliability of the evidence is high: "The statement is reliable because it is unreasoned, unstudied, and unpremeditated. It is reflexive."

As an example, Fenner cites a telephone conversation described in the book Parting the Waters: America in the King Years, 1954-63 by Taylor Branch. One of the speakers is watching the Birmingham Fire Department break up a demonstration using fire hoses on the demonstrators: "Gaston said to Vann: 'They've turned the fire hoses on a little black girl. And they're rolling that girl down the middle of the street.'" Fenner explains that Vann would have been able to testify to Gaston's words under Rule 803(1).

The Hearsay Rule concludes with a discussion of ways around the hearsay rule, including having an expert witness testify to what would otherwise be inadmissible hearsay.

As an example, Fenner cites In re Young, in which the state sidestepped the rule that would have barred the only evidence--psychological reports and criminal histories--that the two defendants had engaged in sexually violent behavior in the past. The state's experts reviewed these documents, testified that "these are the types of materials reasonably relied on to diagnose future dangerousness of sex offenders," and were then able to testify to the reports' contents.

Perhaps the only drawback to this book from a practitioner's standpoint is the index. It provides less detailed information than the table of contents, and thus is difficult to use to quickly answer a specific question. However, once you become familiar with the book, the table of contents can guide you to your answer.

This book would be a great addition to a new lawyer's collection, and it should be used widely in law schools since it so clearly sets forth the hearsay rule in its various permutations. More experienced lawyers who believe they know it when they see it will benefit from this helpful refresher.

PAMELA K. SUTHERLAND is the legal director for the ACLU of Arizona.