The Hearsay Rule.The Hearsay Rule hearsay rule n. the basic rule that testimony or documents which quote persons not in court are not admissible. Because the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanor and credibility
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 hearsay: see evidence. 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 That which, according to established legal principles, cannot be received into evidence at a trial for consideration by the jury or judge in reaching a determination of the action. 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 ad·mis·si·ble
1. That can be accepted; allowable: admissible evidence.
2. Worthy of admission.
ad·mis , 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 declarant n. the person making a statement, usually written and signed by that person, under "penalty of perjury" pursuant to the laws of the state in which the statement, called a declaration, is made. 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 non·ex·is·tence
1. The condition of not existing.
2. Something that does not exist.
non ," he writes. However, the reliability of the evidence is high: "The statement is reliable because it is unreasoned un·rea·soned
Not based on or guided by reason; unreasonable: unreasoned prejudices. , unstudied, and unpremeditated. It is reflexive (theory) reflexive - A relation R is reflexive if, for all x, x R x.
Equivalence relations, pre-orders, partial orders and total orders are all 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 The Birmingham Fire was a professional American football team based in Birmingham, Alabama that played in the World League of American Football in 1991 and 1992. The team played at Legion Field, and it made the playoffs in both seasons. 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 sex offender n. generic term for all persons convicted of crimes involving sex, including rape, molestation, sexual harassment and pornography production or distribution. ," 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 ACLU: see American Civil Liberties Union. of Arizona.