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GPSolo Magazine

GPSolo May/June 2024: The Changing Face of Evidence

The Evolution of the Hearsay Rule

Philip J Maenza


  • The hearsay rule prevents any testimonial evidence that is based on what others have said and is therefore dependent on the credibility of someone other than the witness before the court.
  • Exceptions to the hearsay rule include statements against interests, the tender years exception, former testimony, dying declarations, personal/family history, and deceased declarants.
  • Remember that the judge presiding over the case makes the ultimate determination on the admissibility of hearsay evidence.
The Evolution of the Hearsay Rule
Hans Neleman via Getty Images

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The hearsay rule is a well-known principle of law that prevents any testimonial evidence that is based on what others have said and therefore dependent on the credibility of someone other than the witness before the court. Such evidence is generally inadmissible under the rules of evidence. The underlying theory is that the U.S. Constitution guarantees the right of confrontation; further, because out-of-court statements are not made under oath and are not subject to cross-examination, their reliability is suspect.

When you really think about it, however, it is abundantly clear that people spew hearsay statements all the time. For example, when you were a child, your parents told you your name and address. Isn’t that hearsay? Someone else told you what your name is. This, of course, can be verified by a birth certificate or other such document. The credibility of the information, however, seems established by common sense and accepted practices. How about when your neighbor tells you the recycling day is tomorrow? What about all the statements presented on the Internet? We’ve all seen pharmaceutical ads on TV that include a variety of hearsay references to get you to buy medicine. There are myriad instances wherein we experience hearsay information regularly.

Application of the Hearsay Doctrine

The hearsay doctrine is based on doubt about the reliability of a type of evidence. There is a significant fear about the reliability of out-of-court statements as a form of evidence in a case. The common law assumes that any such evidence is only reliable if the declarant testifies under oath subject to cross-examination. For example, suppose a witness testifies that an out-of-court declarant told him that a defendant ran the red light. Clearly, the proponent must be required to produce such witness and cannot simply proffer hearsay evidence.

This can be a challenging scenario. For example, in a drug trial, the state’s witness may be an undercover agent who is asked to testify as to what the defendant told her. The proffered testimony is that the agent was instructed by the defendant to retrieve several bags of heroin from the defendant’s car for a drug sale. Such a scenario, while hearsay, clearly presents an indication of reliability. Nevertheless, such a statement is always subject to the legal interpretation of the judge. This testimony is imperative to the state’s proofs. The best evidence would be a recording of the statement, but the identity of the speaker must be established because the core of the statement is hearsay.

Another scenario involving hearsay is when there is no verbal testimony whatsoever, but the absent declarant points to the defendant in a police lineup. In this regard, a police officer cannot testify to the fact that the “pointer” who did not testify pointed out the defendant in a police lineup because this assertive act is a substitute for speech. It is subject to a hearsay objection but surely should be considered a reliable and credible act. After all, the officer is not testifying as to what the witness said but only what he observed. Much like a photograph, it speaks for itself.

Typically, expert medical testimony is hearsay; however, the courts have accepted such testimony provided the expert’s opinion or theory is generally accepted within the scientific community.

A motion in limine may be employed to challenge hearsay evidence. In a dental malpractice case, the defendant’s motion in limine to exclude threatening phone calls allegedly made by the defendant dentist based on hearsay was denied. In my home state of New Jersey, for example, such hearsay statements would constitute admissions under New Jersey Rule of Evidence 803(b)(1) or verbal acts that are exceptions to hearsay rules. Hopefully, the proponent has a recording to underscore the phone calls.

Exceptions to the hearsay rule include:

  1. statements against interest (R. 803(c)(25));
  2. tender years exception (R. 803(c)(27)); and
  3. former testimony, dying declarations, personal/family history, and deceased declarants (R. 804).

The statements made by a deceased declarant in a civil case can be deemed trustworthy under Rule 804(b)(6). The elements required for the statement to be deemed trustworthy include (1) the death of the declarant, (2) good faith, (3) personal knowledge, and (4) “probability” under the circumstances that the statement is trustworthy. This is quite obviously a seriously questionable exception due to self-interest factors.

Rule 808 provides that expert opinion included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial court finds that one or more of the following factors tend to establish the statement’s trustworthiness:

  1. the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant;
  2. whether litigation was contemplated by the declarant;
  3. the complexity of the subject matter; and
  4. the likelihood of accuracy of the opinion.

Typically, the admissibility hinges on the answer to the following question: Is the document an objective record of routine facts, data, or observations, or is the document a subjective evaluation of facts and data gathered?

Any application based on a hearsay objection should be the subject of a 104 hearing to determine admissibility. The bottom line is that the court will determine such admissibility to preserve the integrity of the judicial system.

Hearsay and Artificial Intelligence

As generative artificial intelligence (Gen AI) has gripped the rest of the world, the nation’s courts spent much of last year seeking to find a place for this rapidly advancing technology. The courts at this stage are more philosophical than practical, and the discussion among professionals surrounds whether there is enough knowledge about Gen AI to decide how it can be used in courts or whether it should be used at all. U.S. Supreme Court Chief Justice John Roberts even addressed the presence of AI in the legal field, noting that while he didn’t see AI taking over the role of judges, he did see it significantly impacting the legal community. At this point, there is clearly some uncertainty about usage, and this attitude is coming from the top down. Overall, court professionals and judges are enjoying broader engagement with technological solutions, especially around such critical areas as evidence collection and storage, as digital storage and certain case-material sharing and management tools are seeing more acceptance across the board. While there is no consensus yet on Gen AI, it will obviously play a part in the courts’ future. In addition to keeping an eye on the evolution of Gen AI, it will be important to keep an eye on the evolution of other technologies that increase efficiency and, ultimately, access to justice for all citizens.

The strongest concerns relate to the accuracy and quality of data sources and how GenAI lacks the human judgment, reasoning, and emotion that is critically inherent to the legal profession. Thus, if a video is produced at trial, it will be extremely difficult if even possible at all to determine if it is credible or an AI-generated document. The future of the legal system awaits; however, the hearsay rule does control, and the judge presiding over the case makes the legal determination on admissibility.