Sometimes it seems that there is no more pesky, confusing issue in the world of evidence than hearsay. The definition of hearsay is fairly straightforward, but there are so many exceptions and exclusions that they start to subsume that definition fairly quickly. And let’s face it—hearsay evidence often is really good evidence, and it is extremely frustrating to try to introduce your most smoky gun, only to have your opponent shout, “Objection—hearsay!” Knowledge of the hearsay rules goes a long way toward mitigating that frustration.
So what is hearsay? Federal Rule of Evidence 801 tells us. Hearsay is an out-of-court statement that is being offered to prove the truth of the thing the statement asserts. That’s concise, but there are a lot of factors to consider within that definition. The first component: “out of court.” That component, at least, is just what it sounds like. If the statement was made outside the courtroom—anywhere but in front of a judge under oath—it can constitute hearsay. Conversations in the hallway before court can constitute hearsay. Telephone conversations can constitute hearsay. Letters can constitute hearsay.
The second component: “statement.” The rule explicitly provides that a “statement” includes oral, written, and nonverbal assertions or expressions. Basically, any way that you can think of for a human to express a thought can constitute hearsay. A gesture can constitute hearsay. A legal document—a contract or a mortgage or a loan application—can constitute hearsay.
The third component: “admitted for the truth of the matter asserted.” This one can be tricky. It requires one to analyze the actual content of the statement and figure out whether the proponent is trying to have it admitted to prove that content, or for some other reason. Let’s take an example.
A witness testifies that the reason she did not appear for her meeting of creditors was that she got lost on the way to the courthouse. During her testimony, she tells the judge that after driving around for a half hour, she stopped at a gas station and asked the guy behind the counter for the location of the courthouse. She begins to testify that the guy told her that he thought it was somewhere around the intersection of Main and State. The trustee (a zealous sort) shouts, “Objection, Your Honor—hearsay!” The gas station employee’s statement was made out of court, and it was a statement. The question, however, is whether the debtor is trying to get the evidence in to prove “the truth of the matter asserted.” What’s the “matter asserted”? The gas station employee “asserted” that he thought the courthouse was somewhere around the intersection of Main and State. Is the debtor trying to prove that the courthouse is in the area of Main and State? No. Is the debtor trying to prove that a gas station attendant thought the courthouse was in the area of Main and State? No. She’s trying to prove that the reason she didn’t show up for her meeting of creditors was because she was lost. Thus, it doesn’t appear that she is trying to get this statement admitted for the truth of the matter asserted. Consequently, it isn’t hearsay.
If the debtor’s attorney is on the ball, that’s how he’ll respond—“Judge, we’re not offering this statement for the truth of the matter asserted, so it’s not hearsay.” The debtor’s attorney needs to be aware, however, that even though the judge should overrule the objection on hearsay grounds, there’s still a relevance issue. The judge, or opposing counsel, may well follow up by inquiring about why, if the debtor is not offering the statement for the truth of the matter it asserts, the debtor is offering the statement at all. Counsel needs to be prepared to respond. Maybe the response is, “Judge, it provides circumstantial evidence that the debtor was, in fact, lost.” Or maybe the response is, “Judge, we’re offering it to show that this detour for what turned out to be erroneous directions made her so late that the trustee had closed up shop by the time she did finally arrive at the courthouse.” The response may even be, “My client just wanted you to know, Judge—I can ask her to move on.”
Contrast that scenario with this one: During her testimony, the debtor’s attorney calls the debtor’s sister. The sister starts to testify that late in the day of the meeting of creditors, she received a phone call from the debtor. The debtor was crying, the sister testifies, and stated that, “I missed that hearing I was supposed to have at the courthouse, and now I think they’re going to throw out my bankruptcy! I didn’t mean to miss it. But I never go downtown usually, and I got completely lost!” Opposing counsel objects on hearsay grounds.
Again, the sister is testifying to an out-of-court statement. Is the debtor seeking to admit the sister’s testimony for the truth of the matter asserted? Yes. The debtor is trying to prove that she missed the meeting because she was lost. She wants to introduce a statement she made, out of court, to her sister, saying that she was lost. Clearly, that is a statement offered for the truth of the matter asserted, and it is hearsay. The judge should not admit it unless it fits within one of the many exceptions to hearsay rule. (More on exceptions in a later column.)
So we’ve established that any out-of-court statement—oral, written, or nonverbal—can constitute hearsay unless it is not being offered for the truth of the matter it asserts. There is one more form of out-of-court statement that does not constitute hearsay, even if the proponent is offering it for the truth of the matter it asserts. This is the “admission by a party opponent.” The source of this rule is again Rule 801. As an initial matter, the fact that we call it an “admission” by a party opponent often causes confusion. We think of “admissions” as confessional—we “admit” things we would rather not admit, because they reflect badly on us or cause negative consequences. Because we think of the word “admissions” in that sense, lawyers often confuse an “admission” of a party opponent with the “admissions against interest” exception to the hearsay rule.
In the Rule 801 sense, an “admission” of a party opponent is not confessional. The party opponent doesn’t have to be “admitting” anything bad or inculpatory or prejudicial against himself or herself. In this context, the word “admission” simply is another word for a statement. An “admission of a party opponent” is a statement offered into evidence against the party who made that statement, by that party’s opponent. There’s a bit more to it than that, of course—the statement may be made by the party or by a representative or agent of the party, if the representative or agent was authorized by the party to make the statement. And the party must have demonstrated that he or she believed the statement. But, generally, if the other side is seeking to admit the declarant’s out-of-court statement against the declarant, it isn’t hearsay. In this analysis, it’s all about who’s doing the offering.
We just determined above that if the debtor tries to put on her sister to testify to her tearful statement that she missed the meeting because she got lost, it is hearsay. While it’s hard to imagine why, let’s nonetheless imagine that the trustee wants to put on the sister to testify to this statement. If the trustee—who is, in this scenario, the debtor’s opposing party—wants to put in the debtor’s out-of-court statement to her sister, it is not hearsay. It is the admission of a party opponent.
It is critical to understand this distinction both offensively (so you know when you can use what would otherwise be a hearsay statement against an opponent) and defensively (so that you know when a hearsay objection won’t help you). Many judges have experienced a situation in which one party tries to offer a hearsay statement, the opposing party objects, and the judge sustains the objection. The opposing party then seeks to offer the very same statement (for different reasons), and the declaring party thinks, “How silly—what’s sauce for the goose is sauce for the gander!” and makes the hearsay objection. The judge then responds, “Overruled—now it’s the admission of a party opponent.”
So, in this initial foray into the land of hearsay, there two lessons to take away. First, an out-of-court statement is not hearsay if it is not being offered for the truth of the matter asserted. Second, even if the out-of-court statement is being offered for the truth of the matter asserted, it is not hearsay if it is being offered against the declarant by the declarant’s party opponent.