Chances are a bar examinee will be asked a question dealing with or related to the hearsay rule. The hearsay rule is an incredibly complex legal rule. I do not expect a bar examinee to be tested on the nuances of the rule, but an examiner would be likely to test a bar examinee’s knowledge of its fundamental principles. This blog will give some bar exam hacks which will hopefully help a bar examinee tackle potential hearsay issues.
Definition of Hearsay
Hearsay is defined as an out-of-court statement offered to prove the truth of the fact asserted therein. There are two things a bar examinee should remember about hearsay. First is that it is an out-of-court statement. The out-of-court statement is made by a declarant or declarants. Second is that the statement is offered to prove the truth of the fact asserted therein (TOFA).
Out-of-Court Statement
In spotting a probable hearsay issue, a bar examinee should look out for the declarant. The declarant should not be confused with the witness. The witness is the one testifying in court while the declarant is not. The witness is either reporting an oral statement or introducing a writing or document embodying the statement (e.g., a letter or affidavit). There is no hearsay if there is no declarant.
Illustration. In a torts case, plaintiff’s witness Wanda testifies that he heard Pedro say that the defendant’s car ran the red light. Wanda is the witness while Pedro is the declarant. Pedro’s statement is offered to prove that the defendant’s car ran the red light.
Technically, it is Pedro’s statement, not Wanda’s testimony, which is hearsay. However, it is acceptable to also refer to Wanda’s testimony as hearsay.
Independently Relevant Statement
An independently relevant statement (IRS) is offered not to prove TOFA but to prove something else other than TOFA. A rule-of-thumb to determine an IRS is to check if it has probative value even if untrue.
Illustration. In a probate of a will, an oppositor will testify that he heard the testator say that he (testator) is the King of Mars. What is sought to be proved is not the truth of the statement but the testator’s mental condition, that is, he was not of a sound and disposing mind. The statement has probative value even if false. An IRS is not barred by the hearsay rule.
Note that an IRS is not an exception to the hearsay rule but is rather not covered by the hearsay rule. The reason is that an IRS is not hearsay not being offered to prove TOFA.
Hearsay is Barred by the Hearsay Rule Unless Excepted Therefrom
Under the hearsay rule, hearsay is inadmissible unless excepted from the rule. One should not jump into the conclusion that hearsay is inadmissible but should check if it falls within any of the hearsay exceptions. If it does, it is not barred by the hearsay rule and is admissible.
The hearsay exceptions most often touched in the bar are dying declarations and part of the res gestae (excited utterance). A bar reviewee should pay special attention to these exceptions but without of course ignoring the others.
Two Groups of Hearsay Exceptions
A bar reviewee should also be familiar with those statements which are treated as exceptions whether or not the declarant is unavailable to testify and those statements which would be considered as exceptions only if the declarant is unavailable to testify. Examples of the first group are business records and official records, while examples of the second are declarations against interest and former testimony or deposition.
In the 2023 Remedial Law Bar, there was a question on whether a birth certificate was admissible in evidence as a declaration about pedigree. A perceptive examinee would have noted that there was no showing in the fact-setting of the question that the declarant was unavailable to testify. He or she would have thus answered that the birth certificate is not admissible as declarations about pedigree.
Avoid the IRS Cop-Out
Many examinees take the easy way out in a problem involving hearsay by repackaging hearsay as an IRS through the simple expedient of stating that the statement is offered “to prove the fact that it was made.” This should not be done. If a statement has no probative value unless it is true, one cannot repurpose it as an IRS by just saying that it was offered to prove the fact that it was made. A wolf in sheep’s clothing is still a wolf.
For example, in the previous illustration on Pedro’s statement that defendant’s car ran the red light, the proponent cannot get the statement in by simply stating that it was offered not to prove its truth but simply the fact that it was made. This is a meretricious argument. The statement would not have any probative value if it were untrue.
Tackle only the issue posed
Hearsay questions could involve a plurality of issues. However, unless an issue is specifically posed in the problem, the examinee should refrain from tackling that issue. For example, in the 2023 bar question, the birth certificate could also touch upon the official records, admission, or declaration against interest exceptions. Nevertheless, since these issues were not posed by the problem, the examinee should avoid discussing them. Doing so will not gain any additional points but would likely merit deductions.
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