What is Hearsay? You are a Liar!

Many people think that hearsay is just gossip. Well they are not mutually exclusive and they are not mutually inclusive. At the core of both is the notion of “he said, she said” but they are not the same. Hearsay has no negative connotation. It is neutral where gossip is inherently distrusted. Hearsay can and should be disregarded sometimes for its’ accuracy and gossip is presumed to be untrustworthy.

Common Webster’s type definition is blunt and to the point on hearsay: something heard from another person : something that you have been told. Well that is not even close to hearsay in a legal sense. Although it is very similar in a general sense.

Try this on for size (this is real legal language that must be followed by lawyers who work in areas involving evidence {about .8% of them} )

Rule 801. Definitions The following definitions apply under this article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

We will look at exceptions down later on. But gossip is literally restating what is heard and attributing it as such and hearsay is repeating what someone else said as truth. We dare say that in gossip, truthfulness is not the name of the game, it is the essence of not taking responsibility for the truth of the matter.

Now many confuse what they call exceptions to the Hearsay rule and it is simply not hearsay at all.

Mary said “there were ghosts in the house”. Was repeated by Bill. Now unless we are trying to prove that there were in fact ghosts in the house, the statement is clearly to point out that Mary thinks there are ghosts in the house. (leave a story about ghosts out of it) We all now understand that Mary believes in ghosts. We do not give a rat’s derriere about whether or not there are ghosts. As gossip it will be fun for those who do not believe in ghosts to make fun of Mary. As hearsay it does not count for it is not being looked upon to establish ghosts.

Truth is way overrated when it comes to love.

I love people I have not met and would lie for them.

I would lie to my wife for her love.

I would lie to keep my children out of harm's way.

Truth is like that wonderful mistress you have not met yet and if you think you have met either, I am sorry for you.

Let us take a fun one, now assume no recording. Sterling in fact tells Stevie that he hates black people. Stevie tells Joe that Sterling says this. Nobody cares if Sterling hates black people, he just cannot say that he does and let it be known that he says that. It is near humorous when someone attributes truth to it when Stevie is his lover and black. But who cares, that is not what the statement is offered for. It is offered to show a man with no respect at all for other people. Case closed – truth of the matter is irrelevant. The only important truth is that he said it.

(caveat here, forget the legality of the recording, even the recording cannot be used to show Sterling hates blacks, only that he said that.)

Now for another none exception exception. Bob shakes Bill’s hand and says “we have a deal and here is my 100 dollars. Who cares if Bill and Bob have a deal, that is for other evidence, Bob thinks he has a deal. For now we do not care if he does we just care that he thinks he does – not hearsay because it is not offered to show the truth of a deal but the truth that Bob thinks he has a deal. Can you see the distinction? Do not worry about half of that .8% of lawyers do not get it either and here is the crux of the matter to understand: “offered in evidence to prove the truth of the matter asserted.” So now when Bill goes and kills Joe for 100 dollars we may not of established a contract for a hit, but we established Bob’s intent to kill Joe. Joe is dead, hmmm what do you think?

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. This is like when something is being described at the time of an event and is our best evidence of the event. It is really hard to lie while simultaneously reporting something. (personally I can but that is psychopathic are really hard to do)

(2) Excited utterance. That is like “AH IT IS ALIVE!!!!” Close to the above and equally reliable because very difficult to fake. (tv aside)

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. We leave that explanation exactly as written in law. Try to see the distinction here from the non-exception and no. 1

(4) Statements for purposes of medical diagnosis or treatment. Except for alcoholics and drug addicts people do not really lie to their doctor or priest.

(5) Recorded recollection. This one is a sticky wicket. If on Saturday june 4, 1990 I wrote down what happened and now cannot really remember exactly, but I remember I wrote it down accurately I can read that to people now. The document does not come in but I can read it. (if you are a lawyer – do not go there, just go with refreshed memory and have them read it to themselves and the relate what happened with a refreshed memory – big difference)

(6) Records of Regularly Conducted Activity. Just think of a clerk working in any kind of office, and then think of a receipt out of a computer cash register – like a MacDonalds. That stuff is just so normal and boring it is trustworthy.

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Your brain has to work in 5 dimensions to get this concept – just think about it and leave it alone. (I did try a murder case that hinged on this once – an inventory did not show a syringe,,,, so how did she inject him)

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. This one we leave because we should be more suspicious of our government.

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of public record or entry. This one is horrible, do you mean to tell me that someone lost my marriage certificate so that is evidence I am not married --- what a crock and obviously meant to protect the government.

I hope you have some fun scratching your head here. I did. I taught this for a bit and used it for a bit to get my way with the legal system. Because it is so complex most lawyers do not get it. I am happy to report that most judges do and almost all justices do get it. Hey if this gets any response I will write another with another 13 “exceptions” to the rules – I just love exceptions to rules.

I must report that I am a scallywag, I do not practice law anymore and am in no way licensed anywhere except maybe still in Mexico and Vietnam by weird circumstance and they never completely kicked me out of the Tax courts of the US. I was a crazy renegade attorney out of La Jolla CA and they finally ran me out of the Bar and two other bars – Valencia and Sante’s. Oh well I was in my twenties and had business in Mexico so “say law fee” as I like to say.

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