Hearsay - A Vest Pocket Rule

October 2010
By Judge Leslie Roberts, Multnomah County Circuit Court.

Litigation is the pursuit of practical ends, not a game of chess.
Felix Frankfurter

This month's edition of Tips from the Bench speaks to an aspect of evidence law that seems to provide challenges to many trial lawyers: the split-second decision to object to the offer of testimony mentioning what someone else said. All too frequently a resulting hearsay objection is, and should be, overruled. The lawyer loses credibility and the objection detracts, if only momentarily, from the issue at hand. Futile hearsay objections are sand in everyone's sandwich.

The course of trial gives no opportunity for a systematic walk through the twists and turns of the hearsay rule and its exceptions. What is needed is a short cut that works, at least in most instances, almost without thought. Fortunately it is at hand, because the hearsay rule is not just a group of arbitrary definitions and exceptions: it is a necessary and logical part of the time-honored machinery by which we seek truth in litigation.

We have the ancient rule against hearsay because we have an equally ancient veneration for the power of cross-examination to expose untruth. The two go hand in hand. The hearsay rule exists to ensure that no witness's testimony that should or could be tested by cross-examination, escapes cross-examination. So the key is, do you need to test the truth of the statement by cross-examination? If the answer is no, you can't and shouldn't object.

(We all know that cross-examination can serve other purposes than to test the truthfulness of specific testimony that was previously given. Cross-examination may add to that testimony related but favorable information and provide context. The only function of cross-examination relevant to the hearsay rule, however, is its role to expose falsehood.)

Let us say that witness Mary is being asked to testify to what Joe (not present at court) said. Mary is in court, making a statement about what she heard - i.e., Joe talking. Mary's account of what she heard is not hearsay because she is available for cross-examination to test if she heard it or not. Our concern is not with what Mary heard, but with what Joe said. The possible hearsay problem lies in the need to cross-examine Joe, who is not present for examination. The question you should ask - the pocket hearsay rule - is simply whether you want to test the truth of Joe's statement.

If Mary's testimony is, "Joe asked me where I was going," you can't object, because you don't need to test whether Joe's statement was true or false; it couldn't be either one. A question can't be inaccurate. Don't make a hearsay objection. (I've had hearsay objections in just this situation, however.) It is meaningless to ask the "truth" of a question, and therefore equally misguided to raise a "hearsay" objection.

A proponent of testimony may assert that a statement is "not offered for its truth." (That was true of Joe's quoted question.) Again, however, the pocket version of the rule provides a litmus test.

Assume Mary said, "Joe told me the business is making millions!"

If the relevant issue for the trial is the motive of Mary to seek to obtain an interest in the business, you don't need to prove that Joe was wrong or right about profitability. (In fact, Mary probably now knows to her grief that it was a lie.) Therefore you don't need to cross-examine Joe and should not object on hearsay grounds (except, if you wish, to ask the court for a limiting instruction to the jury). All that was relevant in that case was the effect of Joe's story on Mary's motivations. Joe could have been blowing smoke for all that it matters to the case. Don't object.

On the other hand, if the same testimony is offered against your client (who is not Joe) in a partnership dissolution proceeding and the very issue is the value of the partnership business, you must object. The truth of the statement is vital, and must be tested by cross-examination of the person who asserts that the business is, indeed, profitable.

If your own client is Joe, you can't object to Mary's testimony about what Joe said. The pocket rule shows why. A person - Joe in this case - does not need to cross-examine himself. The pocket hearsay test - do you need cross-examination - is answered in the negative. The difficulties, if any, are simply whether the statement can fairly be characterized as Joe's statement because (let us say) it was supposedly made in his behalf by a representative (such as an employee of Joe, Inc.) rather than by an individual party named in the complaint (i.e., Joe). For instance, the dispute frequently depends on whether the employee who made a damaging admission was speaking about a matter within the scope of his duties. (See OEC 801 (4)(b) (D).) (The pocket hearsay rule does not help sort out that issue, which is a problem of the law of agency.)

Note, by the way, that the pocket rule shows why you may, indeed, object to a hearsay statement by a co-defendant or co-plaintiff. The fact that these out-of-court speakers are parties to the case is nothing to your client: you still need to test their reputed statements by cross examination. It is only your own client whom you have no need to cross examine.

There is a long litany of exceptions allowing hearsay in evidence regardless of the susceptibility of the out-of-court speaker to be called as a witness. OEC 803. The good news is that the pocket rule sort of works, even there, because in practical reality you don't really want to cross-examine those witnesses.

The OEC 803 exceptions exist because there are assurances of credibility that have been traditionally (or legislatively) regarded as at least equivalent to cross-examination as an assurance of reliability. Even if the relevant witness was produced, your cross-examination would probably consist of, "No questions for this witness."

The most commonly used exception to the hearsay rule in civil trials is the exception for business records. (Remember that "business" for this purpose sweeps broadly, including every sort of regular institution, association, or calling.) For instance, assume water usage is at issue. The witness with first-hand knowledge is the meter reader. But the opposing party would not seriously try to attack the veracity of the meter reader, who was just doing her normal job and doesn't even know who lived in the residence served. Therefore, the business records exception allows use of the records of what the meter reader saw. OEC 803 (6). You still need the custodian of the records to establish that the records are, in fact, the authentic records kept in the regular course of business (but best practice is to stipulate to that foundation when there is no good faith dispute). The pocket test - whether you need cross-examination to test veracity - gives you a common sense hint whether a hearsay exception might apply. (Of course, the pocket rule is just a proxy for the actual rule; once defending an objection to the court, you need to cite the actual rules in all their precision.)

Hearsay may also be allowed based on the unavailability of the speaker, but under very limited circumstances. OEC 804. But for the accident of death, insanity, absence, or obstinate silence of the witness, the testimony could not be presented by hearsay. Fortunately, those exceptions are few and far between. The type of hearsay - prior testimony - that can be used is strictly limited. Even that testimony can only be used if the prior testimony was subject to cross-examination by the opposing party under circumstances when that party (or a predecessor in interest) had a similar opportunity and motive to cross-examine the witness. (Notice that that "similar motive" requirement generally is a stumbling block to the use of a discovery deposition.) Even in that most exceptional of hearsay exceptions, the hearsay rule and the right of cross-examination are two sides of a single coin.