Say What?

Originally appeared in the November 1999 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Say What?

BY ANDREW J. McCLURG

The hearsay rule and its many exceptions are a marvel of complexity. The confusion starts with the basic definition of hearsay as any statement made out of court “offered to prove the truth of the matter asserted.” If an out-of-court statement is offered for a purpose other than proving truth, it’s admissible.

Some lawyers believe all statements are offered to prove their truth and that opponents sometimes subvert the rule by misrepresenting the real purpose for which evidence is offered.

This allegedly occurred in a recent criminal case where John was on trial for killing Bill. The prosecution pinned its case on a post-it note seized from John’s refrigerator that said “To Do: 1. Pick up dry cleaning. 2. Empty litter box. 3. Kill Bill.”

The defense cried hearsay, but the prosecutor argued indignantly that the note wasn’t being offered to prove John killed Bill, but only to show John has good penmanship, is an organized person and has potential as a hit songwriter because he can rhyme “Bill” and “kill.” The judge readily agreed and admitted the note, but cured any problem by telling the jury not to think about it.

Of course, John’s note could also come in as an Admission of a Party-Opponent, but why the law gives credence to these stick-in-the-muds is a mystery. In any event, all lawyers can use a refresher on the hearsay exceptions. Here are two for starters:

Records of Vital Statistics. Diverse constituencies attended the drafting convention for the hearsay rules, including a faction of rabid sports fans with a love of sports trivia. These diehards insisted on a hearsay exception for records of vital statistics such as most RBIs, most yards rushing and most third down conversions by a player facing mandatory sentencing.

Opponents argued the exception was unnecessary because such statistics can come in under other exceptions, such as that for dying declarations: “Gasp. Most touchdown passes … cough … cough … Dan Marino … ackkk.”

But the determined sports fans won. Unfortunately, lots of precious courtroom time is wasted over squabbles about whether a statistic is “vital.” Cubs fans think their stats are vital, Knicks fans theirs, it goes on and on. At one recent trial the litigants got so rowdy they began throwing snow balls at the jury and beer sales had to be shut down.

Mental, Emotional or Physical Condition. Another important hearsay exception is for statements regarding a person’s mental, emotional or physical condition. Under this rule, just about any gripe concerning what ails a person is admissible. “My back is killing me,” “I think I’m gonna throw up” and “Oh no, I have a huge zit” all come in. The problem is no one wants to listen to this complaining in the first place, much less admit it into evidence.

However, sometimes a closer look reveals evidentiary significance in everyday whining, as the above examples demonstrate when studied in context:

“My back is killing me. I’m not carrying that body one more step.”

“I think I’m gonna throw up. Maybe I should cut down my intake of illegal narcotics.”

“Oh no, I have a huge zit. I hope no one recognizes me from the liquor store robbery.”

Next month we’ll cover the hearsay exception for “excited utterances,” concentrating on lawyers’ responses to the statement: “I’m leaving the firm and taking all the clients with me.”

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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