Help Wanted

[John Fazio]

Roger, Pamela, Laurie:

I tell you without hesitation that there is not one lawyer in 100 who truly understands the hearsay rule. I am among the 99. It is so complicated that some systems of jurisprudence do not even have it, preferring instead to admit all of it and then treat it as an issue of how much weight to give it rather than as an issue of admissibility. Generally stated, it refers to testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness. Easy, right? In your dreams, because there are (in Ohio, anyway) 22 exceptions to the rule, and that's only when the availability of the declarant (i.e. the one whose statement is sought to be admitted, not the witness testifying) is immaterial. There are another six exceptions when the declarant is unavailable. Then there is what is known as "hearsay within hearsay", aka "double hearsay" and "multiple hearsay". For it to be admitted, both parts have to fall within an exception to the general rule. Further, and quite apart from the exceptions, one must distinguish between hearsay and statements which are not hearsay. What are the latter? Well, try this:

1)Prior statement by a witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is a) inconsistent with his testimony, and was given under oath subject to cross examination by the party against whom the statement is offered and subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or b) Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or c) one of identification of a person soon after perceiving him, if the circumstances demonstrate the reliability of the prior identification.

Easy, right?

There is another example of non-hearsay, but I'll spare you.

Lloyd's testimony as to what Mrs. Surrat said to him obviously fell within an exception to the rule. His testimony was not even objected to by very competent defense counsel. What exception? Perhaps a "present sense impression", or perhaps an "excited utterance", or perhaps "then existing, mental , emotional, or physical condition", or perhaps a "statement against interest".

John