As we know, the hearsay doctrine is complex and not easy to master. The doctrine’s purpose is to exclude unreliable evidence from the purview of the jury. The rules of evidence prefer testimony to be made in court and subject to the scrutiny of cross-examination. With the aid of cross-examination a witness can be vetted as to perception, memory, and sincerity with regard to testimony made on the stand at trial. When that testimony is initially made out of court by a declarant and then repeated in court it may be considered inadmissible hearsay. Remember that the hearsay requirements are that the words or phrases stated are assertive in nature, made by a human being who is considered an out of court declarant, and finally that the statement is being offered to prove the truth of the matter asserted in the statement.
One issue that sometimes arises in a hearsay consideration is whether the statement was in fact made by a human being. If the statement is not made by a human being then that statement falls outside the definition of hearsay. That being said, there are a variety of contexts in which information is produced or delivered via electronic means. At first glance it would seem that since this information is being delivered by a computer or other electronic means that the human delivery requiemement is not satisfied and thus the statement should not be considered hearsay. This is not necessarily the case.
In this context, you can have a couple different situations. The first situation is where a computer takes in various data and produces information based on this same data. For example, a thermostat takes in air temperature data and produces a statement in the form of a number based on that air temperature data. This type of statement should not be considered a statement by a human being and thus the statement would not be prohibited by the hearsay prohibition. The reason being is that the technology itself is impervious to traditional cross-examination. Thus the intent of the hearsay prohibition could not be satisfied. That being said, the computer generated statement is still subject to the rules of evidence requiring qualifications as to the reliability of the technology and resulting data. That is a different issue.
The second situation you will come across is the situation in which a human being collects data him or herself and then enters that data into a computer. In this situation the computer is simply storing information which was created by a human being. In this context though the information is ultimately derived from an electronic source the data is nonetheless considered to be a statement made by a human being. The reason being is that although the information is stored electronically, the accuracy of those statements depend on the testimonial qualities of the person who created the statement in the first place. The resulting information would thus likely be considered to fall within the definition of hearsay. That being said, there may be ways to get around the hearsay prohibition in this context as there are exceptions for this type of stored information, notably the business records exception.
Another intriguing area of the hearsay law comes to mind when we talk about an out of court statement made by an individual who is now in court and presently able to testify. Remember that the purpose for excluding hearsay statements is that we wish to be able to cross examine the declarant of those statements so as to gauge the reliability of those same statements. There are some jurisdictional differences with regard to how such statements should be interpreted, when the declarant is presently available to testify. However, the vast majority of jurisdictions consider such statements to be hearsay despite the fact that the declarant is presently available to testify in trial. The Federal Rules of Evidence assumes this same position but make a few exceptions to this rule. The Federal Rules of Evidence exclude from the definition of hearsay prior statements, when the declarant is present and subject to cross examination, assuming that the statement is inconsistent with a prior statement made under oath, assuming that the statement is consistent with the declarant’s testimony and offered to rebut a charge of fabrication, or if the statement identifies someone the witness identified on a previous occasion.
The fact that an out of court statement is determined to be hearsay is not conclusive of whether the statement can be admitted into evidence. There are numerous exceptions and exemptions to what would otherwise qualify as inadmissible hearsay. One that you may come across more frequently will be that of an admission by a party opponent. This essentially amounts to an out of court statement which is offered for its truth. The rule requires that the out of court statement to be a statement which is currently against that same parties own interest in the case at hand. If you, as counsel, are seeking to lay a proper foundation for an admission by party opponent you should start your query by confirming where and when your witness heard the statement. Have your witness then identify the opposing party as the one who made the statement. Finally, have your witness illicit the opposing parties statement, remember that this statement must be inconsistent with the position that opposing party is now taking at trial.
When you are considering admissions by party opponent keep in mind that the exemption includes more than just those statements made directly by the opposing party. There are situations in which the opposing party can be said to have adopted an admission. This context will arise when a different individual makes the statement and then the opposing party either expressly or impliedly adopts that same position. The party opponent will be said to have expressly adopted the position when he or she makes a statement indicating that he or she agrees with the statement. The opposing party can also impliedly adopt another parties’ statement when the opposing party hears a statement which an ordinary individual would expressly disagree with but the opponent does not disagree with but rather remains silent. The parties silence is deemed to be a tacit admission of the statement. In this context the party opponent is said to have impliedly adopted the statement.
There are other situations where the party opponent may not have expressly or impliedly adopted a statement made by another yet the other individual’s statement will be attributed to the party opponent. The situation which will typically give rise to this is that situation in which the party opponent has an agent who makes statements on his or her behalf. The Federal Rules of Evidence don’t require that the party opponent authorize the agent’s statement. The Federal Rules of Evidence simply require that the speaker was an agent when making the statement and the statement related to the agents responsibilities. The agent’s statements will be attributed to the party opponent in this context.
The above article reflects a few of the hearsay rules as promulgated by state evidentiary rules as well as the Federal Rules of Evidence. Remember that each state has its own set of evidentiary rules which may or may not reflect the Federal Rules of Evidence. For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations. This is an excellent book which will give any reader terrific insight as to the rules of evidence. I am by no means an expert in this area. I write these blogs/articles for my own personal learning benefit.