First you have to learn to spot POTENTIAL hearsay, e.g., places where a hearsay objection could be made. Here is a brief spotting guide .
Once there is an objection, we play a game lawyers love called "Find the Loophole." In 95% of the situations where evidence looks like hearsay, it is ultimately admissible if you can find the loophole. There are four types of loopholes:
1) Hearsay has a precise definition, so much of what looks like hearsay does not fit the definition in Rule 801(a-c) -- because it is not a statement, does not assert any facts, or is not offered to prove the truth of the matter asserted.
2) Some matters are simply exempted from the hearsay rule under Rule 801(d), notably statements made by or attributable to the opposing party.
3) Much of the evidence that fits the definition of hearsay nevertheless falls into one of the 30 or so exceptions found in Rules 803 and 804 (and occasionally in statutory or common law).
4) Even if "hearsay" evidence falls into none of these categories, it is still admissible in the discretion of the judge in the interests of justice under Rule 807.
We will start at the beginning, with the definition of hearsay.
Let's go through the Hearsay Hypothetical that was linked to the syllabus. The issue is whether Elvis is still alive. For those of you not familiar with American popular culture, Elvis Presley was the
most famous American celebrity and performer of the 1970's. He died from persistent drug abuse in 1977. Millions of people believed that he was not really dead. They thought Elvis came to realize
that his celebrity lifestyle was killing him, so he faked his own death, entered drug rehabilitation, and moved to some remote place where he could live quietly. For years after his death, the tabloids
were full of reports from places like Mt. Judea, Arkansas from eyewitnesses who has "seen" Elvis. His garish mansion in Memphis [Graceland] remains a huge tourist attraction. Lisa-Marie Presley is
Elvis' daughter, who was briefly married to Michael Jackson.
In line (1), Newt testifies that he saw Elvis and "he spoke to me."
If the defense objects as hearsay, what is the best response? When you think you know the answer, click here.