Document Type

Article

Abstract

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own.

That is just the visible aspect of the problem. Lawyers are no better at hearsay than judges. Yet for every trial, there are countless non-trial resolutions where no evidence is presented, much less ruled upon. When hearsay is involved, parties evaluate the wisdom of these dispositions (dismissals, settlements, and guilty pleas) with only a rough understanding of the evidence that would be admissible at trial.

This Article attempts to remedy this unsettling state of affairs. First, to get around the dullness problem, it weaves hearsay analysis into a mystery in the spirit of a John Grisham novel. The fictional tale of intrigue and murder twists and turns while dropping clues that ultimately solve the case. Then, the Article tackles hearsay’s complexity by solving the evidentiary puzzles inherent in those clues, which represent key inflection points in the doctrine. By explaining which clues can be presented to the jury, and how those answers evolved over time, the Article paints the modern American hearsay landscape and rehabilitates its (unfairly) reviled rules. Finally, the Article explains why—if we are going to have a hearsay prohibition—this is as good as it gets. Contrary to the complaints of numerous critics, the current hearsay definition is the simplest of the alternatives and offers the best results.