Is Reputation Evidence Hearsay?

Reputation is an important type of evidence. It is the usual proof of character, useful to demonstrate conforming conduct under Rule 404 and to impeach under Rule 608.

But is reputation evidence hearsay? I have pondered the question during almost 50 years of learning, practicing and teaching law. Perhaps it's time for an answer. Yet one can reasonably argue both positive and negative positions.

What is my reputation? It is what people say and write behind my back. Their collective gossip forms my repute as scholar or dunce, workaholic or sloth, beer aficionado or beer swiller.

If the gossipers (elevated by evidence nomenclature to the status of declarants) must be telling the truth for my reputation to be relevant, then I suppose we have a hearsay problem. But even if the gossipmongers are lying, my reputation remains the same and there is no hearsay problem.

Despite this conundrum, the Rules of Evidence treat reputation as hearsay.

Happily we have hearsay exceptions. Let's review a few.

The one most frequently employed in court is Rule 803(21) on character reputation. "The following are not excluded by the hearsay rule: reputation of a person's character among associates or in the community."

Please observe that one's reputation can be formed in a community (the olden common law neighborhood) or among associates. Your author knows few folks at his Inskip apartment complex, and few know the recluse. I have no community reputation. But I am known by my "associates" at the Law College and at several Knoxville restaurants. In contrast, secretary Karen has an excellent community reputation in rural Mascot. She has lived there since birth.

Probably the next most common, at least in the hills and valleys of East Tennessee, is Rule 803(20). It admits "reputation in a community, arising before the controversy and existing 30 years, as to the boundaries or customs affecting lands in the community."

Finally we have Rule 803(19). This pedigree exception prevents hearsay exclusion of "reputation among members of a person's family by blood, adoption, or marriage or among associates or in the community concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history."

Let us close with the words of Shakespeare's notorious liar Iago, speaking to Othello shortly before Desdemona's murder:

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash;
   'tis something, nothing;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.

Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.