Hearsay Exceptions: It Ain’t Necessarily So - Articles

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Posted by: Donald Paine on Nov 1, 2011

Journal Issue Date: Nov 2011

Journal Name: November 2011 - Vol. 47, No. 11

Jean-Jacques Rousseau wrote that a “great princess” was heard to say about the hungry French peasants: “Let them eat cake.” Through the ages to the present day folks have taken as truth that Marie Antionette was the declarant.

But she never said it. She was notable for her compassion toward the masses. The legend is utterly false. See Antonia Fraser’s Marie Antionette (2001) at page 124 and Ann Coulter’s Demonic (2011) at page 104.

Would Rousseau’s autobiographical Confessions be admissible in an American courtroom to prove the truth of the declaration? In a federal courtroom it would be. The ancient documents hearsay exception at Fed. R. Evid. 803(16) admits “a statement in a document that is at least 20 years old and whose authenticity is established.”

In a Tennessee courtroom Rosseau’s book would be excluded. Tenn. R. Evid. 803(16) admits only those ancient documents “purporting to establish or affect an interest in property.”

We need to keep in mind that some hearsay exceptions have greater indicia of reliability than others. Most would agree that former testimony is relatively trustworthy. The testimony has been subjected to the right of prior cross-examination. In contrast, a declarant’s extrajudicial statement about her mental state on a given occasion may be suspect. Because we need such evidence, however, we carve out an exception for it.

The main thing to remember about opposing counsel’s hearsay evidence is that you can challenge it. Call a witness or introduce a document that allows the jury to side with your client. Even admissible hearsay ain’t necessarily so.

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, and the Tennessee Judicial Conference.