The Hearsay Rule - Carolina Academic Press Hearsay Rule G. Michael Fenner Professor of Law,...

The Hearsay Rule

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The Hearsay Rule

G. Michael FennerProfessor of Law,

Creighton University School of Law

Carolina Academic PressDurham, North Carolina

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Copyright © 2003 G. Michael FennerAll Rights Reserved

ISBN 0-89089-089-7LCCN 2002108685

Carolina Academic Press700 Kent Street

Durham, NC 27701Telephone (919) 489-7486

Fax (919) 493-5668www.cap-press.com

Printed in the United States of America

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For Anne

For Hilary and Ben

And now for Tashi too

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Contents

Table of Authorities xxvForeword liiiAcknowledgments lvii

Chapter One. The Basic Definition 3I. Introduction to Hearsay 4II. The Definition of Hearsay 9

A. The Definition 9B. The Formula 10C. An Explanation of the Definition 10

1. A Statement 102. An Out-of-Court Statement 133. Offered to Prove the Truth of the Matter Asserted 14

a. The Assertion 14b. The Issue 15c. The Assertion and the Issues Compared 15

4. Rule 801(d) 17III. The Top Eleven Approaches to Hearsay 18

A. The Top Eleven Approaches 181. The Formula 182. The Manufactured-Evidence Approach 183. The Real-Witness Approach 234. The Two-Boxes Approach 285. The Comic-Balloons Approach 286. The What-We-Want-to-Know versus What-the-

In-Court Declarant-Perceived Approach 297. The Plain-Fact-That-the-Words-Were-Spoken

Approach 298. The Credibility Approach 309. The Effect-on-the-Mind-of-the-Hearer Approach 3110. The Words-with-Independent-Legal-Effect

Approach, a.k.a. the Verbal-Acts Approach 31

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11. The Flow-Chart Approach 33B. Some Analysis and a Few Caveats 36

1. Rule 801(d) 362. Overlap 363. Imprecision 364. The Best of the Eleven 36

IV. Examples — The Basic Definition Applied 37A. Variations from Shepard v. United States 37

1. Shepard Example One 372. Shepard Example Two 383. Shepard Example Three 394. Shepard Example Four 405. Shepard Example Five 42

B. Lee Harvey Oswald 44C. “I Shot the Sheriff ” 44D. A Mother’s Love 46E. “I Want to Discontinue My Insurance Policy” 47F. “He Killed My Brother and He’ll Kill My Mommie Too” 48

Chapter Two. The Definitional Exclusions 51I. The Definitional Exclusions versus the Exceptions —

Evidentiary Burdens 53II. Nonhearsay Prior Statements by a Witness: Rule 801(d)(1) 59

A. Prior Inconsistent Statements: Rule 801(d)(1)(A) 591. Text of the Rule 592. Foundational Elements 593. Need + Reliability = 1 60

a. Need 60b. Reliability 60

4. Use Note 60B. Prior Consistent Statements: Rule 801(d)(1)(B) 62

1. Text of the Rule 622. Foundational Elements 623. Need + Reliability = 1 63

a. Need 63b. Reliability 63

4. Use Note 63C. Statement of Identification of a Person:

Rule 801(d)(1)(C) 671. Text of the Rule 672. Foundational Elements 67

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3. Need + Reliability = 1 68a. Need 68b. Reliability 68

4. Use Note 68III. Nonhearsay “Admissions”: Rule 801(d)(2) 70

A. General Use Note 701. Exclusions, Not Exceptions 702. The Two Sets of Definitional Exclusions 703. Need + Reliability = 1 714. Using the Out-of-Court Statement Itself to

Establish Foundational Elements of These Exclusions 72

B. A Party’s own Statement: 801(d)(2)(A) 721. Text of the Rule 722. Foundational Elements 733. Use Note 73

a. This Exclusion Is Particularly Important 73b. There Is No “Against Interest” Requirement

with This Exclusion 73c. There Is No “Trustworthiness” Requirement

with This Exclusion 74d. The Rationale for This Exclusion 74e. Exclusions versus Exceptions 74f. The General Use Note 74

C. A Statement by an Agent: 801(d)(2)(D) 751. Text of the Rule 752. Foundational Elements 753. Use Note 75

a. The Timing of the Statement 75b. Things That Are within the Scope of the

Agency or Employment 76c. Agent Defined 78d. The Role of the Statement in Establishing

Its Own Foundation 80e. Exclusions versus Exceptions 80f. The General Use Note 80

D. Statement by Person Authorized to Speak:801(d)(2)(C) 801. Text of the Rule 802. Foundational Elements 813. Use Note 81

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a. This Exclusion Is Mostly Subsumed by Another 81b. Authorized to Make a Statement 82c. The Role of the Statement in Establishing Its

Own Foundation 83d. Exclusions versus Exceptions 83e. The General Use Note 84

E. Adoptive Admission: 801(d)(2)(B) 841. Text of the Rule 842. Foundational Elements — Two Kinds of

Adoptive Admissions 84a. Foundational Elements — Explicit

Adoptive Admission 84b. Foundational Elements — Implicit

Adoptive Admission 843. Use Note 85

a. Explicit Adoptive Admissions 85b. Implicit Adoptive Admissions 86c. A New Way to Look at Adoptive Admissions 89d. Impeachment of the Person Who Made the

Statement That Has Been Adopted 90e. Ambiguous Responses Are Not a Basis for

an Adoptive Admission 90f. Other (Non-Adoptive) Reasons for the

Lack of a Denial 91g. Exclusions versus Exceptions 95h. The General Use Note 96

F. Admission by a Coconspirator: 801(d)(2)(E) 961. Text of the Rule 962. Foundational Elements 963. Use Note 96

a. The First Foundational Element:A Conspiracy Existed 96

b. The Second Foundational Element:The Party against Whom the Statement Is Offered and the Declarant Were Both Members of the Conspiracy 97

c. The Third Foundational Element: The Statement Was Made during the Conspiracy 98

d. The Fourth Foundational Element:The Statement Was Made in Furtherance of the Conspiracy 100

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e. Statements Made before the Coconspirator on Trial Entered into the Conspiracy 102

f. Statements Made while Covering-Up the Crime 102

g. Other Ways to Get Coconspirator Statements into Evidence 105

h. The Substantive Law of Conspiracy versus the Law of Evidence 107

i. Using the Text of the Statement Itself to Prove the Foundational Elements 107

j. Conditional Admission, Subject to a Motion to Strike 109

k. Exclusions versus Exceptions 109l. The General Use Note 109

G. Must an Admission Be Based on Personal Knowledge? 1091. Rule 805 and Double Hearsay 1102. Rule 602 and Personal Knowledge 115

IV. Additional Examples of Various Applications ofthe Hearsay Definition 121A. “I Give to You [but Mostly] You Give to Me,

Love Forever True,” Plus Half-a-Million in Cash and Some Lovely Jewelry 1211. The Facts 1212. The First Issue: Kritzik’s Intent 1223. The Second Issue: Harris’s Intent 1234. The Hearsay Aspects of This Evidence,

As Summarized by the Seventh Circuit Court of Appeals 124

5. What to Do with Evidence That Is Hearsay to One Issue and Nonhearsay to Another? 125

B. Auto Accident Examples 125

Chapter Three. Rule 803, Selected Exceptions 129I. Introduction to the Exceptions Generally, and to Rule

803 in Particular 135A. Exceptions: A Brief History 135B. N + R = 1: The Shared Theoretical Basis for Each

Exception 136C. Rule 803’s Exceptions versus Rule 804’s:

The Availability of the Live, Firsthand Testimony of the Out-of-Court Declarant 139

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D. The Foundational Elements, the Evidentiary Burden, and the Decision Maker 139

II. Present Sense Impression: Rule 803(1) 142A. Text of the Rule 142B. Foundational Elements 142C. Need + Reliability = 1 142

1. Need 1422. Reliability 143

D. Use Note 145III. Excited Utterance: Rule 803(2) 145

A. Text of the Rule 145B. Foundational Elements 146C. Need + Reliability = 1 146


D. Use Note 1481. The Unidentified Onlooker As Out-of-Court

Declarant 1482. Self-Serving Statements 1493. Laying the Foundation for the Statement with

the Statement Itself 1514. The Keys to the Excited Utterance Exception:

The Particular Event and the Individual Declarant 153

5. An Excited Utterance Provided in Response to Questioning 155

6. Two Differences between the Present Sense Impression Exception and the Excited Utterance Exception 156

a. Immediacy 156b. “Describing the Thing Being Perceived”

versus “Relating to the Startling Event” 1587. A Series of Exciting Events (the Rolling

Exciting-Event) or a Subsequent Related Event Triggering Excitement Anew 161

8. Often an Out-of-Court Statement Will Be Both a Present Sense Impression and an Excited Utterance 163

9. The Excited Utterance and the Child Witness 165IV. State of Mind or Statement of Then-Existing Mental,

Emotional, or Physical Condition: Rule 803(3) 169

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D. Use Note 1731. The Breadth of the Exception 1732. The “No Elaboration” Rule 175

a. In General 175b. Damages, but Not Proximate Cause 176c. The Difficult “No Elaboration” Cases 177

3. A Statement That Looks to the Past 1794. A Statement That Looks to the Future 1815. Not Including Statements of Belief 1846. The Out-of-Court Statement Must Reflect

the Declarant’s Own State of Mind 1857. The Out-of-Court Statement Must Be a

More or Less Direct Statement of the Declarant’s State of Mind 187

8. Just Because an Out-of-Court Statement Fits under This Exception Does Not Mean It Is Admissible into Evidence 189

9. State of Mind Evidence That Is Not Hearsay in the First Place 190

10. The State of Mind Exception and the Excited Utterance and Present Sense Impression Exceptions 192

11. The Intertwining of the Admissible and the Inadmissible: Redaction and Rule 403 193

V. Statements for Purposes of Medical Diagnosis or Treatment: Rule 803(4) 194



D. Use Note 1961. The Person to Whom the Statement Was Made 196

a. In General 196b. Statements Regarding Mental Health 199

2. The Person by Whom the Statement Was Made 202

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3. The Reason the Statement Is Made 2064. The Content of the Statement 2065. The Timing of the Facts Stated 2096. Admissibility of the Statement as Nonhearsay

Basis Evidence 210VI. Recorded Recollection: Rule 803(5) 211

A. Text of the Rule 211B. Foundational Elements 211C. Why Not Let the Paper or Other Record into

Evidence? 212D. Need + Reliability = 1 213


E. Use Note 2141. Past Recollection Recorded versus Present

Recollection Refreshed 2142. Present Recollection Refreshed 2173. A Past Recollection That Was Recorded by

Someone Other Than the In-Court Witness 2194. The Record Must Have Been Made while the

Event Was Fresh in the Witness’s Memory 2205. Showing that the Record Correctly Reflects

the Witness’s Knowledge 2216. Statements Recorded in Memory, Rather Than

on Paper 2237. A Re-Recording of Original Notes 2248. Foreign Records as Past Recollection Recorded 224

VII. Records (and Absence of Records) of a Regularly Conducted Activity: Rules 803(6) & (7) 224A. Text of the Rules 224B. Foundational Elements 225C. Need + Reliability = 1 226


D. Use Note 2281. Made in the Course of a Regularly Conducted

Business Activity 2282. Information Automatically Gathered and

Retained by Computer 2293. The Sponsoring Witness, i.e., the Witness Who

Establishes the Foundation for the Exception 230

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a. Establishing the Foundation with the Live Testimony of a Sponsoring Witness 230

b. Establishing the Foundation without the Live Testimony of a Sponsoring Witness 232

4. Multiple Levels of Hearsay 2345. The “Trustworthiness” Clause 235

a. Judicial Discretion to Exclude the Evidence If It Seems Untrustworthy 235

b. The “Trustworthiness” Clause and the Burden of Proof 237

6. Foreign Records of Regularly Conducted Activities 238VIII. Public Records and Reports: Rule 803(8) 239

A. Text of the Rule 239B. Foundational Elements 239C. A Variation of This Rule That Is Worth Considering 240D. Need + Reliability = 1 240


E. Use Note 2421. Establishing the Foundation with Certified

Copies of the Record 2422. Multiple Levels of Hearsay 2433. Records Prepared by Private Parties and Filed

with Public Agencies 2444. The “Trustworthiness” Clause 245

a. Judicial Discretion to Exclude If the Evidence Seems Untrustworthy 245

b. The Burden of Proof Regarding Trustworthiness 248

5. Introducing the Entire Investigatory File 2486. Reports Prepared by State and Local

Governments and by Foreign Governments 2497. Police Reports 2508. Near-Miss Evidence — Documents That Just

Miss Fitting under This Exception and Fit under Some Other Exception 252

IX. Absence of Public Record or Entry: Rule 803(10) 252A. Text of the Rule 252B. Foundational Elements 253C. Need + Reliability = 1 253

1. Need 253

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2. Reliability 253D. Use Note 254

X. Statements in Documents Affecting an Interest in Property: Rule 803(15) 255



D. Use Note 2581. The Kinds of Documents Covered by This

Exception — In General 2582. The Kinds of Documents Covered by This

Exception — Examples 259XI. Statements in Ancient Documents: Rule 803(16) 261



D. Use Note 2631. The Increasing Importance of This Exception 2632. Old Age and Authenticity Alone Establish This

Exception, without Any Special Regard for Trustworthiness 265

3. Nonhearsay Admissions and Ancient Documents 2684. Undated Documents 2685. Photographs and Other Such Ancient

“Documents” 2686. Foreign Ancient Documents 2697. Multiple Levels of Hearsay 2698. Ancient Documents and Rule 403 270

XII. Market Reports, Commercial Publications: Rule 803(17) 271A. Text of the Rule 271B. Foundational Elements 272C. Need + Reliability = 1 272


D. Use Note 272XIII. Learned Treatises: Rule 803(18) 273

A. Text of the Rule 273

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B. Foundational Elements 274C. Need + Reliability = 1 274


D. Use Note 275

Chapter Four. Rule 804 Exceptions 279I. In-Court Testimony Unavailable: Rule 804(a) 281

A. Text of the Rule 281B. Who or What Must Be Unavailable? 282C. Unavailability Defined 283

II. Former Testimony Exception: Rule 804(b)(1) 286A. Text of the Rule 286B. The Three Principal Versions of the Former

Testimony Exception, and the Foundational Elements of Each 286

1. Criminal Cases under the Federal Rules ofEvidence 287

2. Civil Cases under the Federal Rules of Evidence 2883. The Proposed Federal Rules, Which Are the

Rules Adopted in Some States 288C. The Difference in the Three Variations in the

Rule Summed Up in Three Sentences 289D. Need + Reliability = 1 289


E. Use Note 2901. Other Ways to Get Former Testimony around

the Hearsay Rule 290a. Much Former Testimony Is Not Hearsay in

the First Place 290b. Much Former Testimony Fits under Other

Hearsay Exceptions 291c. Do Not Give Up on Former Testimony Just

Because the Former Testimony Exception Does Not Work 292

2. Predecessor in Interest 292a. Predecessor in Interest 292b. Mutuality of Interest 294c. Community of Interest 294

3. Opportunity to Examine the Witness 296

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4. Similarly Motivated to Examine the Witness 2975. Grand Jury Testimony Summarized 305

III. Statements under Belief of Impending Death:Rule 804(b)(2) 306A. Text of the Rule 306B. Foundational Elements 306C. Need + Reliability = 1 307


D. Use Note 3091. Unavailability— By Death or Otherwise 3092. The Imminence of Expected Death 3103. Evidence of a Belief in the Imminence of Death 3114. The Statement Must Relate to the Cause or

Circumstances of the Anticipated Death 3145. The Competence and Confusion of the

Declarant and the Danger of Unfair Prejudice Associated with the Statement 314

IV. Statements against Interest: Rule 804(b)(3) 318A. Text of the Rule 318B. Foundational Elements 318C. Need + Reliability = 1 319


D. Use Note 3201. Timing 3202. The Extent to Which the Statement Must Be

against the Declarant’s Interest 3203. A Statement Partly against the Declarant’s

Interest and Partly in the Declarant’s Interest 3224. Corroboration 323

V. A Comparison: Statements by a Party Opponent versus Statements against Interest 329

VI. Statement of Personal or Family History:Rule 804(b)(4) 331A. Text of the Rule 331B. Foundational Elements 331C. Need + Reliability = 1 332


D. Use Note 333

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1. The Relationship between This Exception and Rule 803(19), the Exception for Reputation Concerning Personal or Family History 333

2. Admission of Evidence beyond the Fact of the Event or Relationship— The Details 333

3. Competence and Double Hearsay, and This Exception 334

VII. Forfeiture by Wrongdoing Exception: Rule 804(b)(6) 335A. Text of the Rule 335B. Foundational Elements 335C. Need + Reliability = 1 335


D. Use Note 3361. The Motivation behind Procuring Unavailability 3362. The Subject Matter of the Statement 3363. The Exception Is Not Available to Both Parties 3374. Unavailability Procured by the Wrongdoing of

a Coconspirator 3385. Arguing This Exception in the Hearing of the

Jury 3386. Action outside of the Rule As Literally

Interpreted 340a. Action Other Than Wrongdoing 340b. The Turncoat Witness — Wrongdoing That

Does Not Result in the Testimony of the Witness Being Unavailable, but Results in the Witness Telling a Different Story 342

Chapter Five. The Residual Exception — Rule 807 343I. Know This If Nothing Else 344II. Text of Rule 807 345III. Foundational Elements 345

A. Five Required Findings . . . 345B. . . . Reduced to Three Required Findings 346

IV. Need + Reliability = 1 347A. The Need for, and the Reliability of, the Evidence 347


B. The Need for the Residual Exception 347V. Use Note 349

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A. Near-Miss Evidence — The Relationship between the Residual Exception and the Specific Exceptions of Rules 803 and 804 349

1. The Argument That Near-Miss Evidence Can Be Admissible under the Residual Exception 350

2. The Argument That Near-Miss Evidence Is Not Admissible under the Residual Exception 352

3. The Answer to the Question of Whether Near-Miss Evidence Can Be Admissible under the Residual Exception 354

a. Defining the Words Used in Rule 807 354b. The Basic Approach of the Rules of

Evidence 354B. Grand Jury Testimony 356C. Notice — Use of the Residual Exception Requires

Notice in Advance of the Trial or Hearing 3611. The Substance of the Notice That Must Be Given 3622. The Timing of the Notice That Must Be Given 3633. The Form of the Notice That Must Be Given 3654. A Conclusion Regarding Notice 365

D. Trustworthiness 3661. Trustworthiness As Measured against the Other

Exceptions 3662. Focus on the Statement, Not the Declarant 3703. Focus on the Circumstances at the Time the

Statement Was Made, Not Hindsight 3704. Corroborating Evidence Is Not a Circumstantial

Guarantee of Trustworthiness 3715. The Trustworthiness of the Statement of an

Incompetent Declarant 372E. Probative Value 373

1. Probative Value in General 3732. The Turncoat Witness — Using This Exception

to Admit Prior Statements by Witnesses Who Take the Stand and Change Their Stories 374

F. Using the Residual Exception to Promote Social Agendas 383

G. The Residual Exception in Child-Abuse Cases 385H. Findings Made on the Record 388I. Miscellaneous Uses of the Residual Exception 388

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Chapter Six. Rules of Civil and Criminal Procedure as Hearsay Exceptions 391

I. Rule 32 of the Federal Rules of Civil Procedure 392A. Overview 392B. Text of the Rule 393C. Foundational Elements 395D. Need + Reliability = 1 396


E. Use Note 3981. This Rule Applies in Civil Cases Only 3982. Depositions Offered in Cases Other Than the

Case in Which They Were Taken 3983. Objections to Evidentiary Problems within

the Deposition, Including Multiple Hearsay 4004. Against Whom the Deposition May Be Used 4005. The Witness Who Is Over 100 Miles from

the Courthouse 4016. Procuring the Absence of the Declarant 4027. Old, Infirm, or in Prison and Unavailable 4038. Deposition Strategy 4049. Error in Refusing to Allow the Use of a

Deposition May Be Harmless Error 40510. Ex Parte Depositions 40611. The Evidentiary Burden 40612. Miscellaneous Points 406

II. Rule 15(e) of the Federal Rules of Criminal Procedure 407A. Text of the Rule 407B. Foundational Elements 408C. Need + Reliability = 1 409


D. Use Note 4101. Cross-References 4102. Application of the Rule 4103. Use of Depositions in Criminal Trials Is

Disfavored 4124. Rule 15’s Requirement of Unavailability or

Inconsistency 412a. Unavailability 412

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b. Inconsistent Testimony 413III. The Non-Exclusivity of These Rules 414

Chapter Seven. State-of-Mind Evidence 417I. Introduction 418II. Eight Ways of Handling State-of-Mind Evidence 418

A. Live, Firsthand Testimony: Nonhearsay 418B. Verbal Acts: Nonhearsay 418C. Statements That Circumstantially Assert the

State of Mind of the Speaker: Nonhearsay 420D. An-Out-of-Court Statement Offered for Its

Effect on the Person Who Heard It: Nonhearsay 423E. An Out-of-Court Statement That Directly Asserts

the Declarant’s Then-Existing Mental State: Hearsay 430F. An Out-of-Court Statement of the Declarant’s

Intention Offered as Evidence That the Declarant Did the Thing Intended: Hearsay 431

G. An Out-of-Court Statement of Another’s Intention Offered as Evidence That the Other Person Did the Thing Intended: Hearsay 433

H. An Out-of-Court Statement Reflecting Back on a Past State of Mind, Offered to Prove State ofMind at That Time Past: Hearsay 433

III. State-of-Mind Evidence and the Question of Relevance 434A. Introduction 434B. Nonhearsay State-of-Mind Evidence That Is

Irrelevant 434C. Nonhearsay State-of-Mind Evidence That Is

Inadmissible under Rule 403 436D. Conclusion 439

Chapter Eight. Opinion Evidence As a Way around the Hearsay Rule 441

I. Expert Opinion 441A. Text of Rules 702 and 703 441B. “Foundational” Elements 442C. Need + Reliability 442


D. Use Note 4431. Identifying and Qualifying the Expert 443

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2. The Importance of Expert Witnesses to a Discussion of the Hearsay Rule 445

3. The Expert’s Reliance upon Inadmissible Evidence Must Be Reasonable 451

4. Basis Evidence 454a. Defining the Problem 454b. The Problem Is Resolved with One Form or

Another of a Balance between Probative Value and Prejudice 456

c. Some Specific Situations Where Basis Evidence Is Categorically Inadmissible 459

d. Corroborating Opinions Offered As Basis Evidence 461

e. Basis Evidence Alone Will Not Get a Cause of Action to the Jury 464

f. Other Factors Relevant to Whether Basis Evidence Is Admissible 465

g. Basis Evidence and Limiting Instructions 466h. Summary 468

II. Lay Opinion 469A. Text of Rule 701 469B. Lay Opinion Based on Hearsay 469C. Situations in Which Counsel May Need to Have

a Putative Expert Testify As a Lay Witness 477

Chapter Nine. Miscellaneous Other Ways around the Hearsay Rule 479

I. Trial to the Judge 479II. Background Evidence 480III. Rule 106 As a Hearsay “Exception” 482IV. Judicial Notice 484V. Trial by Affidavit in Bankruptcy Court 486VI. Opening Statements and the Hearsay Rule 487

Chapter Ten. Having Found One Way around the Hearsay Rule, Keep Looking for Others 491

I. Stack Up the Exceptions 491II. Put on Evidence of All of the Foundational Elements

for Each Exception in the Pile 499III. Stacking Up the Exceptions, of Course, Does Not

Always Work 499

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Chapter Eleven. Multiple Levels of Hearsay and Rule 805 501I. Multiple Levels of Hearsay and Rule 805 501II. Text of Rule 805 504III. For Multiple Hearsay to Be Admissible, There Must

Be an Exception or an Exclusion for Each Layer 504A. Multiple Applications of Definitional Exclusions 505B. Multiple Applications of Exceptions 505C. Multiple Applications with a Mix of Exclusions

and Exceptions 507IV. In Some Courts, Certain Exceptions or Exclusions

Cleanse Preceding Levels of Hearsay 508V. Multiple Hearsay and Rule 403 509

Chapter Twelve. Evidence That Is Inadmissible Hearsay to One Issue and Either Nonhearsay or Admissible Hearsay to Another 511

I. Introduction 511II. Redact the Statement 512III. Apply Rule 403 513IV. Consider a Limiting Instruction 517

Chapter Thirteen. Competency: The Declarant’s Competence and the Hearsay Rule 519

I. Competency As Another Way to Look at Many of the Hearsay Cases 519

A. Out-of-Court Declarant Must Have Personal Knowledge of the Facts Declared 519

B. The Advisory Committee Note to Rules 803 and 806 and Rule 602 522

1. The Advisory Committee Notes to Rules 803 and 806 522

2. Text of Rule 602 522C. Competency As Another Way to Look at Many

of the Hearsay Cases 522II. Using Hearsay to Avoid Incompetence 527

A. Some Hearsay Exceptions and Exclusions Excuse the Out-of-Court Declarant’s Lack of Personal Knowledge 528

B. Some Hearsay Evidence Can Be Used Even Though the Declarant Was and Is Incompetent 529

C. Modern Trend? 532Index 535

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The Hearsay Rule - Carolina Academic Press Hearsay Rule G. Michael Fenner Professor of Law,...

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