I once posted using Simone, a tertiary but crucial character in the 1986 classic Ferris Beuler's Day Off. See Perceptions about Adjudication (February 2016). Yes, Virginia, this blog has been around a long, long time.
This is a great way to teach people about the challenges of hearsay, which was the main theme for the 2016 post. Simone, sincere as the day is long, explains Ferris' absence with:
"my best friend's sister's boyfriend's brother's girlfriend heard from this guy who knows this kid who's going out with the girl who saw Ferris pass out at 31 Flavors last night. I guess it's pretty serious."
As one might note in our current vernacular, OMG, ROFLOL, or TMI.
I found myself thinking of Simone recently as I read a story on the British Broadcasting Corporation page regarding a fellow who made some comments regarding the COVID pandemic, or who perhaps did not. He is caught up in some kind of a government investigation over in Great Britain, a beautiful country with some quaint and scenic attractions that everyone should experience once.
The headline on this piece is catchy, it claims this government official (now Prime Minister) at some point uttered the phrase "just let people die" (that quote is in the headline). Ouch. Um, o.k., just ouch. Can you imagine? Well, that certainly led to reading the story.
The allegation regarding this comment comes from Patrick. Patrick made a note in his diary in October 2020. So Patrick's diary note quoted Dominic. Domonic allegedly said to Patrick that "Rishi thinks just let people die . . . .."
There is some unpacking to do here.
First, note that this discussion is about hearsay, and the above example is used as a teaching tool. The story is about Britain, about a government inquiry, and this post in no way suggests that their process or outcome is governed or influenced by American or Florida law. Having said that, I will undoubtedly still hear from Stadtler and Waldorf. I love those guys.
What is hearsay? Section 90.801, Fla. Stat. says
“'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
So, the purpose of evidence ("to prove the truth"), is critical. The nature of the evidence ("other than . . . at the trial or hearing") is critical. There are a raft of exceptions to the hearsay rule. So many lawyers hear "objection hearsay" and jump to quote exceptions to the judge. STOP! Step one, is it hearsay? Is it submitted for the truth?
In the Great Britain example, does it matter whether the alleged comment is or is not true? Is someone trying to prove that we should "let people die?" Or, is the point about the impact on the listener? If the truth of that statement is not at issue, then the statement is not hearsay. The exceptions are not necessary.
Back to Simone. The statement "just let people die" is in the headline, but not in the body of the story. The story instead says that a diary note written by Patrick says that Domonic says that (he believes) someone else (Rishi) has thoughts on death. See, there is no expression reported there by Domonic that Rishi said that.
Thus, even if the diary were admitted into evidence (clearly written outside of the hearing) to prove the truth of the matter asserted (that Rishi said something), it might not support that conclusion. At best, it seems the writing might support that Domonic said (hearsay) what he thought someone else thought. I think you are a big Dallas Cowboy's fan. I have sent an email to that effect to Patrick in hopes he will put it in his diary. You live with the consequences. Sorry.
This is a tangled web that lawyers and judges face persistently. Is the diary note hearsay? Depends on what you are trying to prove. If the issue is whether Patrick was alive on that date, then the existence of the diary entry may be relevant, regardless of its truth. Whether it says something about what Domonic said or something about seeing a rabbit in the garden, the existence of the entry might prove Patrick was alive.
But, if the diary entry is evidence of what Rishi said, then there may be a serious hearsay problem.
And, because that note is a product of what Domonic said, then we must discern if what Domonic said is hearsay. Why is it introduced? If to prove Rishi said this particular something, then likely hearsay. But, if to prove Domonic and Patrick spoke on that day, then likely not hearsay.
And, if what Domonic said is based on what Rishi said (an out-of-court statement), is Rishi's comment hearsay? That depends similarly on the purpose. If to prove a material fact (callousness, disinterest, etc.) then perhaps hearsay. Perhaps you say? Well, with the information provided, there is no allegation of what Rishi "said." So, the statement of Rishi (at least as reported by BBC) is not a statement. Thus, there is no hearsay issue with Rishi, but it begins with Domonic's recitation of his perceptions and feelings about what Rishi thinks.
See, that whole analysis leads us to section 90.805 where we learn about "hearsay within hearsay." The statute says that "each part of the combined statements" must "conform with an exception to the hearsay rule." Thus in a compound Partick, Domonic, Rishi analysis, each statement must be considered from the standpoint of "is it hearsay," and if yes, then "what exception could apply?"
Evidence, you see, can be challenging and intriguing. Those who do not practice law will struggle with the intricacy. Don't feel too bad, I have seen many who practice law struggle with it just the same.
The process becomes simpler if you break it down
- What is the point (truth or other)?
- If truth, does the statement meet the prohibition (out of court)?
- Is there an exception that is applicable?
- Is the statement singular, or compound (Patrick, Domonic, Rishi)?
- If compound, is there an out ("not hearsay" or a specific exception) for each element or step?
Take it one step at a time. Like much in life that is complicated, breaking it into smaller bites may make digestion easier, or the bites easier for the judge to swallow.
