Blog Ipsa Loquitur

Published on under Legal Theory

During a trial, a lawyer isn’t permitted to speak directly to the jury outside the opening and closing statements. But the opening statement is (theoretically) a preview of the evidence, and the closing statement is a summation of the evidence. So to actually present the evidence, lawyers use witness testimony. “I saw the robber point his gun at the victim.” “The blue car ran a red light and hit the plaintiff’s car.” And so on.

A lawyer also gets a chance to discredit the testimony of her opponent’s witness by asking things like “what kind of gun? How far away from the robber were you? Were you behind the victim, or behind the robber? How dirty were your glasses?” or “Were you watching the car, or the light? Where was the plaintiff’s car? My client’s car has a dinosaur sticker on the bumper: did you see any such sticker on the blue car?” Now we get to hearsay.

Hearsay is, briefly, testimony by proxy. The witness is not telling the jury what he saw: he’s telling the jury what someone else claims to have seen. This is problematic for a number of reasons.

I Heard It’s Not a Big Deal

In ye olden days, the big problem was that the testimony was (ultimately) coming from someone who wasn’t under oath. Sure, the guy on the stand swore to tell the truth with his hand on a Bible, but he’s just saying “Frankie Two-Face told me the blue car ran the red light and hit the plaintiff’s car.” Frankie Two-Face could be a two-faced liar, for all we know.

Further, in ye modern days, the role of the oath and Bible in keeping people from lying is… well, diminished. The big concern today is that a lawyer won’t get to cross-examine a witness providing testimony from an out of court statement.

So today, there are two chief reasons for this concern. The first is that the jury can’t see Frankie Two-Face’s face when he says all those horrible lies. Maybe he’s a lousy liar, and the jury would see right through him.

The second reason is that a lawyer cannot adequately cross examine Frankie Two-Face by proxy. The information is coming down a one-way street. Probing questions on cross examination will be met with answers like “I have no idea. Frankie just said that guy looked really guilty to him.” This is the big reason we don’t permit hearsay these days: the absence of any meaningful opportunity to cross examine the real source of the information.

However, as one of my professors said on the first day of law school, “law is ten thousand rules, each with ten thousand exceptions.”

Exception, The Setup for One

My favorite exception (which isn’t technically an exception because a statement falling under this “exception” actually fails to meet the three elements of hearsay under the Federal Rules of Evidence) involves a problem out of my casebook. To be hearsay, a statement has to be offered for its truth, and not for another purpose. Keep that in mind as you read:

Land Lloyd owns a field. Farmer Brown leases that field to grow some corn. Brown grows corn in two plots: one to feed his family, and a bigger one to sell at the end of the year. All goes well for a couple of years, until a home lending crisis all but decapitates the economy, and nobody wants to buy any corn.

Brown takes Mr. Lloyd out to his big plot of land, and explains his predicament. Brown says “All the corn in this plot is yours: I’ll harvest it for you at the end of the year, but it’s yours today if you want.” Mr. Lloyd accepts Brown’s offer.

A month later, the housing problem has started to impact the rest of the economy. Desperate, Farmer Brown borrows some money from the bank and uses his corn as collateral, telling the bank “oh, yes. I own all this corn. Yes, this is definitely my corn.” Sadly, Brown defaults on his loan and the bank takes his corn.

Mr. Lloyd isn’t thrilled about this, since he thought that corn was his. He sues the bank to try to win back his corn. During the trial, Lloyd testifies that Farmer Brown (who has since fled the rest of his creditors, and is nowhere to be found) said the corn belonged to Lloyd. The bank objects to this evidence as hearsay. Is it?

Mr. Lloyd, in this case, is asserting that he owns the corn. So if he offers this statement by Farmer Brown to prove that it’s true that Lloyd (not the bank) is the owner of the corn, it’s hearsay.

But Mr. Lloyd can offer this statement by Farmer Brown for another purpose. Lloyd’s lawyer should respond to the objection by pointing out that it’s not being offered to prove ownership, the statement is being offered as evidence of a verbal act. The statement by Brown had an operative legal effect: it was an offer to engage in a contract (or to modify a contract, which brings in legal issues that are totally unrelated here).

So if Lloyd can testify about this statement by Farmer Brown, can the bank’s loan officer testify about Brown’s statement that he owned the corn? Nope. The jury will never hear that evidence, because it’s hearsay. Brown’s proclamation of ownership has no operative legal effect. Brown’s offer to Lloyd did, and so Lloyd can testify about that all day long.

The answer turns on what Lloyd is testifying about when he says that Brown offered him the corn in place of his usual payment. If Lloyd is using Brown’s statement to convince the jury that the corn belonged to him, it’s hearsay. But if Lloyd is using the statement to convince the jury that a contract existed between himself and Brown, it’s not hearsay. It’s a statement that created a legal relationship.