Hearsay is the bane of a litigator’s life—confusing, complex, and often counter-intuitive. My friend and mentor, the late Prof. Richard T. Farrell, would tell his students that the hearsay rule was easy: “No,” as in not admissible. He would then spend several weeks teaching hearsay’s nuances.

In Nucci v. Proper, 95 N.Y.2d 597 (2001), the Court of Appeals explained “out-of-court statements offered for the truth of the matters they assert are hearsay and ‘may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable’ … In determining reliability, a court must decide ‘whether the declaration was spoken under circumstances which render[] it highly probable that it is truthful.’”

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