I posit to you the following hypothetical trial situation. You have your own client on the stand and are conducting his direct examination. You have a letter that your client had written to the opposing party some two years prior to the date of the testimony. You have it marked for identification and you show it to your client, of course, having previously given a copy to opposing counsel. You ask your client if he recognizes the letter and he indicates that he does. As you get ready to ask your next question, opposing counsel objects. Objection? What could he possibly be objecting about?

“Hearsay,” declares opposing counsel. “The letter is hearsay and inadmissable.”

You are taken aback, to put it mildly. After all, you have your client on the stand, it is a letter that was written by him and he has identified it. You look at the Judge. She, being an empathetic person, looks down upon you with a wry smile. She senses your surprise and consternation but, nevertheless, declares to you, “Yes, Mr. Zlotnick, the letter is hearsay. Objection sustained.”

You quickly pull out your Rules of Evidence as you want to mount an argument to admit the document. Nevertheless, as you do, it becomes clear that opposing counsel was one step ahead of you and the judge, likewise, knew her rules of evidence. They are right and you are wrong.

Under Rule of Evidence 801(c), “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.” Obviously, the letter was a statement not made at the time of trial, but outside of the court. Certainly it was being offered to prove the truth of what your client said in that letter. Yes, the letter was, indeed, hearsay and facially inadmissable.

Nevertheless, you are not and should not be ready to concede. What about Rule 803(b)? A very quick scan, even in the heat of the moment in a trial, clearly indicates that it is no help to you. That rule clearly deals with statements by party opponents which are offered against that party. As is clear, your statement is by your own client and is not covered by 803(b).

Thus, you find yourself in a situation that you as a trial lawyer may intuitively find to be absurd. A statement made by your client, identified by your client, undoubtedly and beyond question authentic, is facially inadmissable. At this point, you are now in the position of having to argue to the court that while the letter is hearsay, it should be admissible under one of the numerous exceptions to the hearsay rule, under Rule 803. There, your job may be easier, but the question becomes how to fit it within some exception.

For example, an exception to the hearsay rule which is not dependant on the declarant’s unavailability is Rule of Evidence 803(a), dealing with prior statements of witnesses. While the person on the stand may be your client, that person, nevertheless, is a “witness at a trial or hearing….” It is a statement previously made by a “person.” However, the rule seems to indicate that, as it is your own client who is on the stand, you may only have Rule 803(a)(2) available to you. You would be able to use his letter to rebut an express or implied charge of recent fabrication against your client or improper influence or motive. This seems to be a complicated route to go to justify admission of a writing that was made by the witness on the stand.

A scroll down the balance of exceptions to the hearsay rule likewise makes it clear that you are going to have to either interrogate your client to prove the facts of one of these exceptions or, at least, initially make the legal argument to the judge that the letter fits within one of them. If you are seeking, for example, to have it admissible as a present sense impression under Rule of Evidence 803(c)(1), you are probably going to have to ask your client when the letter was written in relation to an event or condition, how your client perceived the event or condition and, at least, ask the question as to whether or not it has been fabricated or deliberately changed. Wow!

One last example would be Rule 803(c)(3) dealing with a then-existing mental, emotional or physical condition. If, in fact, the writing satisfies these initial criteria, you might be able to get it in as such a statement, but, again, it would appear that you will have to interrogate your own client, at least to the extent of whether the statement was consistent with the state of mind he had at that time (a somewhat awkward question), or an emotion, sensation or physical condition. Again, a lot to go through.

That would appear to be the situation under our New Jersey Rules of Evidence. Under the Federal Rules of Evidence, you might not have to undergo such an apparently unnecessary exercise. Federal Rule of Evidence 807 is referred to as either the “residual exception” or the “catchall exception.” See New Jersey v. Dudley, 269 N.J. Super. 632, 635, n.5 (1993). Under this rule — which was not adopted in New Jersey — when something is not explicitly covered by the exceptions to the hearsay rule but has “equivalent circumstantial guarantees of trustworthiness,” it is not excluded by the hearsay rule if: (a) the statement is offered as evidence of a material fact; (b) the statement is more probative on the point than other evidence that can be procured through reasonable efforts; and (c) the general purposes of the Federal Rules of Evidence and the interest of justice would best be served by admission of the statement into evidence.

The caveat to this rule is that the statement may not be admitted unless the proponent had made known to the adverse party, sufficiently in advance of the trial or hearing, the proponent’s intention to offer the statement and the particulars, including the name and address of the declarant. As stated by the court in United States v. Mathis, 559 F.2nd 294 (D. Ala. 1977), “this residual hearsay exception was designed to encourage the progressive growth and development of federal evidentiary law by giving courts the flexibility to deal with new evidentiary situations which might not be pigeon-holed elsewhere.” It would seem, at least facially, that had New Jersey adopted this residual hearsay exception, the letter written by your client would have been admitted without very much additional testimony as long as you satisfied the rule’s preconditions.

If, in fact, what has been posited in this article is correct — that your own client’s letter or, for that matter, any other writing or statement made by your client outside of the courtroom — is, in the first instance, hearsay, then our Supreme Court might want to revisit the residual hearsay exception rule found in Federal Rule of Evidence 807. Again, it is certainly counterintuitive to our thinking as lawyers and litigators to believe that something that was done by the person on the stand and fully identified, cannot come into evidence unless it can be shoe-horned into an exception to the hearsay rule. Certainly, opposing counsel would not be deprived of the opportunity to cross-examine on the letter since the person who wrote it is sitting on the witness stand. Moreover, opposing counsel, having the benefit of Rule 803(b), could have virtually free reign in bringing in any other statements made by your client to attempt to impeach your client’s credibility not only on the statement that was admitted, but on any other material fact of the case.

I have a feeling that this issue does not come up very often. I experienced it once in all of the cases that I have tried over lo these so many years of practice. It would not surprise me at all if even experienced litigators overlook the fact, or simply cannot believe, that a document or statement made by the witness, out of court, even though made by the witness on the stand, is hearsay and facially inadmissible. If this article has helped to educate some of us on what might be considered an obscure, but, I think, relevant evidentiary issue, then I am certainly glad that I have put pen to paper on it.

Next Week…

Employment Law