Three types of evidentiary claim – hearsay rule illustration

A logocratic scheme for analyzing every single evidence claim in a case calling for application of a rule of evidence

Note: "h_n" is an element in a claim, charge, or defense -- i.e., a "material" element. Every case specifies a set of h_n -- h_n-1, h_n-2, h_n-3, etc.

This question actually consists of two component questions. Using our  - h schema, we can represent these two questions as follows

(1) What logical element(s) is (are) required to satisfy the rule? -- label the element "h_n" (or "h_n-1, h_n-2, h_n-3 . . .")

(2) What decisionmaker, judge or jury, decides whether the evidence available establishes logical element? -- label that evidence "_n " to correspond to h_n (or "_n-1 , _n-2 , _n-3 . . .")

Note that for many of the FRE [Federal Rules of Evidence], there are many pairs of _n / h_n: _n-1 / h_n-1, _n-2 / h_n-2. For example, for [Federal Rule of Evidence] 801(a)-(c), there are

h_n-1 there is a statement

h_n-2 the statement was made by a declarant

h_n-3 the statement is offered for the truth of the matter asserted

For each element h_n-1, h_n-2, and h_n-3, there will be evidence used to establish it, _n-1, _n-2 , and _n-3, and some decisionmaker must decide whether the evidence supports the element. In this case, we know from FRE 104 that the judge is to decide whether the logical elements h_n-1, h_n-2, and h_n-3 are all satisfied. If she decides that they are all satisfied, then she must further decide whether the logical elements of some exemption or exception are also satisfied.

There must be some evidence, in our schema we'd label it "_n-1" that a decisionmaker uses to establish h_n-1. If the law of the jurisdiction treats the question whether h_n-1 is established as a question of conditional relevance, then the jury is given the question whether whatever _n-1 is available establishes h_n-1. (Only, of course, if the judge first decides that whatever _n-1 is available is sufficient for a reasonable jury, operating according to the appropriate burden of persuasion, to find that _n-1 establishes h_n-1).

Non-law-related evidentiary claim

This might be a slightly misleading term, but it's intended to describe evidentiary claims that are made outside the formal confines of trial procedures. Obviously such claims occur in a vast range of settings, some on jobs, others in "everyday life." Here are some examples of non-law-related evidentiary claims that come up with a Google search of the phrase "evidence does not support":

"But the evidence does not supporta correlation between serum vitamin B(12) or folate and cognitive impairment in people aged over 60 years."

"The Available Evidence Does Not Support Fossil Fuels as the Source of Increasing Concentrations of Atmospheric Carbon Dioxide."

"Vaccines and Autism: Evidence Does Not Support a Causal Association."

Obviously any setting for a non-law-related evidentiary claim could become associated with litigation, and in that way could somehow figure in a substantive-law-related evidentiary claim or in an adjective-law-related evidentiary claim (these terms are explained below). Note that, despite not being made within the confines of formal litigation, non-law-related evidentiary claims are extremely important for evidence law. That's because these are the kinds claims on which judges and juries rely pervasively when they deploy the "every day common sense" that underwrites the inductive inferences they make when they are involved as decisionmakers in formal litigation.

Substantive-law-related evidentiary claim

The phrase "substantive law" refers to the body of rules that determine the rights and obligations of individuals and collective bodies in all categories of public and private law, including contracts, property, torts, and criminal law. "Substantive-law-related evidentiary claims" are claims about the evidence that supports the hypotheses that are specified by rules of substantive law as logical elements of claims, charges, or defenses. Here's an example from the substantive law of contracts -- the rule for promissory estoppel:

"A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires."

h_n-1 There is a promise.

h_n-2 The promise is one for which the promisor should reasonably expect to

induce action or forbearance on the part of the promisee or a third person

h_n-3 The promise does induce action or forbearance on the part of the promisee

or a third person on the part of the promisee or a third person.

h_n-4 Injustice can be avoided only by enforcement of the promise.

h_n-5 The promise is binding.

Logical form of this rule:

If (h_n-1 & h_n-2 & h_n-3 & h_n-4) then h_n-5

For each of these logical elements h_n-1, h_n-2, h_n-3, and h_n-4, substantive contract law requires that there be some evidence that is adequate to support the conclusion that the element is satisfied -- evidence that we can label, in our scheme, "_n-1," "_n-2," _n-3" and "_n-4," respectively. That is, in contracts litigation, a plaintiff who wanted to claim that there was a binding promise under this rule (i.e., that what is labeled above as "h_n-5" is true on the facts of the case) would have to provide evidence that each element in the rule is satisfied. So for example, evidence for h_n-1 in a given case might be testimony.

h_n-1 The plaintiff testified that the defendant promised to pay for her son's

medical treatment

could be offered to prove

h_n-1 There was a promise by the defendant to pay for the plaintiff's son's medical treatment.¹

Interesting question: What kind of evidence might the plaintiff proffer to prove the element labeled "h_n-4"? With delightful understatement, a state appellate court that has adopted the version of the promissory estoppel rule quoted above notes that this element of the rule "is not cast with precision." Midwest Energy, Inc. v. Orion Food Sys., Inc., 14 S.W.3d 154, 161 (Mo. App. E.D. 2000). That vagueness creates an interesting question regarding how a litigant is to go about providing evidence to prove it!

Adjective-law-related evidentiary claim

The phrase "adjective law" is a somewhat archaic but useful phrase that refers to those rules of law that govern evidence, pleading, and procedure. The analogy is to grammar: adjectives modify "substantives" (like nouns and pronouns), and adjective law "modifies" (or, better way to put it, facilitates) substantive laws. It can be very analytically clarifying to note that the application of rules of evidence itself calls for a wide variety of evidentiary claims that are distinct from substantive-law-related evidentiary claims. It is to this type of evidentiary claim that I intend to refer with the phrase "adjective-law-related evidentiary claim." Adjective-law-related evidentiary claims are claims about the evidence that supports those hypotheses that are specified as logical elements by a rule of evidence law or a rule of pleading or procedure. Here's an example from the evidence law -- the rule defining hearsay in FRE 801:

Rule 801. Definitions . . .The following definitions apply under this article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "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.

h_n-1 There is a statement.

h_n-2 The statement was made by a declarant not while testifying at the trial or

hearing.

h_n-3 The statement is offered for the truth of the matter asserted.

h_n-4 The statement is hearsay.

Logical form of this rule:

If (h_n-1 & h_n-2 & h_n-3) then h_n-4

Evidentiary requirements of this rule:

Note that for many of the FRE there are several pairs of _n/h_n: _n-1/h_n-1, _n-2/h_n-2, because the rules often specify more than one logical element that must be satisfied in order to satisfy the rule. Thus, in the example above of 801(a)-(c), there are three logical elements, h_n-1, h_n-2, and h_n-3 (which are called "jointly sufficient conditions") such that, when all three are true, h_n-4 is true as well.

For each element h_n-1, h_n-2, and h_n-3, there will be evidence used to establish it, which we can label "_n-1," "_n-2," and "_n-3," respectively, and some decisionmaker must decide whether the evidence supports the element (hypothesis) for which the evidence is offered. In this case, we know from FRE 104 that the judge is to decide whether the logical elements in FRE 801, h_n-1, h_n-2, and h_n-3, are all satisfied. If she decides that they are all satisfied, then she must further decide whether the logical elements of some exemption or exception are also satisfied. Note that substantive-law-related evidentiary claims are also claims about pairs of _n / h_n: _n-1 / h_n-1, _n-2 / h_{n-2 .} . . . The difference is that those claims are made to satisfy the logical elements of rules of substantive laws, whereas adjective-law-related evidentiary claims are made to satisfy the logical elements of rules of evidence and procedure.

Notes on adjective-law-related evidentiary claims and substantive-law-related evidentiary claims

(1) There are three questions the evidence analyst should always be able to answer when applying a rule of evidence to a fact pattern (that is, when making or evaluating an adjective-law-related evidentiary claim):

(i) What are the pairs of _n / h_n (the logical elements of the rule) specified by the rule in question?

(ii) Who decides whether the given _n establishes the h_n , judge or jury?

(iii) Under what standard of proof does the decisionmaking identified in (ii) make the decision?